Central Administrative Tribunal - Delhi
R.S. Sehrawat vs Union Of India on 20 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH:NEW DELHI
O.A. No.2082/2012
Reserved on: 04.12.2012
Pronounced on: 20.03.2013
Honble Dr. Dharam Paul Sharma, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
R.S. Sehrawat
Aged about 64 years
S/o Late Sh. Udai Singh
Retired UDC/Store-Keeper
NBPGR, New Delhi
R/o VPO : Kair, New Delhi-43.
Applicant
(By Advocate: Shri Yudhvir Singh)
VERSUS
1. Union of India
Through Secretary,
Dept. of Agriculture Research & Education
Govt. of India Cum Director General
ICAR, Krishi Bhawan, New Delhi-1.
2. The Director, NBPGR,
Pusa Campus, New Delhi.
3. Finance & Account Officer,
NBPGR, Pusa Campus, New Delhi.
Respondents
(By Advocate: Shri S.S. Lingwal)
O R D E R
Mr. Sudhir Kumar, Member (A):
The applicant of this OA is before us, aggrieved by the orders of the Disciplinary Authority vide Memoranda dated 14.09.2007 through Annexure A-1, dated 30.03.2010 through Annexure A-2, dated 21.04.2010, through Annexure A-3, dated 16.09.2011 through Annexure A-4 and order of punishment dated 31.05.2012 through Annexure A-5, which he has prayed for being quashed, by which a penalty of a cut in his pension @25% including DA has been imposed upon him.
2. The brief facts of the case are that the applicant was an Upper Division Clerk (UDC) posted in the Store Section of the National Bureau of Plant Genetic Resources (NBPGR, for short) and in a particular File No.15 (33)/Purchase/2003, in which he had put up a proposal for making purchases of items/articles, which were required to be kept in the Central Stores for the day to day requirements of Scientists for research purposes in the NBPGR. The said file travelled upto the Director, NBPGR, and a sanction was accorded on the Paper Under Consideration (PUC, for short) which had been put up by the applicant. In the Statement of Articles of Charge served upon the applicant through Memorandum dated 14.09.2007, it was stated that the proposal for purchase was manipulated by the applicant, by wrongly stating that he had obtained verbal indents from 7 different Scientists of NBPGR and that indented items were ordered to be purchased vide orders dated 15 & 17.09.2005.
3. When the bills amounting to Rs.75,572/-, Rs.95,149.60/- and Rs.1,55,064/- relating to three different suppliers came up to be paid, some discrepancies were noticed in the indents, which the Senior Accounts Officer (SAO, for short) had not pointed out at the time of seeking approval of the Director for making these purchases. A Committee of three Scientists was then constituted to look into the matter on the basis of report of the Store Officer on the stock position of the indented items, and the report of that Committee apart from the report of the Store officer, formed the basis of Articles of Charge framed against the applicant, and the SAO, and the then Director, NBPGR were also named in the lists of witnesses through whom Articles of Charge were sought to be sustained. The disciplinary enquiry was held as per the procedure prescribed in the CCS (CCA) Rules, 1965, and admittedly, the Inquiry Officer held that the charges as not proved against the applicant.
4. However, the Disciplinary Authority issued a disagreement note through Memorandum dated 26/30.03.2010 (Annexure A-2), and again through Memorandum dated 21.04.2010 (Annexure A-3) giving out reasons for tentatively not agreeing to the findings of the Inquiry Officer. The applicant, who had superannuated in the interregnum on 30.09.2007, gave his written explanation to the Director, through Annexure A-11, giving therein point-wise reply, numbering 1 to 13, as per the 13 points mentioned in Annexure A-3 by the Disciplinary Authority for tentatively not agreeing to the findings of the Inquiry Officer. However, his explanation was not accepted, and the respondents issued Memorandum dated 16.09.2011 under Rule 9 (2) (a) of Pension Rules, 1972, asking the applicant to show cause against the proposal for imposition of penalty of a cut in his pension @25% including DA, for a period as long as necessary to recover the amount of stores ordered without indent i.e. Rs.8,13,195/-, asking the applicant to submit his response to that show cause notice within 15 days. The applicant furnished his response through Annexure A-12 dated 29.09.2011, which the respondents had admitted to have received on 21.01.2011, as per Annexure A-5 dated 31.05.2012, and, thereafter, the respondents proceeded to order for imposition of penalty of a cut in pension @25% including DA, through the impugned order dated 26/30.03.2010 Annexure A-2.
5. The applicant has assailed the actions of the respondents, stating that he had all through acted bonafide, and the items in respect of which the purchase proposal had been moved by him in File No.15 (33)/Purchase/2003, for purchase of items worth Rs. 3,25,785.60/-, in respect of which pending bills, the Statement of Articles of Charge was issued against him, were all indented by him in pursuance of the Circular dated 06.08.2005 through Annexure A-6 issued by the SAO himself, which stated as follows:
NATIONAL BUREAU OF PLANT GENETIC RESOURCES IARI CAMPUS NEW DELHI-12 No.16(1) Purchase/2003/28/8/15 Dated:6th August, 2005 CIRCULAR I am directed to inform that Purchase Section is compiling a consolidated list of Chemicals, Glassware, Plasticware, Labware, Disposable Misc. Items etc. and Computers related stationery for the next Six months in advance. Therefore, all are requested to give the desire information to the Purchase Section within one week for effective implementation to the undersigned for further necessary action.
Sr. Administrative Officer
6. The applicant has also produced through Annexure A-7 photocopy of the note-sheets of the relevant file, in which the proposal for purchase was moved on 23.08.2005, and approval of the Director, NBPGR, had been granted on 05.09.2005, after first ordering on 23.08.2005 for the SAO to discuss the matter with him, and the following notes had been recorded:
SAO In view of the detail justification given by Store-Keeper & duly endorsed by the Store Officer, the proposal may kindly be considered for approval & Sanction as proposed at Page No.1 to 9 Pl.
Sd/-24/8/05 SAO may pl. discuss Sd/ 25/8/2005 Director Discussed and approved
-sd- 5/9.
7. The case of the applicant is that the Disciplinary Authorities have unfairly judged his genuine and bonafide action, taken in pursuance of the Circular of the SAO issued on 06.08.2005, as reproduced in para 5 above, and in the interest of facilitating scientific research being conducted in NBPGR, so that they are not handicapped in the Bureau, waiting for supply of concerned Chemicals, Glassware, Plasticware, Labware, Disposable Misc. Items etc. and Computer related stationery.
8. The case of the applicant is that if they were not fully satisfied with the indented proposal in the absence of written indents from the staff for purchase of miscellaneous items, then purchased in respect of which the Memorandum of Articles of Charge has been issued to him, then either the Store Officer concerned, or the SAO, or the Director, could have then itself not agreed with the proposal. He has submitted that once the proposal was finally approved by his seniors, he cannot be faulted, and it cannot amount to a misconduct on his part, since all the procurement actions, including the approval and placing of purchase orders, were done by the Procurement Section, without any involvement of the applicant, which seniors could have very well rejected the proposal of the applicant, if they were not in agreement with the same.
9. He has taken a legal ground that the Disciplinary Authority had rejected the findings of the Inquiry Officer on surmises and conjectures, and has not appreciated the fact that the Inquiry Officer had objectively applied his mind, in stating and analyzing the evidence both oral and documentary, before coming to any conclusions for and against the applicant, and had then come to the conclusion that the charges against the applicant were not substantiated. He has further submitted that the Disagreement Note of the Disciplinary Authority disagreeing with the findings of the Inquiry Officer is malafide and perverse. Even though he has mentioned that he has formed only a tentative opinion, it is clear that while not agreeing with the findings recorded by the Inquiry Officer, he had already come to a final conclusion that the charges against the applicant are sustainable, and that the Disciplinary Authority did not give any opportunity to him to make any representation, before finally disagreeing with the findings of the Inquiry Officer, which amounts to a violation of principles of natural justice.
10. He has submitted that if at all a case could have been made out, it could only have been made out against the officials of the Purchase Section, and seniors of the applicant, against whom no action has been taken, and he has been singled out for being prosecuted in respect of his action, after it having been monitored by all the senior officers concerned, as is apparent from the file notings. He has submitted that he has not made any misleading averments even in the note file, and no loss was caused to the Department, as all the identified items were actually supplied and were made available to the NBPGR. He has further alleged that the actual revenue losses claimed in Charge 3 was never quantified (in terms of revenue), keeping in view the stock position of the stores while framing the charge, since the whole purchase amount cannot be the loss of the department, as it has to be stated and proved that as to how much material had gone waste, and what was its worth. Moreover, the leftover/unused material ought to have been returned to the applicant, if recovery for the same was being ordered from his pension.
11. He has taken the ground that no punishment of recovery of any imaginary loss can be made from him, and that no allegation of misconduct can be sustained qua him, when the Honble Apex Court has in a catena of judgments held that misconduct means misconduct arising from ill motive, and acts of negligence, errors of judgment, or innocent mistakes, do not constitute such misconduct, and the Honble Apex Court has in the case of Inspector Prem Chand vs. NCT of Delhi and Others held that error of judgment, or negligence simpliciter, is not a misconduct. The applicant has taken the ground that the Honble Apex Court has held that it was necessary for the Disciplinary Authority to arrive at a finding of fact that the appellant was guilty of unlawful behaviour in relation to discharge of his duties in service which was willful in character, which was certainly not done in his case.
12. The respondents filed a detailed counter reply on 27.08.2012. They have taken the first technical objection that the OA is bad in law for misjoinder of parties, as the Indian Council of Agricultural Research (ICAR, for short) can be sued through only Secretary, ICAR, as per Rule 23 (C) of ICAR Rules & Bye Laws, and, therefore, the impleadment of Secretary DARE, & Director General, ICAR, is not proper, and he needs to be deleted from the array of parties. It was further submitted that this Tribunal would not like to sit as an Appellate Authority over and above the order passed by the Disciplinary Authority concerned, and when it has been proved that the applicant had given indents of miscellaneous items (like markin cloth, jute cloth, aluminum foil roll etc). to the Purchase Section of NBPGR without any requisitions from the officers of NBPGR, and the Storekeeper himself could not have been an indenter, and he had obtained and placed the written indents from scientists only after the orders had been passed, which shows a manipulation of records.
13. It was further submitted that the Disciplinary Authority had, after duly considering the case of the applicant, rightly imposed the penalty of a cut in pension @25% including DA, and that this Tribunal would not like to as an Appellate Authority over and above the order passed by the Statutory Authorities, as there was no malafide on the part of the answering respondents while conducting the disciplinary proceedings against the applicant, and the proceedings were held as per rules prescribed, adhering to the principles of natural justice. They had, therefore, prayed that the OA is liable to be rejected.
14. They had further given para-wise remarks and comments on the various paragraphs of the OA. It was submitted by the respondents that the Circular dated 06.08.2005 informing all the Heads of the Divisions to submit their requisitions to Purchase Section in advance, was for the purpose of compiling a consolidated list of chemicals, glassware, plastic ware, Lab ware, disposables, miscellaneous items, and computer related stationery, but the applicant, the then Storekeeper, had on his own, and without any request from Heads of Divisions, gave indents to the Purchase Section of NBPGR, for the items worth Rs.8,13,195/-. In reply to paras 4-2 to 4.7 of the O.A., it was submitted that while dealing with the case of the applicant, the Disciplinary Authority has also ordered for initiation of major penalty proceedings against one another officer, and the issue has been referred to CVC. But it was submitted that nevertheless, the fact remains that it was the applicant who had submitted the indents for those items, without any actual demands for those items, which were so procured and remained unutilized in the store even after one year of their procurement. They had further tried to justify that the conclusion of the Inquiry Officer was incorrect, and he had erred in holding the charge against the applicant as not proved. It was further submitted that the applicant had himself admitted to have collected the indents later, as late as in December 2005, whereas purchase orders were issued in September 2005, and hence the fact that there was manipulation of the indents also stands proved against the applicant.
15. In reply to paras 5.1 to 5.17 of the OA, it was submitted that the Disciplinary Authority had gone through the records carefully before imposing the penalty and the applicant was given sufficient opportunity and the penalty imposed is as per the gravity of proven misconduct, and it was prayed that the applicant is not entitled to any reliefs from this Tribunal.
16. The applicant thereafter filed a replication to the joint reply filed on behalf of respondents No.2 and 3 on 12.09.2012, more or less reiterating his contentions, as raised in the OA. He had taken the further objection that the respondents No. 2 and 3 had no locus standi to file reply on behalf of respondent No.1, who had not filed a reply. He had also pointed out that the figure of losses to the tune of Rs. 8,13,195/- given by the respondents No.2 and 3 in the order of punishment is totally unrealistic, illegally exaggerated, and beyond the charge-sheet itself, since the charge-sheet dated 14.09.2007 had indicated total amount of Rs.4,54,745.28 in respect of five bills only, and the respondents No. 2 and 3 had thereafter illegally added some more bills, which had already been approved and cleared, in order to raise the figure of losses. He has also submitted that as per the above list the cost of unutilized items is approximately Rs.27,000/- only, and the respondents have tried to cover up their own mistakes, with full malafide intentions, to inflate the figure to Rs.8,13,195/-.
17. He also submitted that he had placed on record the instructions to him, and as the Store Officer, he cannot be said to have taken any action in haste, even though he was In-charge of the Central Store of the NBPGR, consisting of five divisions within the NBPGR, and also eleven regional stations in different States and one experimental station at Village Issapur, New Delhi, and the maximum requirements of the concerned items to these divisions, stations and experimental station are being supplied through this Central Store, of which the applicant was In-charge. It was further submitted that the respondents have tried to mislead the Tribunal by concealing the material points, and it was denied that misconduct of the applicant was of such nature, that he cannot be exonerated. He has further denied any allegations of manipulation of records by him, which allegation is totally misplaced, misconceived and fully motivated, in the light of the file noting submitted through Annexure A-7 of the OA, and the respondents have tried to give a wrong impression that the applicant was alone was In-charge of the entire process of procuring the articles, which was handled and conducted by him alone. It was submitted that his role was limited to only sending the list of items required by different sections of the NBPGR, and no further role was either played by the applicant, nor could he have played, even if he had wanted to do.
18. It was further submitted that the respondents have failed to give details of indents amounting to Rs.8,13,195/-, while only the bills for an amount of Rs.4,54,645/- were withheld and kept pending, and even the Committee constituted by the Director, NBPGR, had examined only those five unpaid bills amounting to Rs.4,54,645/-. The applicant had taken the further ground that his culpability itself has not been explained by the respondents, and that their submissions are false, and bogus, and hence untenable, and, therefore, he had prayed to set aside the impugned orders, and for the recovery of penalty of a cut in pension @25% including DA to be set aside in the interregnum. The applicant has annexed as Annexure A-13 a copy of RTI reply dated 06.01.2012, through which he had received a reply through Annexure A-14 dated 02/09.02.2012, giving the details of the five bills totaling to Rs.4,54,645/-.
19. We have heard the learned counsel for the parties. We have also perused the original disciplinary enquiry file, and have given our anxious consideration to the facts of the case. The report of the Inquiry Officer filed by the applicant as Annexure A-10 is quite revealing. It is seen that the Inquiry Officer had arrived at his assessment based on the enquiry by giving the inference, the conclusion and the remarks on each of the charges levelled against the applicant in a tabular form, and had also summarized his conclusions, and the administrative anomalies observed by him. The respondents have also not able to convince us that the enquiry was conducted by the Inquiry Officer in any manner impermissible under law.
20. Later, the Disciplinary Authority issued Memorandum dated 26/30.03.2010 (Annexure A-2) to the applicant, stating that tentatively he does not agree with the findings of the Inquiry Officer, and will take a final decision after taking into account all the relevant facts and circumstances of the case, and the representation of the charged officer, if any, and had forwarded a copy of the enquiry report to the applicant under Rule 15 of CCS (CCA) Rules, 1965, as Annexure A-2 along with that Memorandum. Three weeks later, Memorandum through Annexure A-3 dated 21.04.2010 was issued to the applicant, stating to be in continuation of the Memorandum 26/30.03.2010, giving the reasons of the Disciplinary Authority for tentatively not agreeing to the findings of the Inquiry Officer, by making 13 points in detail in this behalf.
21. Both these Memoranda dated 26/30.03.2010 (Annexure A-2) and 21.04.2010 (Annexure A-3) had directed the applicant, who had long since retired on 29.09.2007, to give his submissions in writing within 15 days from the receipt of the Memoranda. It is clear from the Annexures A-2 and A-3 that the conclusion for tentatively disagreeing with the findings of the Inquiry Officer was arrived at first, and the reasons for such conclusion to disagree with the findings of the Inquiry Officer have been furnished later. In the case of Commissioner of Police, Mumbai vs. Gordhandas Bhangi : AIR (39) 1952 SC16=(1952) SCR 135, the Honble Apex Court had ruled that any order of the public authority should be speaking and self-contained one, and cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect, and are intended to affect the actings and conduct of those to whom they are addressed, and must be construed objectively with reference to the language used in the order itself.
22. Further, in the case of Mohinder Singh Gill and Another vs. Chief Election Commissioner & Others: (1978) 1 SCC 405= AIR 1978 SC 851= 1978 (2) SCR 272, the Honble Apex Court has held that it is not open to the Administrative Authority to arrive at the conclusion first, and to search for and provide the reasons for the conclusion later, through his subsequent order. It was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned, and cannot be supplemented by fresh reasons, in the shape of affidavit or otherwise, since, otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, may get validated by additional grounds later brought out. Annexures A-2 and A-3 appear to have flouted this basic principle of law, as enunciated by the Honble Apex Court in the above two landmark judgments.
23. It is also seen that Annexure A-4, order dated 16.09.2011, has been issued from the Vigilance Section of the ICAR, Krishi Bhawan, New Delhi, and signed by the Under Secretary (Vigilance) for and on behalf of the President, ICAR, and the same is the case with the impugned final order dated 31.05.2012 Annexure A-5. We are not happy with the Vigilance Officers of ICAR having dealt with a disciplinary enquiry case.
24. In a parallel case of a cut in pension of applicant having been ordered by the respondents, the Jodhpur Bench of this Tribunal, in which one of us [Sudhir Kumar, Member (A)] was a Member in Prem Prakash vs. Union of India in OA 89/2009, decided on 14.12.2011, had held that ordering of a cut in pension of the applicant therein to be illegal, after giving a detailed judgment. It is learnt that the order regarding restoring the cut in pension was contested by the respondents therein, by filing an appeal before the Honble Rajasthan High Court at Jodhpur, and the said order dated 14.12.2011 has since been stayed, but the same has not yet been set aside. The effect of stay of an order does not take away the merits of the order, and the order itself exists, till it is set aside by a superior forum having jurisdiction, which the Honble Rajasthan High Court at Jodhpur has not yet done. The short ratio of that judgment was that the Vigilance Section of an Organization cannot have a Rule in the disciplinary proceedings since under the CCS (CCA) Rules, 1965, no role has been assigned for any 5th mind to be applied apart from the minds of the Disciplinary Authority, the Enquiry Officer, the Appellate Authority, and the Reviewing and Revisional Authority if such a review or revision lies.
25. Applying the principles of law as laid down by the Jodhpur Bench of this Tribunal in the above cited case, it appears to us that the Vigilance Section of the respondent organization-ICAR could not have been involved at all in the process of decisions making by the Disciplinary Authority, or the Appellate Authority, and this being the case of exercise of the powers of the President deemed to have been delegated to the President, ICAR under Rule 9 of the CCS (Pension) Rules, 1972, the above observations in respect of exclusion of vigilance authorities from performing the functions of the Disciplinary Authorities would be more so applicable in the instant case.
26. Also one glaring infirmity in the Annexures A-2 and A-3 purporting to be the orders of the Disciplinary Authority of the applicant is that while the Statement of Articles of Charge against the applicant had mentioned the charges in respect of improper approval and improper indents in respect of only three bills amounting to Rs.75,572/-, Rs.95,149.60/- and Rs.1,55,064/-, totalling worth Rs. 3,25,785/60Ps., surprisingly the final order has been passed for recovery from the applicants pension in respect of indents of Rs.8,13,195/-, which amount is much more than the amount of the bills in respect of which charges had been levelled against the applicant.
27. Also, another glaring violation of procedure followed has been that there have been two notes of dissent from two levels purporting to be the Disciplinary Authority of the present applicant. First of all, the Director, NBPGR, Dr. S.K. Sharma, had passed orders regarding note of disagreement dated 26/30.03.2010 through Annexure A-2, and had then given three weeks later the detailed arguments for his note of disagreement to the findings of the Inquiry Officer through Annexure A-3 dated 21.04.2010. But, it is seen that the Annexure A-4 dated 16.09.2011 is also purporting to be a Note of Disagreement from the Disciplinary Authority. This time the President ICAR has given his findings vide paras 4 to 7 at pages 27 and 28 of the OA. The final order dated 31.05.2012 was passed subsequently in the name of the President, ICAR, through Annexure A-5. Since the applicant had attained superannuation on 29.09.2007, and the powers of the President under Rule 9 of the CCS (Pension) Rules, 1972, were not delegated to the Director, NBPGR, both the orders at Annexure A-2 and Annexure A-3, providing detailed reasons, were passed without any jurisdiction on the part of the Director, NBPGR. The Annexure A-4 mentions about the detailed reasons furnished belatedly for disagreement with the findings of the Inquiry Officer by the Director, NBPGR, vide Memorandum dated 21.04.2010, which were forwarded to the President, ICAR, and, therefore, the paragraphs 4 to 7 of Annexure A-4 have stated as follows:
4. WHEREAS the, President, ICAR in his capacity as the Disciplinary Authority has perused the inquiry Report and has decided to disagree with the findings of Inquiry Officer for the following reasons:-
Article of Charge I says that without any requisition from officers of the NBPGR, the storekeeper (the charged officer) gave indents of Misc items (like Markin Cloth, Jute Cloth, Aluminum foil roll etc) to Purchase Section of the Bureau. While the Inquiry Officer has held that the Store Keeper himself cannot be an indenter, yet has held the Article of Charge-I as Not Proved, on the ground that the Store Officer and Sr AO also allowed the purchase on the basis of said indents of the Charged Officer. It is observed that the Inquiry Officer has erred by holding this charge as Not Proved because culpability of other officers (Store Officer and SAO) does not neutralize the misconduct of the Charged Officer who, just in the span of eight days, placed indents of around Rs Eight Lakh without any actual indents from the officers of the NBPGR.
Article of Charge II states that orders were placed without indents from Scientists and that indents were obtained from the Scientists after the order had been placed. This clearly establishes manipulation of records. This is precisely the Article of Charge II. Therefore, Article of II also stands Proved.
Article of Charge III says that a greater part of the material so indented and received thereafter remained in the store. Given the fact that large quantity of items, purchased in pursuance of Store Keeper, remained in the Store even after more than one year of the receipt of the same points towards unnecessary expenditure causing revenue loss. Therefore, Inquiry Officer has erred by hold the Article of Charge III as not Proved.
5. WHEREAS the Disciplinary Authority has observed that the Inquiry Officer has not considered the case properly and has failed to appreciate the evidence adduced during the inquiry. The Inquiry Officer has given his findings mechanically. The Disciplinary Authority is therefore of the opinion that the Article of Charges against Shri R.S. Sehrawat stand Proved.
6. WHEREAS the Disciplinary Authority, therefore, is of the opinion that it is a fit case of imposition of penalty of a Cut in pension @ 25% (including DA) on Shri R.S. Sehrawat for a period as long as necessary to recover the amount of stores ordered without indent i.e. Rs.8,13,195/- (Eight Lakhs, thirteen thousand, one hundred and ninety five only).
7. Now, therefore, the President, ICAR, before taking a final view in the matter hereby gives an opportunity to Shri R.S. Sehrawat to make his representation, if any, within 15 days of receipt of this memorandum against the proposal of imposition of penalty of a cut in pension @ 25% (including DA) for a period as long as necessary to recover the amount of stores ordered without indent i.e. Rs.8,13,195/- (Eight Lakhs, thirteen thousand, one hundred and ninety five only). Shri R.S. Sehrawat may submit his response within 15 days from the date of receipt of this communication failing which it will be presumed that he has nothing to say in the matter and further action will be taken as per rules.
28. From a combined reading of Annexure A-2 dated 26/30.03.2010, Annexure A-3 dated 21.04.2010, and Annexure A-4 dated 16.09.2011, it is clear that the respondent authorities themselves were not clear about their respective jurisdictions, as both the Director, NBPGR, and the President, ICAR, have called themselves to be the Disciplinary Authority of the applicant, which just cannot be. Any delinquent Government servant can have only one Disciplinary Authority and not two, and similarly for the Appellate Authority and Review/Revisional Authority. Note of disagreement against the findings of the Inquiry Officer could therefore have been issued only by one Disciplinary Authority, and not two as has been done in the case of the petitioner before us.
29. Also, till the date of his retirement on 30.09.2007, the Director, NBPGR, was the applicants Disciplinary Authority. The disciplinary proceedings having been initiated against the applicant prior to his superannuation, the proceedings continued even after his retirement on superannuation, as per the provisions of Rule 9(2) (a) of the CCS (Pension) Rules, 1972, and by virtue of this rules, his earlier Disciplinary Authority (till the date of his retirement on superannuation) could have continued to be his Disciplinary Authority. But, as has been provided for in the Proviso below Rule 9 (2) (a), and further clarified through the Govt. of India OM No. F.19 (9)-EV/66 dated 06.06.1967, the function of the erstwhile Disciplinary Authority becomes confined only to reach a finding on the charges, and to submit a report regarding the findings to the Government for a decision by the President under Article 351-A in consultation with the U.P.S.C., if necessary, would be done by the Government only, and then the necessary orders will be issued in the name of the President. Therefore, it is amply clear that after a delinquent Government Servants superannuation, the status, roles and functions of his Disciplinary Authority gets to be determined by the CCS (Pension) Rules, 1972. Therefore, not only for the purpose of imposition of a final penalty upon him, but also for the purpose of issuance of a note of dissent from the findings of the Inquiry Officer, his Disciplinary Authority after his retirement on superannuation would have to be only the President of India, under Rule 9 of the CCS (Pension) Rules, 1972. Looking from this standpoint, the Director, NBPGR, could not at all have assumed or usurped the role of the applicants Disciplinary Authority, and issued two Notes of Dissent, and the respondents themselves also perhaps realized this, leading to the issuance of the Third Note of Dissent through the Annexure A-4.
30. Therefore, it is amply clear that the respondents have miserably failed to follow the procedure as per law, as prescribed under the CCS (CCA) Rules, 1965, read with the CCS (Pension) Rules, 1972, in conducting the disciplinary proceedings against the applicant, after the submission of the report of the Inquiry Officer. They have also, without any basis or substance or reasons recorded in writing, and without giving an opportunity of hearing in this regard to the applicant, inflated the charge levelled against him to be in respect of an inflated amount of Rs.8,13,195/-, while the memorandum of charge dated 14.09.2007 actually served upon the applicant, just 15 days prior to his retirement on 30.09.2007, had mentioned that charge to be in respect of only three bills, totalling to be worth Rs.3,25,785.60/-Nowhere in the reply as filed by the respondents, it has been brought out or explained as to how this amount inexplicably suddenly got inflated to Rs.8,13,195/-. Even in the RTI reply furnished by the respondents to the applicant, filed by him through Annexure A-13 along with the rejoinder, a mention has been made only in respect of five bills, which do not total up to Rs.8,13,195/-. Even the Committee constituted by the Director, NBPGR, had gone into the cases relating to only five unpaid bills of Rs.4,54,645/-, and thereafter the charge which was levelled against the applicant, served upon him 15 days prior to his retirement, was only in respect of three bills, amounting to Rs. 3,25,785.60/-, out of the five bills totalling up to Rs.4,54,645/.
31. Further, in their counter reply, the respondents have since stated in respect of paras 4.8-4.10 of the OA that while examining the disciplinary case file of the applicant, they had also ordered for initiation of major penalty proceedings against one another officer, apparently in respect of the same bills, and that the issue is being referred to the CVC. Therefore, it is further clear that the respondents were entirely wrong and incorrect in having ascribed and attributed the full responsibility, for purchase of items more than those indented for, only upon the applicant herein.
32. It has already been held by the Honble Patna High Court in Shamsher Bahadur Sinha vs. State of Bihar and others 2004 (1) ATJ 93 that in respect of quantum of loss suffered by the Government due to any malafide act on the part of the Government servant, unless defalcation is proved, and the quantum of loss due to or ascribable to the delinquent Government official can be quantified and ascribed to that particular delinquent Government servant, no punishment of any recovery of any amount can be imposed upon him, and no such recovery can be made from that Government servant, by stating as follows:-
7. I also fail to understand that if the departmental enquiry was not concluded, no findings into the guilt or otherwise of the petitioner were recorded then how an order for recovery of the amount could be passed against the petitioner. From Annexure-2, it appears that the Director has observed that a sum of Rs. 14,495.92, the alleged misappropriated amount would be adjusted towards the memo relating to payment of Rs. 5438.22. The balance amount has been directed to be adjusted from the leave encashment. This order apparently is bad. Unless a finding was recorded by the Director or the Disciplinary Authority that the petitioner committed misconduct and had defalcated the said amount or misappropriated the same, no order for recovery could be passed against him. From Annexure-1, it is clear that the departmental enquiry did not come to its logical end. If that be so, the directions contained in Annexure-2 cannot be allowed to stand. This deserves to and is accordingly quashed.
33. In the instant case, while the respondents are still in the process of fixing the responsibility on another officer also, in respect of the same transactions, as per their own counter reply, and it has never been a case of respondents that there was any defalcation on the part of the applicant, it was all the more reason that the respondents could not have ordered for the recovery of any amount whatsoever from the pension of the applicant, unless the quantum of defalcation, if any, is first charged, and then proved, and an apportionment of the contributory negligence or malafide has been determined, and an amount of loss to be recovered from him has been finally quantified as against the applicant.
34. Also, under the CCS (Pension) Rules, 1972, no orders regarding cut in pension can be ordered, unless gross misconduct is held to have been proved against the retired delinquent Government official. Therefore, also, the orders passed by the respondents cannot be sustained. In this particular case, it is seen that no such finding having been recorded in the case of the present applicant before us, it appears that no recovery for pension could have been ordered by the respondents in his case.
35. Therefore, in the result, it is held that all the impugned Memoranda dated 26/30.03.2010 through Annexure A-2, dated 21.04.2010 through Annexure A-3, issued by the Director- NBPGR, were absolutely without any jurisdiction, as the applicant had superannuated by then, and the Director-NBPGR could not have taken any action against the applicant as his erstwhile Disciplinary Authority, and they are set aside, and the Memorandum dated 16.09.2011, through Annexure A-4, and the order of punishment dated 31.05.2012, through Annexure A-5, are also set aside, because of non-separation of the vigilance function of the ICAR from the process of conduct of the disciplinary proceedings, and also non-application of mind in an independent manner, blindly following the report of the Director, NBPGR, vide Memorandum dated 21.04.2010, and also for having unnecessarily inflated the amount to be recovered from the applicant, without any explanation whatsoever, and without even noticing that even the charge against the applicant had been made out to be in respect of only three bills amounting to Rs.3,25,785/60Ps. It is absolutely clear that orders of recovery of amounts from the applicants pension have been issued on each occasion without any proper application of mind as to the quantified amount, in each of the orders passed by the respondents, or even in the counter reply itself also.
36. Therefore, all the impugned OMs Annexures A-2, A-3, A-4 & A-5 are quashed and set aside. However, Annexure A-1, along with Statement of Articles of charge served upon the applicant, on the basis of which the enquiry was conducted, is not set aside, and the President of India, which is the Chairman ICAR in the instant case, would be free to order for proceeding against the applicant as per the provisions of CCS (Pension) Rules, 1972. But it has to be noted that the departmental enquiry stated by them to have been instituted against another officer also, is also in respect of the same transactions, said to be questionable in nature, and only at the end of both those enquiries, the respondents would be free to quantify and determine the loss to the Government, due to the defalcation proved, if any, which is ascribable to the present applicant alone, in his individual capacity.
37. The O.A. is, therefore, allowed in the light of the above observations, but there shall be no order as to costs.
(Sudhir Kumar) (Dr.Dharam Paul Sharma) Member (A) Member (J) cc.