Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 8 August, 2012
1 OA.186/2007 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. O.A.No.186/2007. Dated this Wednesday the 8th Day of August, 2012. Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A). Akhilesh Kumar Pandey, Ex-Tradesman 'D', Chemical Engineering Division, BARC, Trombay, Mumbai 400 085. R/at: 101, Godavari Apartments, Sector 5, Plot No.67/68, Sanpada, Navi Mumbai-400 705. .. Applicant. ( By Advocates Shri S.P. Saxena with Shri S.G. Pillai ). Versus 1. Union of India, through the Secretary, Department of Atomic Energy, Anushakti Bhavan, CSM Marg, Mumbai 400 039. 2. The Controller, BARC, Central Complex, Trombay, Mumbai-400085. 3. The Head, Personnel Division & Disciplinary Authority, BARC, Central Complex, Trombay, Mumbai-400 085. .. Respondents. ( By Advocate Shri N.K. Rajpurohit ). O R D E R
Per : R.C. Joshi, Member (A).
The Applicant in the present Original Application has impugned order dated 08.06.2006 2 OA.186/2007 passed by Respondent No.2, order dated 20.10.2005 passed by Respondent No.3, Charge-memo issued to the Applicant dated 22.02.2001 and the order of suspension dated 19.12.2000 issued by Respondent No.3.
2. Briefly, the Applicant has been aggrieved by the order of dismissal passed by the Disciplinary Authority vide dated 20.10.2005 which has been upheld by the Appellate Authority vide order passed dated 08.06.2006.
3. The learned counsel on behalf of the Applicant in the pleadings has stated that the Applicant was appointed as Tradesman-A on 24.09.1984 and was working in the Chemical Engineering Division, BARC. He was placed under suspension on 19.12.2000 and served with a charge-sheet vide dated 22.02.2001 containing the following two articles of charge:
ARTICLE-I That the said Shri A.K. Pandey, while functioning as Tradesman 'D' in the Chemical Engineering Division, BARC, demanded and accepted money from certain candidates who had applied for the post of driver in BARC, with promises of giving employment in BARC as Driver.
By his aforesaid conduct, the said Shri Pandey has shown lack of absolute integrity and has thus acted in a manner unbecoming of a Government servant, thereby contravening the provisions of sub-rule 1(i) and 1(iii) of Rule 3 of the Central Civil Services (Conduct) Rules, 1964.3 OA.186/2007
ARTICLE-II That the said Shri Pandey while working in the said office participated in the election campaign of his wife, Dr.(Smt.) Pramily A Pandey, who contested as a candidate in the Bombay Municipal Corporation election held in February 1997 under the banner of Samajwadi Parti, from Bhandup ward No.210, Mumbai.
By this aforesaid conduct, Shri Pandey committed breach of Rule 5(1) and 5(4) of CCS (Conduct) Rules, 1964 and thus acted in a manner unbecoming of a Government servant, thereby contravening the provisions of Rule 3(iii) of the CCS (Conduct) Rules, 1964.
4. The Applicant denied the charges imputed against him and the Disciplinary Authority initiated disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965. The Inquiry Officer after conducting the proceedings submitted his report vide dated 12.11.2003 holding the charges framed against the Applicant as proved.
5. It is the Applicant's contention that the Disciplinary Authority considered the report of the Inquiry Officer and remitted the case back to the Inquiry Officer. It was further stated by the learned counsel that the initial inquiry was concluded on 19.08.2003 after closure of the prosecution case, but the Disciplinary Authority after consideration of the report of the Inquiry Officer remitted the case back to him under sub-rule (1) of Rule 15 of the CCS (CCA) Rules, 1965 vide 4 OA.186/2007 order dated 17.12.2003 (Exhibit A-11). The inquiry proceedings were resumed and the Inquiry Officer submitted his report on 23.09.2004 holding the charges framed against the Applicant as proved. The Disciplinary Authority vide order dated 20.10.2005 imposed the penalty of dismissal from service. The Applicant submitted an appeal vide dated 13.12.2005 challenging the penalty of dismissal from service which was considered by the Appellate Authority and the same was dismissed vide order dated 08.06.2006. The Applicant states that the Appellate Authority has not applied his mind and no personal hearing was given to the Applicant although the same was sought and there was no recording of reasons for rejecting the appeal.
6. The Applicant has relied upon the following judgements in support of his contention:(
i) Anil Amrut Atre Vs. District and Sessions Judge, Aurangabad (W.P. No.2534/2000) decided by the Hon'ble Bombay High Court vide order dated 02.05.2002.
(ii) Tata Engineering & Locomotive Co. Ltd. Vs. Jitendra Pd. Singh and another [2002 SCC(L&S)909].
(iii) O.A.No.333/2006 dated 16.03.2007 [R.C. Maharana Vs. Union of India, through the Secretary, DAE and Ors.
7. The Applicant has sought the following 5 OA.186/2007 reliefs:( A) To call for the records proceedings from the respondents.
and (B) To quash and set aside the Order passed by the Appellate Authority being Ref No.7(78)/2000-Vig/5114 dated 8.6.2006 (Ex.A-1).
(C) To quash and set aside the Order passed by the respondent No.3 being Ref No.7(78)/2000-Vig/2711 dated 20.10.2005 (Ex.A-2).
(D) To quash and set aside the Charge Memorandum being Ref No.7(78)/ 2000-Vig/472 dated 22.2.2001 issued by the Respt No.3 to the applicant (Ex.A3). (E) To quash and set aside the Suspension Order being Ref No.7(78)/ 2000-Vig/2700 dated 19.12.2000 issued by the Respt No.3 to the applicant (Ex.A4). (F) To order and direct the respondents to reinstate the applicant in service forthwith.
(G) To order and direct the respondents to grant all consequential benefits to the applicants, treating the entire period including the suspension period as being spent on duty.
(H) To order any other relief that may be deemed fit and proper in the circumstances and on the facts of the case.
(F) The cost of the application may be ordered.
8. The learned counsel on behalf of the Respondents in the pleadings has stated that the Applicant has challenged the order of dismissal dated 20.10.2005 passed by the Disciplinary Authority and 6 OA.186/2007 order dated 08.06.2006 passed by the Appellate Authority confirming the penalty of dismissal. The Applicant was placed under suspension vide order dated 19.12.2000 and the charge-sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued vide dated 22.02.2001. As the Applicant had denied the charges vide statement of defence dated 09.04.2001, an inquiry was ordered vide dated 16.05.2001. The Inquiry Officer after conducting the proceedings in accordance with the procedure prescribed in Rule 14 of the CCS (CCA) Rules, 1965, submitted his report on 12.11.2003 holding the charges alleged against the Applicant as proved. The Disciplinary Authority on going through the inquiry report observed that the Charged Officer/Defence Assistant were adopting dilatory tactics by not cross examining the prosecution witnesses soon after the examination by prosecution side and not submitting the names of the defence witnesses on behalf of the Charged Officer in time which had compelled the Inquiry Officer to hold the proceedings exparte and submit his report. The Disciplinary Authority decided to give the Charged Officer/Defence Assistant one more chance to cross examine the prosecution witnesses and examine the defence witnesses and, therefore, the case was remitted back to the same Inquiry Officer for further inquiry vide dated 17.12.2003. The Inquiry Officer 7 OA.186/2007 after complying with these instructions submitted his final report on 23.09.2004 holding the charges against the Applicant as proved. A copy of the Inquiry Report was sent to the Applicant vide letter dated 28.10.2004 and the Applicant submitted a written representation dated 16.11.2004 against the inquiry report. The Disciplinary Authority after careful consideration hold the charges imputed against the Applicant as proved and imposed the penalty of dismissal vide order dated 20.10.2005. The Applicant submitted an appeal dated 13.12.2005 and the Appellate Authority after considering the same confirmed the order of dismissal on the Applicant vide dated 08.06.2006.
9. The learned counsel on behalf of the Respondents has relied upon the following judgments:(
i) Ganesh Santaram Sirur Vs. State Bank of India and another [(2005)1 SCC 13],
(ii) B.C. Chaturvedi Vs. Union of India & Others [(1995)6 SCC 749,
(iii) Chairman and Managing Director, United Commercial Bank and others Vs. P.C. Kakkar [(2003) 4 SCC 364,
(iv) Govt. of India & Anr. Vs. George Philip [2007 AIR SCW 379],
(v) Principal Secretary, Govt. of A.P. And another Vs. M. Adinarayana [2004 AIR SCW 5593], 8 OA.186/2007
(vi) Damoh Panna Sagar Rural Regional Bank and another Vs. Munna Lal Jain [2005 AIR SCW 95],
(vii) Syed Rahimuddin Vs. Director General, CSIR and another [(2001)9 SCC 575],
(viii) State Bank of India and others Vs. Ramesh Dinkar Punde [2006 SCC (L&S) 1573].
10. The learned counsel on behalf of the Respondents further stressed that the Applicant was placed under suspension as serious charge of misconduct was alleged and the disciplinary proceedings were contemplated against him. He was charge-sheeted under Rules 14 of the CCS (CCA) Rules, 1965 and the two charges relating to demand and acceptance of money from candidates who had applied for the post of driver in B.A.R.C. and regarding participation in the election campaign of his wife who contested as a candidate in the Bombay Municipal Corporation Election held in February, 1997 were alleged against him. The charges imputed were inquired into by appointing an Inquiry Officer consequent upon the denial of charges by the Applicant vide order dated 16.05.2001. The Applicant was afforded adequate opportunity to defend the case. The Inquiry Officer submitted his report on 12.11.2003 holding the charges against the Applicant as proved, adduced before him in totality and came to the conclusion that the charges imputed against the 9 OA.186/2007 Applicant were established against him. The Disciplinary Authority after going through the entire records and Report of the Inquiry Officer passed order dismissing the Applicant from service. The Appellate Authority considered the appeal submitted by the Applicant and concluded that the Disciplinary Authority has followed the prescribed procedure in initiating action against the Applicant and the findings are warranted by the facts on record. The Appellate Authority did not find any valid reason for interfering with the orders of the Disciplinary Authority. The appeal preferred by the Applicant was, therefore, dismissed. The said orders were passed after due application and considering the relevant records and in view of this, therefore, the O.A. filed by the Applicant does not merit intervention of this Tribunal and is liable for dismissal.
11. We have gone through the pleadings filed by the learned counsel along with the documents enclosed and have extensively heard Shri S.P. Saxena, learned counsel on behalf of the Applicant and Shri N.K. Rajpurohit, learned counsel for the Respondents.
12. A perusal of the case papers reveals that the Applicant was charge-sheeted on two counts.
(i) On demanding and accepting money from certain candidates who had applied for the post of driver in Bhabha Atomic Research Centre (BARC)with promises of 10 OA.186/2007 giving employment in BARC as driver.
(ii) The Applicant had participated in the election campaign of his wife who contested in the Bombay Municipal Corporation held in February, 1997 under the banner of Samajwadi Party from Bhandup Ward No.210, Mumbai.
13. The Applicant was thereafter suspended and a charge-sheet containing the above two charges was issued to him vide dated 22.02.2001. Consequent upon the denial of the charges, an inquiry was ordered vide dated 16.05.2001. The Inquiry Officer completed the proceedings and submitted his report on 12.11.2003 holding the charge alleged against the Applicant as proved. However, the Disciplinary Authority observed that the Charged Officer/Defence Assistant did not cross examine the prosecution witnesses and did not submit names of the defence witnesses in spite of the opportunity extended to them due to which exparte proceedings were held. In view of this the Disciplinary Authority decided to remit back the case to the Inquiry Officer for further inquiry vide dated 17.12.2003. The Inquiry Officer thereafter submitted his report on 23.09.2004 again holding the charges imputed against the Applicant as proved.
14. On going through the case papers including the inquiry report, we find that at Exhibit A-5 is 11 OA.186/2007 the statement of the Applicant dated 13.09.2000, which runs into 8 pages which has been signed by him on each page. In this statement the Applicant at the end states that the statement has been willingly and voluntarily given by him and explained to him in the language he understands and that it is correctly recorded as stated by him and it is true to the best of his knowledge. Similarly, the statement dated 14.09.2000 also bears a similar declaration that this statement running into 9 pages has been read and explained to him in Hindi and it is willingly and voluntarily given by him. The same has been signed by the Applicant on each page. It is the confession statement signed by the Applicant in which he has admitted the charges levelled subsequently against him vide charge-sheet dated 22.02.2001 during the course of the inquiry. However, the Applicant has subsequently disputed the contents of the statement seven months thereafter vide his letter dated 09.04.2001, in which he has stated that the statement does not contain the text he had stated and hence he disowns both the statements. It is also stated by him that in view of this he denies the charges levelled and the case has been fabricated against him. It is seen that these statements had been given by the Applicant on 13th and 14th September, 2000 whereas the same had been denied on 09.04.2001 after 12 OA.186/2007 a gap of nearly seven months. Therefore, it is inconceivable that if as alleged by the Applicant this statement was taken under duress he should have immediately disputed the same which he did not do so. Therefore, he cannot take this shelter under this argument at this belated stage.
15. We have gone through the inquiry report and we do not find any infirmity either with the procedure followed or in the appreciation of the evidence recorded. It is also seen that the Disciplinary Authority had ordered the inquiry to be resumed after the same was closed to ensure that the Inquiry Officer gives sufficient opportunity to the Applicant to defend his case. It would, therefore, not be fair on the part of the Applicant at this stage to claim that proper opportunity was not given to him to establish his defence before the Inquiry Officer. Further, no malafide has been attributed nor any bias has been attributed. We are, therefore, not inclined to agree under the circumstances that a judicial review is warranted in this case on the ground that the departmental inquiry has been vitiated because of non-observance of principles of natural justice and denial of reasonable opportunity and that the findings are based on no evidence or the punishment is disproportionate to the proven misconduct. Further, there is no element of malice 13 OA.186/2007 or malafide involved either in issue of charge-sheet or while conducting the enquiry.
16. The Hon'ble Supreme Court in the case of R.P. Bhatt v. Union of India, [AIR 1986 SC 1040] has held as follows:
The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (i) whether the procedure laid down in the Rules has been complied with; and if not, whether such noncompliance has resulted in violation of any provisions of the Constitution or in failure of justice; (ii) whether the findings of the disciplinary authority are warranted by the evidence on record; and (iii) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. In this case since the requirement of Rule 27(2) were not complied with, the order passed by the Appellate Authority was set aside by the Hon'ble Supreme Court.
17. We have also gone through elaborately into the order passed by the Appellate Authority and have also examined the contentions raised by the Applicant raised in his appeal memo vide dated 13.12.2005. The issues raised in the said appeal memo have been consolidated by the Appellate Authority into four main issues which are as follows:
i) that the self-incriminating 14 OA.186/2007 statement allegedly given willingly and voluntarily can not be the basis for proceedings under rule 14 of the CCS (CCA) Rules;
ii) the statements were recorded and witnesses were called upon to sign the documents only after the recording was over. In such circumstances the complaint that the statements were recorded behind the back or by applying threat or coercion or offer of inducement remain unchallenged;
iii) the statement recorded was only preliminary investigation report;
iv) the statement had been recorded on the paper on which signature had been obtained in advance on the margin on each paper; A perusal of the appeal memo under Rule 23 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 as stated above corroborates that the appeal dated 13.12.2005 addressed to the Appellate Authority contains various grounds which had been correctly summed up under the four main contentions as contained in the Appellate Authority's order dated June 8, 2006 at para 4.1. It is further seen that the Appellate Authority has given cogent reasons in para 4.2 which shows due application of mind. He has also clearly established that the Disciplinary Authority's order has been passed in accordance with the provisions contained in Rule 27 (2) of the CCS(CCA) Rules. We are, therefore, satisfied that the Appellate Authority has passed a speaking order which broadly covers the provisions contained in Rules 27 of the CCS (CCA) Rules and no 15 OA.186/2007 infirmity is observed in the Appellate Authority's order dated June 8, 2006.
18. The Applicant has also alleged that he has sought from the Disciplinary Authority the following two documents which were denied to him. We have considered the arguments raised by the Applicant. We have, however, noted that the Applicant has not been able to establish as to what prejudice has been caused to him by denial of these two documents by the Disciplinary Authority. In the absence of establishing whether the said denial has caused any prejudice to him, this Applicant cannot claim any relief on this ground.
19. On a careful consideration of the case papers, we are of the considered view that in the present case the Applicant has been served with a charge-sheet containing two charges and both the charges have been established in the inquiry report against the Applicant. No infirmity has been observed in the conduct of disciplinary proceedings. Further, we do not find any infirmity with the orders passed by the Disciplinary Authority as well as Appellate Authority. The Appellate Authority in the present case has passed a reasoned order in accordance with the provisions contained in Rule 27 of the CCS (CCA) Rules.
20. On the issue of grant of personal hearing to 16 OA.186/2007 the charged employee by the Appellate Authority, Hon'ble Supreme Court in the case of Ganesh Santa Ram Sirur Vs. State Bank of India and another [(2005) 1 SCC 13] (supra) at para 29 has held as follows:-
.....Mr.Salve cited some decisions in order to show the current trend of cases on natural justice in disciplinary proceedings. He said that the appellate authority has considered the detailed representation and for the reasons recorded has reduced the penalty of dismissal to the removal. It is also his contention that the appellant has not challenged Rule 69(2) and Rule 69 (5). A reading of the above Rules shows that the appellate authority shall give a show-cause notice to the officer as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the officer and that this rule does not provide for a personal hearing or a personal interview. Mr.Salve is right in his above submissions. A reading of the show-cause notice and the final order passed by the appellate authority clearly goes to show that the appellate authority has thoroughly considered the detailed submissions made by the appellant and has reached its conclusion on the facts and circumstances of the case and has modified the proposed penalty of dismissal to that of penalty of removal. There is total application of mind on the part of the appellate authority in arriving at the conclusion in regard to punishment.
21. We have carefully considered the relevant provisions contained in Rule 27 of the CCS (CCA) Rules which does not provide for giving personal hearing to the Applicant.
22. In view of the above, therefore, we do not 17 OA.186/2007 find any merit in the present Original Application. The Original Application is, therefore, dismissed being bereft of any merit. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.