Central Administrative Tribunal - Ernakulam
E.I. Baby vs The Comptroller & Auditor General Of ... on 14 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 899 of 2009
Thursday, this the 14th day of July, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
E.I. Baby,
S/o. Issac Varghese,
Senior Auditor - SRA (HQ) I,
Office of the Principal Accountant
General (Audit), Thiruvananthapuram,
Residing at : Quarter No. 6, Type IV,
C.G.O. Complex, Poomkulam,
Vellayani P.O.,
Thiruvananthapuram : 695 522 ... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. The Comptroller & Auditor General of India,
Government of India, New Delhi.
2. The Principal Accountant General (Audit)
Kerala, Thiruvananthapuram.
3. The Deputy Accountant General (Admn.),
O/o. The Principal Accountant General (Audit)
Kerala, Thiruvananthapuram.
4. Shri S. Nagalsamy,
Principal Accountant General (Audit)
Kerala, Thiruvananthapuram.
5. Shri V. Ravindran,
Principal Accountant General (A&E)
Andhra Pradesh, Hyderabad. ... Respondents.
(By Advocate Mr. V.V. Asokan)
This application having been heard on 23.06.2011, the Tribunal on
14.07.11 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant, a Senior Auditor in the office of the Principal Accountant General (Audit), Kerala, Thiruvananthapuram, is aggrieved by the imposition of penalty of reduction of his pay to a lower stage by two stages for a period of 2 years with cumulative effect from 01.09.2008 and the imposition of 'Dies-non' from 19.12.2006 to 21.12.2006, on 17.04.2007 and 01.06.2007 vide Annexure A-1 order dated 28.08.2008 and by the Appellate Order dated 24.12.2008 confirming the same.
2. The applicant had participated in the dharna/demonstration held in the office premises from 19.12.2006 to 22.12.2006, on 12.01.2007, on 17.04.2007 and also on 01.06.2007. As the explanations submitted by him were not satisfactory, the Disciplinary Authority issued charge sheet vide Annexure A-10 memo dated 20.08.2007. On completion of the enquiry, the enquiry report was endorsed to the applicant by memo dated 01.07.2008. Thereafter, Annexure A-1 order imposing the above said penalty was issued.
3. The applicant submitted that the entire proceedings initiated against him in terms of Annexure A-10 charge memo are in complete violation of the statutory provisions contained in Article 14 of the CCS (CCA) Rules, 1965. There was no evidence at all laid on behalf of the Disciplinary Authority and no documents were placed in the manner known to law. Annexure A-1 order is ab-initio void and without jurisdiction as the charge memo was issued by an authority in the Junior Administrative Grade and the penalty was imposed by an authority higher in rank. There is absolutely no misconduct on the part of the applicant. The charges said to have been proved by the Disciplinary Authority and the Appellate Authority do not constitute a misconduct falling within the ambit of that term. There is no provision in the rules imposing a penalty of 'Dies-non' under the CCS (CCA) Rules. Annexure A-2 order is contrary to Rule 27 of the CCS (CCA) Rules. The penalty of reduction by one stage in Annexure A-1 order is incapable of being operated after the implementation of the recommendations of VI Central Pay Commission. The penalty imposed is highly disproportionate shocking the conscience of any one of ordinary prudence. It is also discriminatory as those who were working under the Accountant General (A&E), who were also alleged to have committed similar offences on the same days were proceeded against under Rule 16 of the CCS (CCA) Rules and imposed with a minor penalty.
4. The respondents in their reply statement submitted that none of the grounds raised by the applicant is legally sustainable. The impugned orders were issued after following the procedures prescribed in the CCS (CCA) Rules, 1965. The applicant had submitted an application for Earned Leave for the period 19.12.2006 to 21.12.2006 on urgent personal affairs. However, he came to the office and participated in the dharna/demonstration on these days. The participation of the applicant in the dharna/demonstration showed lack of devotion to duty violating the provision contained in clause (ii) of sub rule 1 of Rule 3 of the CCS (Conduct) Rules, 1964. Giving false reasons for applying for leave was unbecoming of a Government servant as per clause (iii) of sub Rule 1 of Rule 3 of the CCS (Conduct) Rules. His participation was also violative of the provisions contained in clause (ii) of Rule 7 of the CCS (Conduct) Rules. The disciplinary authority taking into consideration his contention that he remained in the Section upto 5.30 p.m on 12.01.2007, had dropped the charges contained in Article IV. However, his participation in the illegal activities after office hours was unbecoming of a Government servant violating the clause (iii) of sub rule 1 of Rule of CCS (Conduct) Rules. The competent authority had sanctioned him casual leave on the forenoon of 17.04.2007 on the ground of urgent private affairs. However, he came to the office and participated in the dharna/demonstration held on 17.04.2007. A warning was issued vide Annexure A-9 memo dated 12.07.2007 in connection with the demonstration held on 01.06.2007, not to indulge in such activities in future. Issue of warning is only an administrative action and it does not prevent the Disciplinary Authority from taking disciplinary action under the relevant provisions of the CCS (CCA) Rules. The functions of the Senior Deputy Accountant General (Admn.) and the Deputy Accountant General (Admn.) are the same. At the time of issue of charge memo, the Senior Deputy Accountant General was holding the charge of Administration. However, on his transfer, Deputy Accountant General was posted in his place. The orders Annexure A-1 and A-10 are issued by the competent authority in respect of the applicant. It was further submitted that the Disciplinary Authority is competent to impose 'Dies-non' under the provisions of the Fundamental Rule 17. The applicant has not brought any material evidence to disprove the charges framed against him. The appeal submitted by the applicant was considered by the Appellate Authority as per provisions of Rule 27 of the CCS (CCA) Rules, 1965. As regards Annexure A-1 order, there is no need for revision and the applicant had not brought any complaint on this since the date of implementation of the pay revision orders according to the recommendations of the VI CPC. The reduction of increment in the scale of pay with cumulative effect is the lowest penalty included in the major penalties. Hence the contention of the applicant that the penalty imposed upon him is highly disproportionate, is not tenable. The enquiry conducted or not conducted in the office of the Accountant General (A&E), Kerala, cannot be equated with the case of the applicant. The applicant had participated in the dharna/demonstration from 19.12.2006 to 21.12.2006, 12.01.2007, 17.04.2007 and on 01.06.2007 for reasons which are not directly applicable to the office of the applicant. In the above circumstances, the O.A. should be dismissed.
5. In the rejoinder, the applicant submitted that there was no official report on desertion of duty or failure to discharge duties properly as also of any strike as defined in Rule 7(ii) of CCS (Conduct) Rules. No evidence was furnished to show that the applicant did not utilise the leave for the purpose for which it was granted. The disciplinary proceedings were ended in warning as far as articles of charge X to XII are concerned. In State of Uttaranchal and Others vs. V. Kharak Singh, (2008) INSC 1366 (13 August 2008), the Hon'ble Supreme Court had observed the "domestic enquiries must be conducted honestly and bonafide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities." Once the disciplinary proceedings are initiated by a higher authority it cannot be dealt with by a lower authority for whatever reason. In the instant case, the original Disciplinary Authority is the Senior Deputy Accountant Accountant General who is the rank of the Director (Audit) whereas the authority who imposed the penalty is only the rank of the Deputy Director (Audit). The dies-non was imposed on those days on which the applicant discharged his duties or was on sanctioned leave. The argument that the onus is on the defending employee to prove his innocence is against the statute and the law of land. As per the CCS (CCA) Rules, the penalty shall be imposed only on the basis of findings arrived at evaluating the evidences adduced during the enquiry and shall be commensurate to the misconduct. In view of the above, the O.A should be allowed as prayed for.
6. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. V.V. Asokan, learned counsel for the respondents and perused the material on record.
7. Articles of charges X to XII pertain to the participation in the demonstration in front of the chamber of the Principal Accountant's General held on 01.06.2007 for which he has already been issued a warning memo. The finding of the Enquiry Officer is that these charges already stand settled and fresh articles of charge as per Articles X to XII are not warranted. The stand of the Disciplinary Authority that the issue of warning did not prevent him from taking disciplinary action subsequently was not endorsed by the Appellate Authority stating that the charged official should not be punished twice for the same charges. We hold that the conclusion of the Appellate Authority not to punish the charged official twice for the same charges is in order and treat the Articles of charges X to XII as dropped.
8. As regards the Articles of charges I to III, they pertain to the participation in certain form of protests from 19.12.06 to 22.12.06, the finding of the Enquiry Officer is that there is no evidence to prove the same. The applicant was on Earned Leave from 19.12.06 to 21.12.06 on the ground of urgent personal affairs. On 22.12.06, he was present in the Section. There is no evidence to the contrary. However, the Enquiry Officer held as proved that at least for sometime on these days from 19.12.06 to 21.12.06, the charged official participated in the demonstration as admitted by him. However, the Disciplinary Authority held that the admission of the charged official that he had attended the demonstration during the period from 19.12.06 to 21.12.06 for a few minutes proved of his participation in the demonstrations held on those days after availing Earned Leave for 3 days. The stand of the Disciplinary Authority was endorsed by the Appellate Authority. But the charges against the applicant that he participated in the demonstrations from 19.12.06 to 22.12.06, that he shouted slogans and gave false reasons for availing of Earned Leave are not proved by the admission of the applicant. His admission that he was very much present in the Section on 22.12.06 proved that he did not participate in the demonstration on that day. The admission of his participation in the demonstration on these three days for a few minutes does not prove that he submitted false reasons for availing Earned Leave; he could have attended the demonstration after meeting the purpose for which he availed of leave. So also, a few minutes participation cannot be equated with full participation in the day long dharna. In a departmental enquiry, charges should be clear and precise so as to provide the charged officer an opportunity to defend himself effectively in the interest of natural justice. As rightly held by the Enquiry officer, there is no evidence to prove the charges I to III. Further, participation in a demonstration is not a misconduct as explained hereinafter in this order. Therefore, we hold that the conclusion of the Dispilinary Authority which is confirmed by the Appellate Authority that the charges I to III as proved is not legally sustainable.
9. As regards the Articles of charges IV to VI pertaining to incidence on 12.01.07, the Enquiry officer held that they are not proved conclusively. What is proved is that the applicant was removed form the office premises by the police at 6.15 p.m. It was not disproved that he was not present in the office till 5.30 p.m. The Disciplinary Authority also held that there is no evidence for his participation in the demonstration held on 12.01.2007 before 05.30 p.m. It is further held that demonstration in the office premises even after officer hours attracts provisions contained in clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964. The same was endorsed by the Appellate Authority. Clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964, reads as under:
"7. Demonstration ad Strikes:
No Government servant shall -
(i) xxxxxxxx xxxxxxx
(ii) resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service of any other Government servant".
What is prohibited in the above clause is strike. As per New Oxford Advanced Learner's Dictionary, 'Demonstration' means a public meeting or march at which people show that they are protesting against or supporting somebody or something whereas 'Strike' means to refuse to work as a protest. Strike is cessation of work. What is prohibited in clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964 is cessation of work, not demonstration. What constitutes a 'strike' under Conduct Rules is explained in Government of India, MHA O.M. No. 25/23/66-Ests.(A) dated 09.12.1966 as under :
"(2) Interpretation of what constitutes a "strike" under the Conduct Rules - Rule 7 (ii) of the Central Civil Services (Conduct) Rules, 1964, provides that no Government servant shall resort to or in any way abet any form of strike in connection with any matter pertaining to his service or the service of any other Government servant. Instances have come to the notice of Government where employees resort to various methods of protests for redress of grievances, some of which are tantamount to strike. References have been received seeking clarification whether certain acts are covered under the definition of 'strike' and if so, whether action can be taken against such employees for violation of the Conduct Rules.
It is, therefore, clarified that 'strike' means refusal to work or stoppage or slowing down of work by a group of employees acting in combination and includes -
(i) mass abstention from work without permission (which is wrongly described as "mass casual leave");
(ii) refusal to work overtime where such overtime work is necessary in the public interest;
(iii) resort to practices or conduct which is likely to result in or results in the cessation or substantial retardation of work in any organization. Such practices would include, what are called, 'go-
slow', 'sit-down', 'pen-down', 'stay-in', 'token', 'sympathetic' or any other similar strike; as also absence from work for participation in a Bandh or any similar movements.
Government servants who resort to action of the above kind violate Rule 7 (ii) of the Central Civil Services (Conduct) Rules, 1964, and disciplinary action can be taken against them. It may be noted that the list of activities which are covered under the definition of strike as enumerated above is only illustrative and not exhaustive. It only clarifies the position in respect of practices which are often resorted to at present."
Mere participation in a demonstration is not a misconduct which falls within the purview of clause (ii) of Rule 7 of the CCS (Conduct) Rules, 1964. Therefore, we hold that the finding of the Disciplinary Authority and confirmation of the Appellate Authority that the applicant had breached clause
(ii) of Rules 7 of the CCS (Conduct) Rules, 1964 in participating in a demonstration after office hours in the office premises, is not legally tenable. The removal of the applicant by the police from the office premises by itself does not constitute a misconduct under the CCS (Conduct) Rules.
10. Articles of charges VII to IX pertain to demonstration/dharna held on 17.04.2007 at 10.40 a.m. in the office premises. The applicant was charged with desertion of his work place and that he gave false reasons for availing of half a day's casual leave in the forenoon of 17.04.2007 for participation in the demonstration, disobeying the instruction of the Administration issued in circular dated 16.04.2007. The Enquiry Officer held that the charges as proved on the basis of the admission by the applicant that he had participated in the dharna/demonstration held on 17.04.07 by taking eligible leave as per his letter date 09.05.2007. The Disciplinary Authority has concluded that he had acted in a manner unbecoming of a Government servant, violating clause
(ii) of sub rule 1 of Rule 3 of CCS (Conduct) Rules, 1964, which states that every Government servant shall at all times do nothing which is unbecoming of a Government servant. The Appellate Authority also has accepted the same. While participation in a demonstration may not attract provisions of the CCS (Conduct) Rules as already discussed, taking leave by giving false reason is certainly unbecoming of a Government servant.
11. Out of twelve charges, only one charge is proved against the applicant. For the above misconduct, imposition of major penalty even if it is in the lowest rung of major penalties enunciated under Rule 11 of the CCS (CCA) Rules, in our view, is shockingly disproportionate to the gravity of misconduct. The Appellate Authority had dropped the charges X to XII, yet that did not lead to any reduction in the penalty imposed on the applicant by the Disciplinary Authority. Those who were working under the Accountant General (A&E) were punished for the same offences as charged against the applicant, with a minor penalty only. The Disciplinary Authority had imposed 'Dies-non' on the the applicant on the day he was on sanctioned leave also. 'Dies-non', not being a penalty listed in CCS (CCA) Rules, 1965, should not have found a place in the Annexure A-1 order.
12. In the instant case, the charge sheet is issued by the Senior Dy. Accountant General (Admn.) and the order of punishment by the Deputy Accountant General (Admn.). We do not find any violation of the instruction of the Government of India that final orders are to be passed by the 'higher disciplinary authority' who instituted the enquiry as the Senior Deputy Accountant General was transferred out and the Deputy Accountant General was in position as competent authority to impose penalty.
13. In the light of the discussion above, the case against the applicant is liable to be remanded to the Appellate Authority to reconsider the punishment imposed on him. Accordingly, we hereby quash and set aside the Annexure A-2 order dated 24.12.2008 and remand the case to the Appellate Authority, the second respondent, for reconsideration of the penalty imposed on the applicant within a period of three months from the date of receipt of a copy of this order.
14. The O.A. is allowed as above with no order as to costs.
(Dated, the 14th July, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.