Central Administrative Tribunal - Delhi
K. P. Singh S/O Devi Sahai vs Union Of India Through on 27 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1381 of 2010 This the 27th day of April, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) K. P. Singh S/o Devi Sahai, R/o 85, Amarpali Society, I.P. Extension, Delhi-110092. Applicant ( By Shri L. R. Khatana, Advocate ) Versus 1. Union of India through Secretary to Government of India, Department of Commerce, Ministry of commerce & Industry, Udyog Bhawan, New Delhi. 2. Commissioner of Departmental Inquiries & Inquiring Authority (Shri Samir Sahai), Central Vigilance Commission, Satarkata Bhawan, GPO complex, Block A, INA, New Delhi-110023. 3. Central Vigilance Commission through Chief Vigilance Commissioner, Satarkata Bhawan, GPO Complex, Block A, INA, New Delhi-110023. 4. Union Public Service Commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110003. Respondents ( By Shri R. N. Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
K. P. Singh, the applicant herein, presently holding the post of Deputy Director General of Foreign Trade in the Directorate General of Foreign Trade, claims to have an excellent and unblemished record of service spanned over a period of thirty years. His grievance in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, is of proceeding against him departmentally, as urged, on totally frivolous charges, which, during the course of arguments, could, at the most, even if accepted to the extent the same stood proved against him, would be as regards performing duties not as diligently as others, but would not, in any case, tantamount to delinquency punishable under the relevant rules. In wake of the facts and circumstances hereinafter to be given, the prayer of the applicant is to set aside order dated 30.9.2009 whereby he has been visited with the penalty of reduction of pay by two stages for a period of one year without cumulative effect. In the context of the limited controversy as stated above, we may give only such facts as may be relevant.
2. The applicant is a member of the Indian Trade Service, a Group A Central Service. He started his career as Licensing Assistant in the year 1979, and came to be inducted in June, 1997 into the Indian Trade Service on promotion as Assistant Director General of Foreign Trade, and then as Deputy Director General of Foreign Trade on 5.12.2000. During August, 2001 to April, 2001, the applicant was posted as Deputy Director General of Foreign Trade in the office of Joint Director General of Foreign Trade, Moradabad (UP). In March, 203 a few advance licences were issued based on export performance of over Rupees one crore to certain exporters, namely, H.A. Exports, United Handicrafts, Urban Exports and Creation Crafts, all situated in Moradabad and coming under the jurisdiction of the office of Joint Director General of Foreign Trade, Moradabad. On 17.4.2003, then Joint Director General of Foreign Trade, Moradabad (UP) issued instructions that a team consisting of the applicant, Foreign Trade Development Officer (FTDO) and Dealing Hand should carry out physical inspection of the aforesaid units and submit a report as expected by the Headquarters (Directorate General of Foreign Trade) guidelines. Subsequently, then Joint DGFT also included the officials of Central Excise Commissionerate and State Directorate of Industries in the team. Pursuant to the instructions aforesaid, the four firms mentioned above, were inspected by a team consisting the applicant; Shri Rajesh Rajbhatt (FTDO); S/Shri Sant Lal and D. R. Yadav (Dealing Hand) all from the office of the Joint DGFT, Moradabad; Shri Rakesh Chaturvedi, superintendent, Central Excise Commissionerate, Moradabad; and S/Shri S. C. Shukla and S. P. Singh from the District Industries Centre, State Government of U.P. On 30.4.2003, based on the physical inspection of the firms, members of the inspection team submitted their report to the Joint DGFT, Moradabad. On 6.5.2003, then Joint DGFT, Moradabad, recorded the following observations while accepting the aforesaid inspection report:
I have seen the inspection report submitted by the Joint Team consisted of this office, DIC and Central Excise and observed that units are working and in existence. However, the record is silent about the production capacity etc. Considering the past export performance, it is inferred that they must have the production capacity etc. This is however, required to be monitored closely. It is the case of the applicant that more than three years of submission of the inspection report aforesaid and acceptance thereof by the Joint DGFT, he received a memorandum dated 17.10.2006, whereby chargesheet was issued to him initiating disciplinary proceedings against him under rule 14 of the CCS (CCA) Rules, 1965 (hereinafter to be referred as the Rules of 1965). The six charges on which the applicant was to be departmentally tried read as follows:
That Shri K.P. Singh, the then Dy. DGFT, Moradabad, during the period 2002-03 had failed to maintain absolute integrity, devotion to duty and had acted in a manner unbecoming of a Government servant and had failed to protect the interests of the department and thus committed gross misconduct in as much as:
ARTICLE-I That Shri K.P. Singh had recommended the issuance of an Advance Licence to M/s H.A. Exports, Moradabad despite prior knowledge that the firm may not be existing at the given address as correspondence made with it had been returned undelivered with the following remarks of the postal authorities left without address, return to sender.
ARTICLE-II Shri K.P. Singh alongwith other officials had conducted an inspection of M/s H.A. Exports and had jointly submitted a perfunctory verification report falsely stating the existence of the firm which resulted in erroneous issuance of a high value licence in favour of the firm.
ARTICLE-III That Shri K.P. Singh processed a request for the issuance of an Advance Licence to M/s United Handicrafts, Moradabad despite his specific knowledge that the firm had failed to fulfill its export obligations against another licence and might not be existing at the given address.
ARTICLE-IV Shri K.P. Singh alongwith other officials had also conducted an inspection of M/s United Handicrafts and had submitted a perfunctory verification report falsely stating the existence of the firm.
ARTICLE-V That Shri K.P. Singh, Dy. DGFT had processed a request for the issuance of licence No.2910004338 dated 31.3.2003 for a cost insurance freight (cif) value of Rs.1 crore to M/s Creation Crafts, Moradabad ignoring the instructions issued by DGFT vide OM NO.01/94/18/Mon/1997/ AM03/PCIV dated 12.7.2002 which requires obtaining the prior approval of the Headquarters in cases where the export proceeds had not been fully realized on the date of receipt of application of the party or on the date of issuance of the Advance Licence to the party.
ARTICLE-VI Shri K.P. Singh alongwith other officials had also conducted an inspection of M/s Creation Crafts and had submitted a perfunctory verification report falsely stating the existence of the firm.
By the aforesaid acts of omission and commission by Shri K.P. Singh, the then Dy. DGFT, Moradabad, has contravened Rule 3 (1) (i), (ii) & (iii) of the CCS (Conduct) Rules 1964. It is the case of the applicant that during the course of inquiry proceedings, clarifications regarding non-existence of any guidelines or procedure or parameters etc. for carrying out ECA inspection were proved on record. In that regard, true copy of the I.D. note dated 6.9.2005 has been placed on records as Annexure A-9. The inquiry officer vide his report dated 4.1.2008 held articles of charge I and V as not proved and articles of charge II, III, IV and VI as partly proved. On 2.4.2008, Central Vigilance Commission (CVC) tendered its advice to the disciplinary authority advising imposition of a suitable major penalty on the applicant. On 22.4.2008, the 1st respondent communicated to the applicant a copy of the report of the inquiring authority along with its note of tentative disagreement, whereby the disciplinary authority held the article of charge II as fully proved and all other articles of charge as partly proved. The applicant submitted his representation against the findings of the inquiry officer and the note of disagreement recorded by the disciplinary authority. Brushing aside the representation of the applicant, it is the case of the applicant, without application of mind the disciplinary authority sought the advice of Union Public Service Commission (UPSC) on its finds on each article of charge framed against the applicant. On 20.8.2009, UPSC tendered its advice to the disciplinary authority, holding articles of charge I, III and V as not proved and articles of charge II, IV and VI as proved only to the extent of conducting inspection in a manner which was not in the spirit in which it was required to be conducted and submission of a perfunctory report, which did not meet the objectives of the inspection. UPSC, in the light of its findings, suggested imposition of a penalty of reduction of pay by two stages for a period of one year without cumulative effect on the applicant with the direction that he would not earn increments of pay during the period of reduction. The findings/conclusions of the inquiry officer, disciplinary authority and those of UPSC on different articles of charge are summarized below:
Article of Charge Findings of Inquiring Authority Findings of the Disciplinary Authority Findings of the UPSC Art.-I Not Proved Partly Proved Not proved Art.-II Partly Proved Fully Proved Partly proved only to the extent of conducting of inspection in a manner which was not in the spirit in which it was required to be conducted and submission of a perfunctory report which did not meet the objectives of the inspection.
Art.-III Partly Proved Partly Proved Not Proved Art.-IV Partly Proved Partly Proved Partly proved to the extent of conducting of inspection in a manner which was not in the spirit in which it was required to be conducted and submission of a perfunctory report which did not meet the objectives of the inspection.
Art.-V Not Proved Partly Proved Not Proved Art.-VI Partly Proved Partly Proved Partly proved to the extent of conducting of inspection in a manner which was not in the spirit in which it was required to be conducted and submission of a perfunctory report which did not meet the objectives of the inspection.
The disciplinary authority accepted and followed the advice of UPSC and imposed the penalty upon the applicant as mentioned above.
3. The disciplinary authority in the impugned order dated 30.9.2009, after giving the background of the case, has mentioned in para 9 that UPSC after going through the case records and the observations of the disciplinary authority, had given its findings. The findings of UPSC have been mentioned in details in paras 9.1 to 9.6. In para 10 it is mentioned that UPSC, in the light of its findings, had advised vide letter dated 20.8.2009 that the ends of justice would be met if the penalty of reduction of pay by two stages for a period of two years without cumulative effect was imposed upon the applicant. The advice of UPSC has been accepted. UPSC has given detailed reasons for its findings with regard to various articles of charge framed against the applicant, and as may appear from the table reproduced above, it held articles of charge I, III and V as not proved, whereas rest of the charges have been held as partly proved. We may refer to some material and pertinent findings as regards charges which stood partly proved. As regards article of charge II, the UPSC mentioned that it cannot be accepted that the report falsely stated the existence of the firm since the remarks of the Supdt., Central Excise endorsed on the same report on the same date clearly state that he had also visited the unit along with the team and found them existing and working. The article of charge is, therefore, proved only to the extent of submission of a perfunctory report which did not meet the objectives of the inspection, but to say that it resulted in issuance of a higher value licence in favour of the firm is not acceptable in view of the evidence in Article I of the Charge that the advance licence had been issued well before the inspection was carried out. This article of charge is, therefore, partly proved. In article of charge IV, the following observations have been made:
The finding of the IO is that this Article of Charge has been found partly proved only to the extent that the CO as a member of the ECA team had not conducted the inspection in the spirit in which it was required to be carried out. However, IO has also observed that the prosecution did not produce evidence to show that the firm was not existing at the place shown in the joint inspection report and that the prosecution has also failed to produce any evidence to establish the allegation relating to loss to the tune of Rs.30.80 lacs to the Government. It is also true that the charge of falsely stating the existence of the firm has not been borne out for the same reasons as recorded in Commissions findings on Article of Charge II. Accordingly, the Article of Charge is found proved only to the extent of submission of a perfunctory report by CO along with other officials after conducting an inspection of M/s United Handicrafts. The charge, is thus, partly proved. In article of charge VI the observations made by UPSC are as follows:
The IO has found that only the allegation relating to conduct of inspection not being in the spirit in which it was required to be carried out has been found as proved the rest of the allegations in this Article of Charge have been found as not proved UPSC agrees with the IO and the Disciplinary Authority for the same reasons as recorded in their findings in respect of Articles II and V, that this Article of Charge is partly proved and only to the extent that conduct of inspection by CO (along with others) was not done in the spirit in which it was required to have been done.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. There are some salient features of the case which, it appears, have not been taken into consideration by any of the authorities. Admittedly, it is a case of joint inspection carried out by number of persons mentioned above, which were not only from the department of the applicant, but from the Excise Commissionerate, Moradabad and District Industries Centre, State Government of UP as well. The report that ultimately came into being was on the basis of opinion of every one who carried the inspection. Normally, the finding of mala fides, when the report may be an outcome of collective efforts put in by all members of the team, cannot be returned. However, the aspect that it was a case of joint inspection and the report which was an outcome of every one in the team, needed consideration. Secondly, no body has looked into the stark fact that the report was accepted by the Joint DGFT, Moradabad, who would not adversely comment upon the report in any manner whatsoever, least the same being perfunctory. Thirdly, once the allegations on the basis of which the report was said not to be correct, had been disproved, simply stating that the report was perfunctory, would not be enough. Unless the reasons are stated as to why the report would be perfunctory, such a finding, in our view, could not have been recorded at all. What, however, clinches the issue is that assuming that the report has not given some details, of course unknown, as nothing in that regard has been mentioned, and yet the same is stated to be perfunctory, it could, at the most, touch upon efficiency of the applicant; it would not be a case of delinquency. In a situation as the one in hand, whereas it may have been possible for the concerned authority to make remarks in the ACR of the applicant as regards his performance, no occasion would arise at all to deal with the applicant departmentally.
5. We had an occasion to deal with a situation where the employee was departmentally tried for such acts or conducts which touched only upon his efficiency, in G. P. Sewalia v Union of India & another [2009 (2) AISLJ (CAT) 360, OA No.2210 of 2006 decided on 27.8.2008]. We may reproduce the relevant part of the judgment, both as regards facts of the case and our observations on the issue. The same reads, thus:
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may evaluate, comment upon and determine the issues involved in the case in the light of submissions made by the learned counsel representing the parties, it would be appropriate to refer to rule 3 of the All India Services (Conduct) Rules, 1968. The same reads as follows:
3. General (1) Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service. It would be interesting to note that even though in the article of charge accompanying memorandum dated 23.8.1999 it has been mentioned that the applicant committed gross misconduct, failed to maintain devotion to duty and acted prejudicially to the interest of DSCFDCL with an ulterior motive, the finding that came to be ultimately recorded by the disciplinary authority was only that he had exceeded his delegated power of making deposits for periods less than a year, and further that he did not carry the offer made by SBI to its logical conclusion by exhaustively examining the same on merits after seeking clarification from SBI, as was necessary, and, therefore, ignored the higher rate of interest offered by SBI. The disciplinary authority in its order dated 22.8.2006 after giving backdrop of the case, concluded as follows:
12. AND WHEREAS the President, after going through the case record, findings of the Inquiring Authority, the representation of the said Sh.G.P.sewalia, the advice of Central Vigilance Commission and Union Public Service Commission and all other relevant factors, material to the case observed that the investment for a period of one year and above, in terms of guidelines issued by the Reserve Bank of India, was termed as a medium/long term investment. The investment of the Delhi Scheduled Castes Financial and Development Corporation Ltd.s funds to the tune of Rs.16.25 crores in the Portfolio Management Scheme of Syndicate Bank for a period of one year, which was as per the Reserve Bank of Indias guidelines termed as a medium/long term investment, was outside the delegated powers of the Chairman and the Managing Director of the Corporation, who was empowered to make short term deposits only. Sh.G.P.Sewalia thus clearly exceeded his delegated powers. Further the offer made by Syndicate Bank of a yield of 16.25% per annum was only an indicative rate, subject to speculative vagaries of the capital market. The final return of the investment was at the rate of 14% PER ANNUM ONLY. THE State Bank of India, on the other hand, offered a 16% per annum, which would have yielded 18.5% simple rate of interest. The Charged Officer, however, did not carry the offer made by the State Bank of India to its logical conclusion by exhaustively examining the same on merits after seeking such clarification from State Bank of India, as were necessary. Sh.G.P.Sewalia, therefore, ignored the higher rate of interest offered by State Bank of India which could have been beneficial. However, since Sh. Sewalia ordered the investment to be made in the public sector bank, no ulterior motive could be attributed to his said action. In view of the finding as recorded above, the applicant, as mentioned above, was visited with the penalty of reduction of pay by three stages for a period of one year without cumulative effect. It is pertinent to note that no finding of misconduct, failing to maintain absolute devotion to duty with ulterior motive, as was the charge, has been returned by the enquiry officer. The disciplinary authority has not observed that the allegations that stood proved against the applicant would be misconduct or failing to maintain absolute devotion to duty. Assuming that the said finding has to be read or presumed simply on proof of the allegation subject matter of charge, the pertinent question that would arise is as to whether the said allegation would constitute misconduct or failing to maintain absolute devotion to duty. There cannot be any exhaustive definition of misconduct. However, the same as defined in Blacks Law Dictionary, Sixth Edition at page 999 would mean, thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as:
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. In P. Ramanatha Aiyars Law Lexicon, 3rd edition, at page 3027, the term misconduct has been defined as under:
The term misconduct implies, a wrongful intention, and not involving error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct.
8. Having given our anxious thoughts, we have come to a firm conclusion that there is distinction between misconduct and not performing the duties as efficiently as another person similarly situate may be able to perform. Misconduct has to have some element of delinquency, may be, even gross negligence. It is only when the allegations subject matter of charge may tantamount to misconduct that a person can be proceeded for inflicting any of the punishments prescribed in the rules. Non-performance of duties, which may have no element of unlawful behaviour, wilful in character, improper or wrong behaviour, misdemeanor, misdeed, impropriety or a forbidden act, may some time amount to not carrying out the duties efficiently, but the same cannot be construed to be misconduct. If decisions that may ultimately prove to be less beneficial to an organisation for which a person is working are to be termed as misconduct liable for punishment under rules, no person discharging his duties would be able to take any major decision. The administrative work, if may not come to a grinding halt, would, in any case, slow down so much that it may cause more harm and loss to the concerned institution. From our experience from several hundred cases that we have dealt, we find that a negative and indecisive attitude is developing amongst the government officers, primarily for the reason that any decision taken which may be even in good faith, or favourably interpreting rules benefiting even a deserving government employee, may not become subject matter of disciplinary action against them. Surely, if government servants are to be tried departmentally for bona fide actions taken by them in discharge of their official duties, which may have absolutely no undertones or overtones of delinquency, the situation as prevails today is bound to aggravate.
9. In the context of our observations as made above, the question that arises for determination is as to whether assuming that the applicant as CMD of DSCFDCL invested money on fluctuating rate of interest instead of fixed rate, by which the yield ultimately became lesser, and further that he deposited the amount for a year and not less than a year, did he commit any misconduct? In our considered view, even if both the allegations, as mentioned above, were to be held proved, it was not a case of misconduct at all. At the most it would be a case of some inefficiency, for which there are adequate measures to be adopted. Such acts that the applicant is said to have committed may, in other words, at the most, result into recording of some remarks as may be deemed appropriate in his ACRs, but the same, in any case, cannot be made subject matter of an enquiry and punishment major or minor. The approach of the respondents appears to be vitiated in wrongly thinking and concluding that by depositing the amount for a year and for fluctuating rate of interest the applicant indulged in misconduct. The explanation furnished by the applicant apart, we are of the considered view that the applicant for alleged acts done by him, ought not to have been proceeded departmentally.
10. The Honble Supreme Court in Union of India & Others v J.Ahmed [(1979) 2 SCC 286] held that deficiencies in personal character or personal ability would not constitute misconduct for taking disciplinary proceedings. It was further held that negligence in performance of duty or inefficiency in discharge of duty are not acts of commission or omission under rule 4 of the Discipline and Appeal Rules. The facts of the case aforesaid reveal that the respondent, an IAS officer, was posted as Deputy Commissioner and District Magistrate in Nowgong District, Assam, when in June 1960 there were large scale disturbances leading to considerable damage to property. He was suspended after preliminary enquiry and the following charges came to be framed against him:
(i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed;
(ii) Showed complete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and coordinate co-operations with the police to restore Law and Order;
(iii) Did not personally visit the scenes of disturbances within the town or in the Rural areas, in time to take personal control of the situation and to exercise necessary supervision;
(iv) Did not keep Government informed of the actual picture and extent of the disturbances;
(v) Showed complete inaptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete break down of Law and Order in Nowgong town as well as the rural areas of Nowgong District.
Thus you proved yourself completely unfit to hold any responsible position. While commenting upon the charges as framed against the respondent, it was observed that the same related to his efficiency as an officer, and besides negligence the charges referred to lack of qualities of leadership, foresight, firmness and indecisiveness, but competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge functions attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under rules. It is relevant to mention that the Honble Supreme Court was dealing with rule 4 of the Discipline and Appeal Rules which were to be understood in the context of All India Services (Conduct) Rules, 1954. Rule 3 of the Rules of 1954 required maintenance of, at all times, absolute integrity and devotion to duty. It was held that lack of integrity, if proved, would undoubtedly entail penalty, and failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute as failure to maintain devotion to duty, and that the expression devotion to duty, had been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. An act or omission which runs counter to the expected code of conduct was also held to constitute misconduct. In a recent decision in the matter of Inspector Prem Chand v Government of NCT of Delhi & Others [(2007) 4 SCC 566], after discussing the case law it has been held that error of judgment or negligence simpliciter would not be misconduct.
6. We are in agreement with the contention raised by Shri Khatana, learned counsel representing the applicant that the charges, even if proved against the applicant, would not amount to any delinquency; it may be, at the most, a case of inefficiency.
7. For the reasons mentioned above, while allowing this Original Application, we set aside the impugned order dated 30.9.2009. In consequence of setting aside the order aforesaid, the applicant will be entitled to all consequential benefits, as may be permissible under the rules. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/