Central Administrative Tribunal - Delhi
G-3 vs Union Of India Through on 29 June, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.502/2013 ORDER RESERVED ON: 12.05.2015 ORDER PRONOUNCED ON:29.06.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Tushar Ranjan Mohanty, S/o Shri Rabi Narain Mohanty, An SAG officer of the Indian Statistical Service, Deputy Director General, Research and Publication Wing, Coordination and Publication Division, Central Statistics Office, Ministry of Statistics and Programme Implementation, Wing No. 6, West Block No. 8, R.K. Puram, New Delhi-110066. Now residing at: G-31, HUDCO Place Extension, New Delhi-110049. Applicant. (Applicant in person) Versus 1. Union of India through The Chief Statistician of India and Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001. 2. Shri Arvind Kumar Joint Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001. 3. Shri T.S. Jawahar Director, ISS Section, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001. 4. Shri D.K. Sharma Under Secretary (ISS & Vigilance) Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001. Respondents (By Advocate Shri R.N. Singh) O R D E R
Shri G. George Paracken:
The applicant has filed this Original Application challenging the impugned charge sheet dated 10.06.2012 issued by the Respondent No.1. to him vide Memorandum No.11018/4/2012-ISS dated 10.09.2012 proposing to take action against him under Rule 16 of the CCS (CCA) Rules, 1965. The statement of imputations of misconduct or misbehaviour on which action was proposed to be taken action against him is as under:
ARTICLE 1 As per the record of proceedings of Honble CAT, Principal Bench, New Delhi dated 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. Union of India, Shri T.R. Mohanty, DDG of Indian Statistical Service appeared in person on behalf of the applicant in the above cases i.e. Shri E. Nagachandran, Deputy Director.
The appearance of Shri T.R. Mohanty, DDG, in CAT, Principal Bench, New Delhi on 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. Union of India on behalf of the applicant in the above cases and against the Union of India is a conduct prejudicial to the interest of Union of India. Therefore, Shri T.R. Mohanty, DDG has indulged in an activity which is unbecoming of a government servant and thus he has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE II As per the record of proceedings of Honble CAT, Principal Bench, New Delhi dated 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. Union of India, Shri T.R. Mohanty, DDG of Indian Statistical Service appeared in person on behalf of the applicant i.e. Shri E. Nagachandran, Deputy Director in cases against Union of India without seeking any kind of leave or permission from his Controlling Officer to absent himself from office.
Shri T.R. Mohanty, DDG, appeared in CAT, Principal Bench, New Delhi on 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. Union of India on behalf of the applicant in the above cases by deserting his post during office hour and remaining absent from his office to attend the court cases on behalf of applicant and against the Union of India.
This act of deserting his post and absenting himself from office unauthorizedly by Shri T.R. Mohanty, DDG on 11th April, 2012, is a conduct unbecoming of a government servant and thus he has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
2. The following documents referred to in the aforesaid Memorandum has also been furnished to the Applicant along with the aforesaid statement of imputation of misconduct or misbehaviour:-
(i) Record of proceeding dated 11th April 2012 of Honble CAT, Principal Bench, New Delhi in MA No. 1527/2011 & MA No. 2404/2011 in OA No. 1488/2010.
(ii) Note dated 02.05.2010 of ADG (CAP), CSO, MOSP1 and Controlling Officer of Shri T.R. Mohanty, DDG regarding non-permission by Shri T.R. Mohanty, DDG to absent himself from duty to attend the CAT on 11th April, 2012.
3. The brief facts of the case are that, vide letter No.11024/4(11)2011-ISS dated 02.05.2012, Respondent No.4 Shri D.K. Sharma, Under Secretary in the Respondent No.1-Ministry of Statistics and Programme Implementation asked the Applicant to clarify as to why he appeared in MA No.1527/2011 and 2404/2011 in OA No.1488/2010 - Shri E. Nagachandran, STS of ISS Vs. Union of India listed before the Principal Bench of the Central Administrative Tribunal for hearing on 11.04.2012 and sought adjournment on behalf of the said Shri E. Nagachandran citing his personal difficulty. On 28.06.2012, he replied to the aforesaid letter stating that the said Shri D.K. Sharma was entitled to a reply only if the rules so provide and no penal action could be taken against him without the approval of the Minister of Statistics and Programme Implementation who is the competent authority in the matter. He has, therefore, requested Shri Sharma that in future, if he sends any communication to him needing a reply from him, he should make it clear in the said communication that the same had the approval of the competent authority so that no unauthorized person dealt with his file.
4. Thereafter, the Respondent No.1 has issued the aforesaid Memorandum to him. In reply to the same, vide his letter dated 14.09.2012, he denied the charges levelled against him and stated that the entire administrative machinery of the Ministry of Statistics and Programme Implementation was totally biased against him and it used all opportunities to harass him, even by using dubious means and false documents. He has also stated that he was totally innocent. He further requested the Disciplinary Authority to give him a fair opportunity to prove his innocence though in the face of a totally biased set of officers, it was an extremely difficult task. He has also stated that the aforesaid show cause notice was issued to him without waiting for his reply to the show cause notice and without obtaining the mandatory approval of the Honble Minister of State (Independent Charge) for Ministry of Statistics and Programme Implementation who was his Disciplinary Authority. Further, according to him, the said charge sheet was got approved by the Honble Minister by fraud. In order to disprove those charges and to prepare his defence, he has also requested the Disciplinary Authority to supply him some documents including the authenticated copies of the entire file containing all Note Sheets and correspondences dealing with the show cause notice No.11024/4(II)/2011-ISS dated 02.05.2012, show cause notice No.11018/4/2012-ISS dated 31.05.2012, draft Charge Sheet approved by the Disciplinary Authority, and the charge sheet dated 10.09.2012. As the Respondents did not respond to the aforesaid request, he again, vide his letter dated 22.10.2012, submitted to the Disciplinary Authority that the officers of the Respondent Ministry were resisting to furnish those documents by saying that there was no provision to supply the information sought by him. In this regard he has invited the attention of the Disciplinary Authority to Rule 16 of the CCS (CCA) Rules, 1965 which reads as under:-
16. Procedure for imposing minor penalties (1) Subject to the provisions of sub-rule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) recording a finding on each imputation or misconduct or misbehaviour; and (e) consulting the Commission where such consultation is necessary.
(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty.
(2) The record of the proceedings in such cases shall include-
(i) a copy of the intimation to the Government servant of the proposal to take action against him;
(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;
(iii) his representation, if any; (iv) the evidence produced during the inquiry; (v) the advice of the Commission, if any; (vi) the findings on each imputation of misconduct or misbehaviour; and (vii) the orders on the case together with the reasons therefore.
He has stated that according to the aforesaid provision, it is clear that the Government employee has to be given a reasonable opportunity to defend himself and without supplying the required documents to him, it cannot be said that reasonable opportunity has been provided to him. He has also stated that it is implicit in the said rule that the Disciplinary Authority should give the delinquent official an opportunity to inspect the relevant records but his request for inspection of certain relevant documents to submit a comprehensive reply, fell on deaf ears. He has also stated that the Respondents had earlier issued a major penalty against him charge sheet against him on 30.06.2008 and when his request for supply for certain documents to submit a comprehensive reply fell on deaf ears, he had to approach this Tribunal again vide OA No.1962/2008 and the Tribunal vide order dated 09.09.2008 directed them to permit him to inspect the desired documents. Again when they did not implement the aforesaid order, he has filed the Contempt Petition before this Tribunal. Then they filed a Writ Petition No.7789/2008 before the Honble High Court but the same was dismissed vide order dated 12.11.2008 and its relevant part is as under:-
The respondent herein is served with charge sheet dated 30.6.2008 which is issued under Rule 14 of the CCS (CCA) Rules, 1965. The action thus initiated is for major penalty proceedings. It is the case of the petitioner that respondent had approached CPIO under the Right to Information Act desiring certain information/documents. CPIO had passed orders and in the said application of the respondent, some of the documents were supplied to the respondent.
However, respondent thereafter filed OA before the Tribunal seeking supply of certain other documents. It is not disputed that these documents copies of which were demanded by the respondent are relevant. It is also not disputed that these documents have been supplied to the respondent. In fact respondent had filed contempt petition which has also been withdrawn by the respondent after supply of the documents.
In these circumstances, we do not deem it appropriate to entertain this petition in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. He has, therefore, once again requested the competent authority to supply him all the documents/records/information sought by him in his representation dated 14.09.2012. He has also submitted that the documents sought by him would prove that the action initiated against him was fraudulent and it was committed deliberately by certain officers of the Respondent Ministry only to malign and harass him, as was being done for the last so many years. He has also stated that even though the allegation of minor penalty charge sheet dated 10.09.2012 was that he had appeared in the case of E. Nagachandran, ISS before the Central Administrative Tribunal but the Respondent-Ministry has made no efforts to contact Shri E. Nagachandran to find the facts and truth. Therefore, he has written to E. Nagachandran in the matter and, he vide his letter dated 12.10.2012 denied that the Applicant had ever appeared in his behalf in the Tribunal.
5. The Applicant again on 21.12.2012 made a representation to the Disciplinary Authority to furnish him the copies of the required documents and the Respondents, vide their letter dated 23.11.2012, declined his request stating that no penalty was imposed upon him so far and, therefore, there was no requirement of showing the file at that stage. Against the said order, the Applicant approached this Tribunal earlier vide OA No.3762/2012 and this Tribunal, vide order dated 21.12.2012, set aside the Respondents Memorandum dated 23.11.2012 and directed the Ministry to allow him the inspection of the requested documents. The relevant part of the said order reads as under:-
18. In our considered view, the stand taken by the respondent altogether denying documents sought by the applicant and holding them as not relevant is arbitrary. We at the same time do not agree with the applicants demand to provide him with the copies of the entire file. The applicant being an employee of the respondent, both operating from the same place, can inspect the documents sought for and make notes for the purpose of making a suitable representation to the show cause notice issued to him. When there is already a provision under the Right to Information Act, 2005, to make available the copies of the relevant orders/documents as admissible under its provisions, the applicant could have made used of it. We also find the stand now taken by the Respondents in their Office Memorandum dated 23.11.2012 is quite strange. They are ready to disclose the contents of the file but after conclusion of the proceedings. It is a well settled principle of law that the post decisional opportunity being given to a delinquent government servant is not proper opportunity in consonance with the principles of natural justice.
19. We, therefore, partly allow this O.A. and quash and set aside the OM dated 23.11.2012 and permit the applicant to inspect the documents sought for by him. If he makes a written request to that effect to the Respondent Department, it shall permit the applicant to inspect the documents sought for by him within 10 days from receipt of such request. Thereafter, he may submit a comprehensive defence statement/representation within 10 days thereafter. On receipt of the same, the Respondent shall take a decision whether they would like to go ahead with the further proceedings as envisaged in Rule 16 of the CCS (CCA) Rules, 1965, within the next two weeks. If they decide to go ahead with the proceedings, the Disciplinary Authority shall pass appropriate orders in accordance with the rules within a month thereafter under intimation to the applicant. There shall be no order as to costs.
6. As the aforesaid order dated 21.12.2012 was not complied with by the Respondents, Applicant filed Contempt Petition No.11/2013. Petitioners submission was that in spite of the aforesaid order of this Tribunal dated 21.12.2012 he was not allowed to inspect the documents. Thereafter, the Respondents, vide their Memorandum dated 04.01.2013, allowed him to inspect the File No.11018/4/2010-ISS relating to minor penalty charge sheet on 10.01.2013 and he had following extracts from the said file:-
File No. 11018/4/2012-ISS [Note from F. No. 11024/4/2011-ISS] I, I.B. Lal, UDC had attended the Court today, i.e. 11.04.12 in MA No. 1527/11 in OA No. 1488/10 Shri E. Nagachandran Vs. UOI. The case was listed as item no. 24 in the Court No. 2 of CAT, P.B. N. Delhi. The Govt. Council Sh. C.S. Khan was present in the Court. Shri E. Nagachandran was not present in the Court. On behalf of Shri E. Nagachandran, Shri T.R. Mohanty informed the Court that due to illness of wife of Shri E. Nagachandran, he was not present in the Court.
The next date of hearing the matter has been fixed on 08.05.2012.
Submitted for information please.
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11.04.12 US (ISS) Above note may be seen. It is not clear how Shri T.R. Mohanty, DDG who is not a party in this case appeared in the case of another Govt. Servant (i.e. Sh. E. Nagachandran) Sd/- (11/4/12) Dir (ISS) - On leave JS A letter be given to ADG/CAP for his comment whether Shri Mohanty was on leave for the period and for getting comments from Shri Mohanty, regarding the capacity in which he appeared in the Court DFA pl.
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11/4/12 US (ISS) Pl. Discuss.
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12/4/12 SO (ISS) Discussed.
Sd/-(13/4/12) FR may kindly be seen. A letter REF/CSK/2012, dt. 17.04.12 has been received from Dr. Choudhary Shamsuddin Khan, Advocate on the subject MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran, vs. UOI.
It is submitted that Dr. Chaudhary Shamsuddin Khan, Advocate is defending the case in the CAT, PB, New Delhi in the interest of UOI.
It is mentioned in the letter that the captioned matter was fixed for arguments on 11.04.12 before the Honble CAT, but the same was adjourned to 08.05.12 on the request of Shri T.R. Mohanty, who informed that the petitioners wife is hospitalised, so he is unable to attend the Court.
Some bills are also attached with the letter for payment.
Submitted for information Please.
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20.04.12 Sd/-
23.04.12 US (ISS) Ref. : Notes at Pre-page DFA. I to ADG (CAP) and DFA-II to DDG (RPU) seeking clarification are placed below for approval Pl.
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23/4/12 Dir (ISS) - On leave JS Approved.
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1/5/12 US (ISS) Sd/-
1/5/12 US (ISS) Two letters issued to concerned.
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2/5/12 SO (ISS) Sh. Lal The case being discussed in the file relates to appearance of Shri T.R. Mohanty, DDG on behalf of applicant in CAT Principle Bench, New Delhi on 11.4.2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran, Vs. UOI.
The appearance of officer of the level of DDG on behalf of the applicant in a case against UOI in which he is not a party and the subject matter is not concerned with his subject of work, is a misconduct as may be seen from extracts of Hand Book for Disciplinary Authorities (Flag X). Even otherwise also Shri Mohanty DDG was supposed to perform his official duty at the time when he appeared in the CAT, PB, New Delhi on 11.4.2012. Thus not only his behaviour was not in consonance with the discipline to be shown by officer of DDG level, he also remained absent from his official work unauthorisedly albeit for a brief period.
We had requested ADG (CAP), CSO about the appearance of Shri Mohanty in CAT. ADG vide note (CP/6) informed that he had no intimation from Shri Mohanty nor Shri Mohanty had applied for any leave. Shri Mohanty, DDG was also requested vide letter dt. 2.5.2012 (CP/5) to clarity as to the capacity in which he appeared in the case against Union of India. Response of Shri Mohanty, DDG is yet to be received. In the meantime we have also obtained record of proceeding of the CAT, PB, New Delhi dated 11.4.2012 (CP/7) and it clearly indicates about appearance of Shri Mohanty on behalf of the applicant.
As no response has been received from Shri Mohanty, DDG with reference to our letter dated 02.05.2012, it is proposed that we may send a reminder to him for reply within a period of 10 days.
DFA is placed below for approval pl.
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29/5/12 Dir (ISS) May kindly be approved pl.
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30/5/12 JS Approved.
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30/5/12 Dir (ISS) Pl. Issue.
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31/5/12 US (ISS) The case being discussed in this file relates to appearance of Shri T.R. Mohanty, DDG on behalf of applicant in CAT Principle Bench, New Delhi on 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran, Vs. UOI. After the heaving on 11th April 2012, the dealing hand who attended the matter vide his note dated 11th April, 2012 at page 1/ante intimated that the applicant Shri E. Nagachandran, DD was not present during the hearing and in his absence Shri T.R. Mohanty, DDG sought adjournment of the matter on account of illness of the wife of applicant. The government counsel vide letter dated 17th April, 2012 (CP/1) also intimated about the appearance of Shri Mohanty, DDG in the CAT in above said matter seeking adjournment on behalf of applicant. In this regard, we also obtained record of proceedings of CAT dated 11th April, 2012 in in MA No. 1527/2011 & 2404/2011 in OA No. 1488/ 2010 in the matter of Shri E. Nagachandran, Vs. UOI. As per the record of proceedings Shri T.R. Mohanty, appeared in person on behalf of the applicant i.e. Shri E. Nagachandran, DD in CAT Principle Bench, New Delhi on 11th April, 2012.
2. The appearance of Officer of the level of DDG on behalf of the applicant in CAT in a case against UOI, in which he is not a party and the subject matter is not concerned with subject of his work, is inappropriate. Even otherwise also Shri Mohanty, DDG was supposed to be performing his official duty at the time when he appeared in the CAT, PB, New Delhi on 11th April, 2012. Thus not only his behaviour was not in consonance with the discipline to be shown by officer of DDG level, he also remained absent from his official work unauthorizedly albeit for a brief period. Since it was not clear whether Shri Mohanty left his duty/post to attend the case on behalf of applicant with any permission/leave from his controlling officer, when this matter was reported, a reference was made to ADG(CAP), MOSPI, seeking confirmation from him as to whether Shri Mohanty, DDG had sought any permission or any kind of leave to appear in CAT, on 11th April, 2012. A copy of the letter dated 2nd May, 2012 sent to ADG(CAP) is at CP/4. Simultaneously, a reference was also made to Shri T.R. Mohanty on 2nd May, 2012 (CP/5) seeking his clarification regarding the capacity in which he appeared in the case on 11th April, 2012 in CAT on behalf of applicant.
3. These clarifications were sought as part of Preliminary Enquiry and as per the Disciplinary Proceedings-Digest by Swamy Publications, the purpose of preliminary enquiry is to collect the facts in regard to the conduct and work of the government servant concerned in which he may or may not be associated. This preliminary enquiry need not necessarily be done by the Disciplinary Authority or with the express approval of the Disciplinary Authority. While no response on the subject was received from Shri T.R. Mohanty, DDG with reference to our letter dated 2nd May, 2012, his controlling officer vide his note dated 2nd May, 2012 (CP/6) informed that Shri Mohanty neither applied for any have nor intimated or sought any permission for the purpose. Thus, prima facie it became clear that Shri T.R. Mohanty, DDG appeared in the CAT, Principle Bench New Delhi on 11th April, 2012 in the MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. UOI on behalf of the applicant without any kind of leave or permission. This implies that he appeared in the CAT, Principle Bench New Delhi on behalf of the applicant, Shri E. Nagachandran, DD by deserting his post on 11th April, 2012 by unauthorised absence.
4. As no response was received from Shri Mohanty, DDG another OM dated 31st May, 2012 (CP/9-10) was sent through his controlling officer i.e. ADG (CAP) with request to get the OM delivered to Shri Mohanty and his acknowledgement obtained vide note dated 4th June, 2012 (CP/13) it was informed by ADG(CAP) that OM was handed over to Shri Mohanty, DDG, however Shri Mohanty, DDG did not acknowledge the receipts of the letter. No Specific reply has been received from Shri Mohanty in response to the clarification sought from him vide OM dated 2nd May, 2012 and 31st May, 2012. However, one letter dated 28th June, 2012 (CP/14-17) has been received from Shri Mohanty. No reference to this case has been made in this reply and it appears to be an attempt to divert the issues by not responding to the clarifications sought from him. Shri Mohanty, DDG instead of responding to the alleged misconduct, is asking for the instructions/ rules etc., which mandates submission of reply by him. In fact, as may be seen from the contents of this letter, Shri Mohanty, has made unsubstantiated imputations against JS & Secretary, MOSPI. At last, he has given an impression that until and unless he is informed about the express approval of Minister of Statistics and PI, he will not respond to any communication. As mentioned earlier since this reply is not with specific reference to our OM dated 2nd May, 2012 and 31st May, 2012, this reply is of no consequences and even if, it intends to refer to the subject, the reply itself is evasive and gives impression of arrogance with scant regard for the rules/regulations regarding proper conduct by a Government Servant. By not responding to the specific issue, Shri Mohanty, DDG has given an impression that he has nothing to clarify.
5. In the context of the matter related to the appearance of Shri Mohanty, DDG in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran vs. UOI on behalf of the applicant i.e. Shri Nagachandran, DD, it is submitted that it was none of the concern of Shri Mohanty, DDG to appear for another officer in a case against Union of India specially when he was neither a co-applicant in that case nor he was remotely related to the subject matter of that case. His appearance in CAT in that case against Union of India is an act prejudicial to the interest of Union of India and it appears to be a case of conflict of interest on his part. As per the Govt. Of India Instructions [GID No. 12 below Rule 15 of the CCS (Conduct) Rules 1964] Govt. Servants can enrol themselves as advocates, but are not allowed to engage in the legal profession either independently or otherwise for so long as he continues in Government Service. While Shri Mohanty has every right to constitute a legal suit against the Union of India on his own matter related to the Service, no rules gives him any liberty to appear on behalf of the other Government Servant in a case against Union of India. Thus, first of all his appearance in the case is a misconduct and secondly he indulged in another misconduct of deserting his duty/post unauthorisedly on 11th April, 2012 to appear in the CAT, Principal Bench, New Delhi.
6. As regards the misconduct the various instances of Misconduct have been enumerated in Chapter 19 of the Handbook for Disciplinary Authorities by Shri G.B. Singh. It refers to the judgment of Honble Supreme Court in Baldev Singh Gandhi vs. State of Punjab, AIR 2000 SC 1124. It has inter alia been clarified by Supreme Court that the word misconduct means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression the expression misconduct has to be construed with reference to the subject and context wherein the expression occurs. Further, in another case M.M. Malhotra Vs. Union of India 2005 AIR SCW 5497, the Honble Supreme Court inter alia observed that the word misconduct on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject matter and the context where terms occurs, having regard to the scope of the statute and the public purpose it seeks to serve. Since, Shri Mohanty is a DDG level Officer, his act of appearing on behalf of another applicant in a Court Case related to the service matter of some other applicant that too by deserting his duty/post is misconduct inviting Disciplinary proceeding.
7. However, since the misconduct committed by Shri Mohanty, DDG is not of grave consequence, Minor Penalty proceedings under Rule 16 of the CCS (CCA) Rules, 1965 may be initiated. Rule 16 of the CCS (CCA) Rules, 1965 stipulates the following procedures :
(a) Informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) Holding an inquiry in the manner laid down in sub-Rule (3) to (23) of Rule 14, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary;
(c) Taking the representation, if any submitted by the Government Servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) Recording a finding on such imputation of misconduct or misbehaviour; and
(e) Consulting the commission where such consultation is necessary.
8. In terms of Rule 16 Inquiry in the Minor Penalty Proceeding is required if it is decided by the Disciplinary Authority that such Inquiry is necessary as stipulated in Sub-Rule 16(1)(b) or depending upon the quantum of punishment proposed to be imposed after submission of representation as per provisions of Rule 16 (1-A). The other circumstance in which the inquiry is required if such Inquiry is demanded by the CO. Even in such cases the Disciplinary Authority can decide not to hold Inquiry by recording the reasons.
9. Accordingly, file is submitted for approval of Honble MOS(IC) for initiation of Minor Penalty Proceedings against Shri T.R. Mohanty, DDG for being Disciplinary Authority. A draft of Minor Penalty Charge Sheet placed below is also submitted for approval.
Sd/- 29/6/12 (D.K. Sharma) Under Secretary (ISS/Vig.) Dir (ISS) May kindly be got approved by Honble MOS(IC).
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29/6/2012 JS Lets take the opinion of DOPT regarding para-6 as to whether it can be confirmed as misconduct.
Draft be put up.
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10/7/2012 Dir (ISS) Pl comply.
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10/7/12 US(ISS) The specific instance of misconduct on which minor penalty charge are proposed are as below:
(i) Appearance of Shri T.R. Mohanty, DDG in CAT on 11.4.2012 on behalf of the applicant and against UOI in a case in which he is not a party.
(ii) Appearing in CAT on behalf of other applicant on 11.4.2012 without any leave or permission thus absenting/deserting his post unauthorisedly.
As desired file may be referred to DOPT.
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11/7/2012 Dir (ISS) Sd/-
11/7/2012 Sh. P. Prabhakaran, Dir (Estt.), Deptt. Of Personnel & Training (AVD Division, North Block, New Delhi
----------------------------------------------------------------------------MOSPI ID No. 11018/4/2012-ISS dt. 11.7.12 Sd/-
11/7US(C) F. No. 11018/4/2012-ISS Department of Personnel & Training Estt. A-III Reference Notes of Ministry of Statistics & Programme Implementation on pre-pages.
2. It may be mentioned in this connection that as per extant instructions Government servant can be permitted to enrol himself as an Advocate, but should not engage himself in the legal profession either independently or otherwise for so long as he continues in Government service.
3. In the instant case, the above Government instructions issued vide G.I. Dept. of Per. & A.R., U.O. No. D-207/74-Ests.(A) dated 15th January, 1974 have been violated by an officer holding a high post as DDG in the Government of India. All Government servants particularly the officers at the higher levels are always required to follow all Rules/Regulations/Policies/Procedures and Instructions of Government. Violation of any such Rule/Regulation/ Policy/ Procedure, discipline or decorum and instruction by any Government servant or any action in contravention of such Rules/Instructions should always be treated as misconduct and disciplinary action should be initiated against such Government servant as per prescribed Rules. Violation of these important instructions by an officer holding such a high post and appearing in a case on behalf of an individual against the Union of India is not only a gross violation of instructions and grave misconduct but also a case of impropriety, indiscipline and violation of decorum. The case may be submitted to the Disciplinary Authority seeking his order for initiation of disciplinary proceedings as per the prescribed Rules.
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(U.S. Chattopadhyay) US/12.7.2012 Director (E) Sd/-
12/7/12 JS (E) Sd/-
18/712Dir (E) Sd/-
18/7/12 US(C) Ministry of Statistics (Joint Secretary) DOPT Dy. No. 61788/IR/2012 dt. 19/7/12 Please put up for Decision of Disciplinary Authority.
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19/7/12 Dir (ISS) For n.a. pl.
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19/7/12 US(ISS) Sd/-
20/7/12 The case being discussed in this file relates to appearance of Shri T.R. Mohanty, DDG on behalf of applicant in CAT, Principal Bench, New Delhi on 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. UOI. After the hearing on 11th April, 2012, the dealing hand who attended the matter vide his note dated 11th April, 2012 at page 1/ante intimated that the applicant Shri E. Nagachanddran, DD was not present during the hearing and in his absence Shri T.R. Mohanty, DDG sought adjournment of the matter, on account of illness of the wife of applicant. The government counsel vide letter dated 17th April, 2012 (CP/1) also intimated about the appearance of Shri Mohanty, DDG in the CAT in above said matter seeking adjournment on behalf of applicant. In this regard, we also obtained record of proceedings of CAT dated 11th April, 2012 in MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. UOI. As per the record of proceedings Shri T.R. Mohanty appeared in person on behalf of the applicant i.e. Shri E. Nagachandran, DD in CAT Principal Bench, New Delhi on 11th April, 2012.
2. The details of the case has been examined vide notes at page 5-8/ante. After examination of the matter, it was proposed that the Minor penalty proceedings under Rule 16 of the CCS (CCA) Rules, 1965 may be initiated. However, in view of the nature and gravity of the misconduct committed by Shri Mohanty, DDG, it was decided to refer the matter to DOPT for their opinion. DOPT vide notes at Page 9/ante has given its opinion.
3. DOPT has opined that violation of the instructions and appearing in a case on behalf of individual against the UOI by such a higher officer is not only a gross violation of instructions and grave misconduct but also a case of impropriety, indiscipline and violation of decorum. DOPT has accordingly advised to seek the order of the Disciplinary Authority.
4. The earlier proposal of the ISS Division regarding the minor penalty proceeding against Shri Mohanty, DDG is therefore needs to be reconsidered in view of the opinion of the DOPT and it may be left to the wisdom of the Disciplinary Authority whether to initiate minor or major penalty proceedings in this case.
5. File is submitted for decision by the Honble MOS(IC).
Sd/- 23/7/12 (D.K. Sharma) Under Secretary (ISS/Vig.) Director (ISS) Sd/-
23/7/2012 JS F.No. 11018/4/2012-ISS Subject: Disciplinary proceedings against Shri T.R. Mohanty regarding his appearance in CAT.
This is a proposal for initiating disciplinary proceedings against Shri T.R. Mohanty, an SAG level officer of ISS, working in the Ministry. The reason for this is his appearance in a Court case against Union of India, i.e. Ministry of Statistics & Programme Implementation. He also did not take any leave or permission for his appearance in the Court from the controlling officer, i.e. ADG/CAP, CSO, as is evident from the endorsement of Shri Bhatia on page 6/c. Shri Mohanty was also given a notice to clarify his action (page 5/C and pp 12-13/C). His letter on page 14/C completely ignores this communication, but tries to imply that neither Joint Secretary nor Secretary can handle his case in the Ministry as he has made complaints against them. Basically, he is trying to avoid giving any reply on this issue. There was, therefore, no option but to initiate the case for the decision of the Disciplinary Authority. Notes from page 5/N may kindly be seen in this regard. Opinion of DOP&T was sought and vide their note on page 9/N, have termed it as a gross violation of instructions and grave misconduct but also a case of impropriety, indiscipline and violation of decorum. They have also advised for submitting the case to the Disciplinary Authority for approval to initiate disciplinary proceedings.
2. In view of this position, it is recommended that a minor penalty proceeding be initiated against Shri Mohanty. A draft charge sheet is also put up for perusal and approval please.
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(Arvind Kumar) Joint Secretary 17.08.2012 Special Secretary Sd/- (17/8/12) Secretary Sd/- (17/8/12) Honble MOS (IC) & Disciplinary Authority Sd/- (28/8/12) Secretary (S&PI) Sd/-
4/9/2012 S.S. Sd/-
4/9/12 JS(A) Please take further action.
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4/9/12 Dir (TSJ) Please comply.
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4/9/12 US (ISS) Ref: Notes on pre-page Fair copy of the Minor Penalty charge sheet is placed at DFA for approval pl.
Sd/- (7/9/12) Dir (ISS) May kindly be approved pl. DFA was already approved by Honble MOS (IC) at pre-page.
Sd/- (7/9/2012) JS Approved as approved by Honble MOS (IC) at .... (word illegible) Sd/- (10/9/2012) Dir (ISS) Pl. issue.
Sd/- (10/9/2012) US(ISS) Pl issue under Registered Post with AD and return the file.
Sd/- (10/9/2012) SO (ISS) Ms. Bhatia.
Please despatch on Urgent basis.
RP with acknowledgement.
Sd/- (10/9/2012) Memorandum has been sent to Shri Mohanty DDG through Registered AD at his office address. A copy may be sent through the controlling officer of Shri Mohanty. A draft letter is placed below for approval and signature pl.
Sd/- (10/9/2012) Dir (ISS) Pl. issue.
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11/9/2012 US(ISS) Ms. Bhatia pl. issue in sealed cover.
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11/9/2012 Please issue in sealed envelop and return the file.
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11/9/12 SO(ISS).
7. Thereafter, the Applicant submitted representation on 04.01.2013 stating that between the date of minor penalty charge sheet issued to him on 10.09.2012 and the inspection of documents allowed on 10.01.2013, full four months precious time was lost keeping the Damocles sword hanging over his head. He has also stated that the Annual Conference of the Central and State Statistical Organisations were slated to be held on 10.01.2013 and 11.10.2013 at Gangtok and he was one of the invitees of the said organisation but after receipt of the said Memorandum dated 04.01.2013, he had to cancel the said programme. He has also stated that the aforesaid charges have been framed against him to trap him by stating that he deserted the post which was factually incorrect. He has also stated that assuming but not conceding that he had indeed attended the Tribunal on 11.04.2012, being a Gazetted Officer, he did not require any permission to leave the office for an hour or so under any rules issued by the Government.
8. He has also stated that Shri I.B. Lal, UDC who attended the case in this Tribunal on 11.04.2012 submitted the aforesaid note on the same date. But the Respondent No. 4 put up a note on 29.05.2012 to the Director (ISS) stating that the appearance of the Applicant in a case against UOI in which he is not a party and the subject matter is not concerned with his subject of work, is a misconduct. Again, vide his note dated 29.06.2012, he opined that the Applicants act of appearing on behalf of another applicant in a court case related to the service matter of some other applicant that too by deserting his duty/post is misconduct inviting disciplinary proceedings. However, the Joint Secretary concerned has the serious doubt whether the alleged action on the part of the Applicant was misconduct or not. He has, therefore, sought the advice of the Department of Personnel and Training in the matter. Thereafter, the Respondent No.4 referred the following two specific instance of misconduct on which minor penalty charge are proposed:
(i) Appearance of Shri T.R. Mohanty, DDG in CAT on 11.4.2012 on behalf of the applicant and against UOI in a case in which he is not a party.
(ii) Appearing in CAT on behalf of other applicant on 11.4.2012 without any leave or permission thus absenting/deserting his post unauthorisedly.
9. According to the Applicant, the above referral is factually incorrect and it was a fraud played by the Respondents on the Department of Personnel and Training as the initial Note of Shri I.B. Lal was recorded on Page No. 14 of the Note Portion of File No. 11024/4/ 2012-ISS, but it was later converted as Page No. 1 of File No. 11018/4/2012-ISS. The new file did not contain the Case Records, especially those of the two MAs pending before the Honble Central Administrative Tribunal and the replies thereto. Had the Case Records been on file then the Department of Personnel and Training would have seen for themselves that the two MAs in question were not against Union of India as had been claimed, but was against Respondent No. 4 in person for having committed the criminal act of perjury. Thus, the cases in which he was alleged to have appeared was against Respondent No. 4 in his personal capacity and not against Union of India. Therefore, the misrepresentation to the Department of Personnel and Training that the cases were against Union of India was a fraud played. He has also stated page 1 of the Correspondence Side of File No. 11018/4/2012-ISS was a letter from Dr. Chaudhury Shamsuddin Khan, Advocate, dated 17.04.2012, addressed to Respondent No. 4. The said letter was not available in original. But from the photocopy available in the file, it was seen that the word D in the letter has been overwritten as T in pen later on. The text of the said letter is as follows:
Sub: MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran Vs. Union of India.
Sir, The above captioned matter was fixed for arguments on 11.04.2012 before the Honble Tribunal but the same was adjourned to 08.05.2012 on the request of Mr. D.R. Mohanty who informed that the petitioners wife is hospitalised so he is unable to attend the court. Page 35 of the Correspondence Side of the said file was a letter dated 03.09.2012 by Respondent No. 4 addressed to Dr. Chaudhury Shamsuddin Khan, Advocate asking him to find out identity of T.R. Mohanty who appeared in the matter in question. Thus, even, when the Respondent No.4 was not sure of the identity of the person who appeared in the matter, he misrepresented the facts before the Department of Personnel and Training, thereby playing fraud on them.
10. The Applicant has also produced a copy of the U.O. note dated 15.01.1974 referred to in the aforesaid advice of the DOP&T which reads as under:-
(12) Permission to enrol with the Bar Association. It is clarified that the Government servant can be permitted to enrol himself as an Advocate, but should not engage himself in the legal profession either independently or otherwise for so long as he continues in Government service.
[G.I., Dept. of Per. &A.R., U.O. No. D. 207/74-Ests. (A), dated the 15th January, 1974.].
11. The reply on behalf of all the Respondents has been filed by Shri D.K. Sharma, Under Secretary who has been arrayed as Respondent No.4 in the OA. They have stated that this OA is premature as no final order has been passed against the Applicant pursuant to the impugned Charge Memorandum and, therefore, the relief sought by the Applicant to quash and set aside the impugned minor penalty charge sheet dated 10.09.2012 is not liable to be granted. In this regard, they have relied upon the judgment of the Apex Court in the cases of Union of India and Another Vs. Ashok Kacker 1995 Supp (1) SCC 180; Union of India Vs. Kuni Setty Satyanarayana 2007(1) SCT 452; State of Punjab and Others Vs. Ajit Singh 1997(11) SCC 368 and DIG of Police Vs. K. Swaminathan 1996 (11) SCC 498. They have also stated that the Applicant has earlier filed OA No.3762/2012 before this Tribunal seeking the following reliefs:-
(1) to allow the present application;
(2) to direct the Respondent to dispose of the representations of the applicant by providing the applicant with the requisite information;
(3) to direct the Respondent to grant two weeks time to the applicant after supply of the information/documents to submit his written statement of defence in response to the charge-sheet dated 10.09.2012 and make any such further requests that are admissible to the Government servant under the rules and the law;
(4) to direct the Respondent to thereafter consider the oral and written submissions of the applicant and take appropriate decision to be conveyed to the applicant in terms of a reasoned and speaking order;
(5) to allow exemplary costs of the application; and (6) to issue any such and further order/directions this Honble Tribunal deems fit and proper in the facts and circumstances of the case.
The said OA was partly allowed vide order dated 23.11.2012 permitting the Applicant to inspect the documents sought by him. The said order was complied with. Therefore, it was incumbent upon the Applicant to abide by the aforesaid directions of this Tribunal and the relief sought by him in the present OA to quash the minor penalty charge sheet dated 10.09.2012 is barred by principle of res judicata/constructive res judicata. It also amounts to interfering with judicial pronouncement and waste of precious time of this Tribunal.
12. Learned counsel for the Respondents Shri R.N. Singh has also relied upon the following judgments:-
(i) Union of India and Another Vs. Ashok Kacker 1995 Supp.1 SCC 180.
(ii) Union of India Vs. Upender Singh JT 1994 (1) SC 452.
(iii) Union of India Vs. Kuni Setty Satyanarayana 2007(1) SCC 452.
(iv) State of Punjab and Others Vs. Ajit Singh 1997 (11) SCC 368.
(v) DIG of Police Vs. K. Swaminathan 1996 (11) SCC 498.
13. In its judgment in the case of Ashok Kacker (supra), the Apex Court held that before the delinquent officer submits his reply to the charge sheet, this Tribunal is not required to examine the case on merits. The relevant part of the said order reads as under:-
4. Admittedly, the respondent has not yet submitted his reply to the charge- sheet and the respondent rushed to the central Administrative tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the tribunal, we do not consider it necessary to require the tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him.
14. In the judgment in the case of Upendra Singh (supra), the Supreme Court held that the Tribunal ought not to interfere at an interlocutory stage of the department proceedings. The relevant part of the said order reads as under:-
7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate.
15. In the judgment in the case of Kunisetty Satyanarayana (supra), the Supreme Court held ordinarily no writ lies against charge sheet or show cause notice as it does not give rise to any cause of action unless same is issued by person having no jurisdiction to do so. The relevant part of the said order reads as under:-
13. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
14. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
15. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
16. In the judgment in the case of Ajit Singh (supra), the Supreme Court held that till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever. The relevant part of the said order reads as under:-
3. We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. We are, however, of the view that the High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.
17. In the judgment in the case of K. S. Swaminathan (supra), the Apex Court held that examining the correctness of charges, particularly at the stage of framing of charges is beyond the scope of judicial review. The relevant part of the said judgment reads as under:-
4. It is settled law by a catena of decisions of this court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this court in appeals arising out of Special Leave Petitions (C) Nos. 19453-63 of 1995 had on 9/2/1996 allowed the appeals, set aside the order passed by the tribunal and remitted the matter holding that:
"This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this court in such matters."
18. The Applicant, in the rejoinder, has submitted that OA No.3762/2012 (supra) was filed by him against the impugned Charge Sheet dated 10.09.2013. Hence the objection of the Respondent with regard to res judicata is wrong. As regards the submission that this OA is premature, he has stated when the applicant approached the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. In this regard he has relied upon the judgment of the Honble Supreme Court in Zenit Mataplast P. Ltd v. State of Maharashtra, AIR 2009 SC (Supp) 2364 wherein it has been held as under:-
20. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani V. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther V. Kerala Financial Corporation, AIR 1988 SC 157).
21. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs V. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-
"The State is to deny no one equality before the law........ Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract.......Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review."
22. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.
19. As regards the objection of the Respondents that no cause of action has arisen in the case, he denied the same and relied upon the judgment of the Apex Court in the case of Om Prakash Srivastava v. Union of India, (2006) 6 SCC 207 wherein it has been held as under:
In order to maintain a writ petition a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof.
By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors. (1994 (6) SCC 322).
In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (6) SCC 514).
The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates' Association v. Union of India and Ors. (2001 (2) SCC 294).
The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh (1977 (1) SCC 791).
The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. (2000 (7) SCC 640).
In Halsbury Laws of England (Fourth Edition) it has been stated as follows:
"Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
20. Further according to him, if no misconduct has been made out in the Charge Memorandum, the Courts/Tribunals can very well interfere. In his case, according to him, no misconduct can be alleged. In this regard, he has relied upon the judgment of the Apex Court in the case of Union of India v. Upendra Singh, (1994) 3 SCC 357 wherein it has been held as follows :
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. ......... The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Kamal v. Gopi Nath & Sons [1992 Supp (2) SCC 312]. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
(Emphasis Supplied)
21. He has also relied upon the judgment of the Apex Court in the case of Union of India and Another v. Kunisetty Satyanarayana 2007 (1) SCT 452 wherein it has been held as under :
It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
22. Further, he has relied upon the order of this Tribunal dated 07.04.2011 in O.A. No. 48 of 2011 (Dr. Kuldip N. Sharma, IPS v. State of Gujarat), wherein the Respondents, inter-alia, placed reliance on the judgments of (i) Union of India v Upendra Singh, [(1994) 3 SCC 357]; (ii) Dy. Inspector General of Police v K.S. Swaminathan, [(1996) 11 SCC 498]; and (iii) State of Punjab v Ajit Singh, [(1997) 11 SCC 368]. However, this Tribunal rejected the reliance on those judgments and quashed the Charge-Sheet holding as follows:
11. Whereas, the learned counsel representing the applicant would submit that if the charges framed may not disclose any misconduct or irregularity or are contrary to law or are based upon mala fides, factual or legal, and/or are an outcome of arbitrariness, it would always be open for the Tribunal or Court to interfere and quash the charges even at the threshold, the learned Addl. Advocate General representing the respondent State would join serious issues with the contention of the learned counsel for the applicant as noted above. He would urge that it is a settled proposition of law that a petition or application challenging issuance of memorandum of charges would be premature and the Tribunal/ Court would not go into the correctness, adequacy or sufficiency of the charges contained therein at a premature stage and permit an officer to pre-empt the departmental proceedings. We must clear the decks before we may come to the core controversy, as surely if there is a blanket bar for the courts and tribunals not to interfere at the initial stage, the exercise to go into the issues raised by the applicant for setting aside the charges on the grounds as pleaded by him would be in futility. In Union of India v Upendra Singh [(1994) 3 SCC 357], the Honble Supreme Court held that in the case of charges framed in a disciplinary enquiry the Tribunal or Court can interfere only if on the charges framed no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At that stage the Tribunal would have no jurisdiction to go into the correctness or truth of the charges, which is a matter for the disciplinary authority to go into. It has also been held that the jurisdiction of the Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution, and, therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal, and that if the Original Application were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that the High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs, like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view. If the charges may be vague, where there may be no material particular mentioned, the same can be quashed under the powers exercised by the Tribunal and the High Court. In this connection, reference is made to the judgment of the Honble Supreme Court in Transport Commissioner, Madras v A. Radha Krishna Moorthy [(1995) 1 SCC 332]. In Dy. Inspector General of Police v K.S. Swaminathan [(1996) 11 SCC 498], it has been held that judicial review in quashing the charges is limited. The Tribunal or Court has only to see whether statement of facts and material supplied to the delinquent disclose the misconduct alleged. It was likewise held in State of Punjab v Ajit Singh [(1997) 11 SCC 368] and number of other judicial precedents on which the learned counsel representing the respondents has placed reliance. It would, however, be unnecessary to refer to all the judicial precedents, as it is indeed a settled proposition of law that judicial review at initial stage is limited. In addition to the grounds taken by the applicant in seeking quashing of the charge, there are some other grounds as well, like if the charge-sheet has not been issued by the competent authority, or that there is unexplained delay in initiating departmental proceedings, and where delay would prejudice an employee in his defence. Primarily, we accept the contention of the learned counsel representing the respondents that judicial review at this stage is limited. Counsel for the applicant, however, we may reiterate, is not joining any serious issues as regards limited scope for judicial review at this stage by the Tribunal. He urges that he would confine his case only on such grounds on which even at this stage this Tribunal can interfere.
23. We have heard the Applicant Shri T.R. Mohanty in person and learned counsel for the Respondents Shri R.N. Singh in quite detail. The Applicants challenge in this Original Application is against the Memorandum dated 10.09.2012 issued to him by the Respondent No.1 proposing to take action against him under Rule 16 of the CCS (CCA) Rules, 1965. It is a settled law that normally a mere charge-sheet or show-cause notice does not give rise to any cause of action because it does not amount to an adverse order which affects the rights of any party. However, in exceptional cases the Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal as held by the Honble Supreme Court in Kunisetty Satyanarayana (supra). Further, the Apex Court has held in the judgment in the case of Upendra Singh (supra) that in the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law.
24. In our considered view, the Respondent No.4 has dragged a too trivial matter so disproportionately which has caused so much avoidable problems to the Applicant. He has made a mountain out of a molehill. The first charge against the Applicant was that he appeared in person on behalf of his colleague Shri E. Nagachandran, Deputy Director in MA Nos.1527/2011 & 2404/2011 in OA No.1488/2010 before this Tribunal on 11.04.2012 and his said appearance was a conduct prejudicial to the interest of Union of India. The second charge was that for appearing in the aforesaid case, he has not sought any kind of leave or permission from his Controlling Officer to absent himself from office while drafting the aforesaid charges for the approval of the Honble Minister who was the Disciplinary Authority of the Applicant, the Respondent No.4 conveniently suppressed the material fact that the Applicants alleged statement before this Tribunal was that due to illness of Shri E. Nagachandran, he was not present in the Tribunal. The Applicant, of course, totally denied his involvement in the matter. But assuming that the Applicant did appear before this Tribunal as alleged by the Respondents, how does his appearance was prejudicial to the Union of India. There is nothing on record to show that the aforesaid alleged delinquency would fall within the ambit of any misconduct for which disciplinary case could be initiated against the Applicant. The Apex Court in its judgment in the case of Union of India and Others Vs. K.K. Dhawan AIR 1993 SC 1478 held that the following six conditions have to be fulfilled before initiating disciplinary proceedings against an employee:-
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."
25. The Apex Court also in its judgment in the case of Union of India & Ors. vs. J. Ahmed 1979 (2) SCC 286 has considered the meaning of the term misconduct and held that it shall be un unlawful behaviour by a public servant wilful in character. There shall be some ill motive behind his action. The relevant part of the said judgment reads as under:-
11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
26. Further it is seen from the departmental records that neither the Respondent No.4 nor any other officers of the Respondent-Ministry have ever seen the content of MAs No.1527/2011 and 2404/2011 (supra) or the order of this Tribunal dated 11.04.2012 therein before they arbitrarily assumed that the alleged appearance of the Applicant was prejudicial to the interest of the Union of India and, therefore, it was a misconduct and recommended to the Minister-in-Charge who was the Applicants Disciplinary Authority to initiate minor penalty proceedings under Rule 16 of the CCS (CCA) Rules, 1965. According to the note put up by the Respondent No.4 on 29.06.2012, proposing to initiate the aforesaid proceedings to the Minister-in-Charge, he considered the alleged misconduct committed by the Applicant was not of grave consequence. At that time also the Respondents did not have the copy of the order of this Tribunal dated 11.04.2012. Even on 11.07.2012, when the matter was referred to the DOP&T, the Respondent No.4 did not have the copy of the aforesaid MAs and the order of this Tribunal dated 11.04.2012. In fact, the Respondents obtained the copy of the aforesaid order of this Tribunal much later as is evident from the subsequent note submitted by Respondent No.4 on 23.07.2012. In any case, the departmental representative Shri I.B. Lal, UDC who attended the court proceedings on 11.04.2012 reported to the Respondent only to the extent that court adjourned the said MAs to 08.05.2012 on the request of Mr. T.R. Mohanty who informed that the petitioners wife was hospitalised and he was unable to attend the court. But the Respondent No.4 was more interested in knowing as to how the Applicant who was not a party in the case of another Govt. Servant (i.e. Sh. E. Nagachandran) appeared in the Court. Thereafter, a preliminary enquiry was held behind the back of the Applicant. The Government Counsel Dr. Choudhary Shamsuddin Khan was asked to give a report in the matter. He informed the Respondent No.4 that the case was adjourned on the request of Shri T.R. Mohanty, who informed that as the petitioners wife was hospitalised he was unable to attend the Court. The immediate superior officer of the Applicant, i.e. ADG(CAP) was also asked to confirm whether the Applicant had taken his permission to appear before the Court and the ADG (CA) informed the Respondent No.4 that the Applicant did not apply for any leave. Thereafter the Respondent No.4 arrived at the conclusion that the appearance of the Applicant before this Tribunal in a case against the Union of India was inappropriate and not in consonance with the discipline to be shown by officer of DDG level and he also remained absent from his official work unauthorizedly albeit for a brief period. But the strange thing is that the Respondent No.4 purposely did not seek any clarification from Mr. E. Nagachandran, Deputy Director who was the Respondents own employee on whose behalf the Applicant alleged to have appeared before this Tribunal.
27. Further it is seen that the Respondent No.4 wrote a letter to the Applicant on 02.05.2012 stating that he had appeared in person on 11.04.2012 and sought adjournment on account of personal difficulty of Shri Nagachandran, DD. He was, therefore, asked as to explain in what capacity he appeared in a case against the Union of India. The said letter is reproduced as under:-
CONFIDENTIAL SPEED POST No.1024/4(II)/2011-ISS Government of India Ministry of Statistics and Programme Implementation Sardar Patel Bhawan, Sansad Marg, New Delhi-110001 Dated 2nd May, 2012 Sub: MA No. 1527/2011 & 2404/2011 in OA No. 1488/2010 in the matter of Shri E. Nagachandran STS of ISS Vs. Union of India in CAT, Principal Bench, New Delhi-reg.
The above two MAs in the matter of E. Nagachandran, STS of ISS s. U.O.I. was listed for hearing on 11.04.2012 in CAT, Principal Bench, New Delhi and the same was adjourned to 08.05.2012. It has been brought to the notice of this Ministry that on behalf of the Applicant Shri Nagachandran, DD, you had appeared in person on 11.04.2012 and sought adjournment on account of personal difficulty of Shri Nagachandran, DD.
2. As you are not a party to the case, you are requested to clarify the capacity in which you had appeared in the case on 11.04.2012 in CAT, Principal Bench, New Delhi on behalf of the Applicant in a case against the Union of India seeking adjournment of the case.
(D.K. Sharma) Under Secretary to the Government of India Shri T.R. Mohanty DDG(RPU), CSO, MOSPI, West Block-8, Wingh-6, R.K. Puram, New Dehi-110066.
Applicant being a Joint Secretary level officer responded to the said letter on 02.05.2012 informing the Respondent No.4 that he was entitled to a reply only if the rules so provide. He has also requested the Respondent No.4 that in future when he sends any communication to him needing a reply from him, he should make it clear in the said communication that the same has the express approval of the competent authority and that no unauthorized person has dealt with the file. In our considered view, in a bureaucratic set up, the principle that the senior officers shall be respected by the junior officials need not be re-emphasized. When Shri D.K. Sharma, Under Secretary was calling the explanation from the Applicant who is a Joint Secretary level officer, he should have shown the minimum courtesy by indicating in his aforesaid letter that it was being issued with the approval of the Competent Authority. Instead of informing the Applicant that the aforesaid letter was issued to him with the consent of higher officials, the Respondent No.4 prepared the draft minor penalty charge sheet against the Applicant and submitted for the approval of the Minister. However, the concerned Joint Secretary had his doubt whether the alleged act on the part of the Applicant was a misconduct and wanted to seek the advice of the Department of Personnel and Training. Thereafter, the Respondent No.4-Under Secretary framed the following specific misconduct on the part of the Applicant for the advice of the DOP&T:-
(i) Appearance of Shri T.R. Mohanty, DDG in CAT on 11.4.2012 on behalf of the applicant and against UOI in a case in which he is not a party.
(ii) Appearing in CAT on behalf of other applicant on 11.4.2012 without any leave or permission thus absenting/deserting his post unauthorisedly.
The Respondent No.4 again suppressed the fact that the Applicants alleged appearance before this Tribunal was only to inform that his college Shri E. Nagachandran could not be present in the court as his wife was unwell. However, the DOP&T, without any application of mind advised the Respondents that the Applicant has violated the G.I. Dept. of Per. & A.R., U.O. No. D-207/74-Ests.(A) dated 15th January, 1974. They have also stated in their note that violation of the aforesaid instructions by an officer holding such a high post and appearing in a case on behalf of an individual against the Union of India is not only a gross violation of instructions and grave misconduct but also a case of impropriety, indiscipline and violation of decorum. The said note reads as under:-
(12) Permission to enrol with the Bar Association. It is clarified that the Government servant can be permitted to enrol himself as an Advocate, but should not engage himself in the legal profession either independently or otherwise for so long as he continues in Government service.
Even after the DOP&T advised that act on the part of the Applicant was a grave misconduct, the Respondent No.4 still submitted a note that the earlier proposal for initiation of minor penalty proceedings against the Applicant was to be reconsidered. The Joint Secretary concerned also highlighted the advice of the DOP&T that the violation of the aforesaid instruction is a grave misconduct, but again recommended for taking only minor penalty proceedings against the Applicant and the Honble Minister appended his signature in approval of the draft charges. We are of the considered view that the officials in the Respondent-Department misguided the Minister-in-Charge in getting the draft charge approved. The advice of the DOP&T that the Applicant violated their instructions regarding permission to enrol with the Bar Association was factually incorrect. He has neither enrolled as a member of the Bar Council nor engaged himself in the legal profession. In our considered view, as observed earlier, the alleged misconduct on the part of the Applicant is too trivial and in the ordinary course, it would not have been considered as a misconduct at all. From the Respondents file it is seen that the decision to hold minor penalty proceedings against the Applicant is not out of any genuine or sincere intention of the Respondents to maintain discipline. We are also of the view that the Respondents are misusing the provisions contained in Rule 16 of CCS (CCA) Rules, 1965 to initiate minor penalty proceedings as the said procedure does not provide for any detailed enquiry subjecting the prosecution witness to be cross examined and thus the truth is brought out. The only purpose discernible was that to keep the Applicant under the cloud of a departmental proceeding.
28. We, therefore, allow this OA and quash and set aside the impugned minor penalty charge sheet dated 10.09.2012 with all consequential benefits. The Respondents shall also pass appropriate orders in compliance with the aforesaid directions, within a period of 2 months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh