Central Administrative Tribunal - Madras
J Anandakumar vs M/O Health And Family Welfare on 3 April, 2024
1 OA No. 847/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00847/2016
rd
Dated this, the 3 day of April, Two Thousand & Twenty four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
HON'BLE MR.M. SWAMINATHAN, Member (J)
J.Ananda Kumar, S/o. P. Jeyaraj,
Aged about 42 years,
Residing at No. 1, Sathya Nagar,
Ramapuram Road,
Chennai 89. .....Applicant
By Advocate M/s. Giridhar & Sai
Vs.
1.Union of India,
Rep. by the Secretary to Government,
Ministry of Health & Family Welfare,
Department of Health Research,
Indian Council of Medical Research,
V.Ramalingaswami Bhawan,
Post Box No. 4911, Ansari Nagar,
New Delhi 110029.
2.The Director General,
Indian Council of Medical Research,
V.Ramalingaswami Bhawan,
Post Box No. 4911, Ansari Nagar,
New Delhi 110029.
3.The Director,
National Institute for Research in Tuberculosis,
Indian Council of Medical Research,
2 OA No. 847/2016
Department of Health Research,
No.1, Sathyamoorthy Road,
Chetpet, Chennai 600031. ....Respondents
By Advocates Dr. K. Kannan (R1) &
Mr. M. Kishore Kumar, SPC (R2 & R3)
3 OA No. 847/2016
ORDER
(Pronounced by Hon'ble Mr.Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
"i. To call for records relating to order dated 13.04.2015 passed by rd the 3 Respondent vide NIRT/Admn/ICMR Vig-27 (2010)/2014-15/206 and quash the same;
ii. To call for records relating to order dated 29.01.2016 passed by the 1st Respondent vide No. F. No. 69/100/2015-ECD.I-ICMR and quash the same;
iii. To call for records relating to order dated 18.03.2016 passed by the 2 nd Respondent vide No. 270/Legal Cell/2016 and quash the same; iv. To reinstate the Applicant into service w.e.f. 13.04.2015 with arrears of pay and allowances and all other consequential benefits; v. To award costs and pass such further and other orders as may be deemed and proper and thus render justice."
2. The facts of the case, as given by the Applicant, are summarised hereunder:-
2.1. The Applicant was initially appointed as Lower Division Clerk (LDC) in February, 2005. He was then promoted to the post of Upper Division Clerk (UDC) during the year 2012.4 OA No. 847/2016
2.2. During the year 2009, when the Applicant went to Egmore Railway Station, Chennai, for booking railway tickets, he met one Mr. Ganapathy, who introduced himself as an agent for booking railway tickets. The Applicant would book tickets for his colleagues and other staff through the agent, Mr. Ganapathy. Further, the Applicant used to fill in the LTC application forms for some staff working along with him as they were not aware of the procedure for claiming LTC and to fill up the forms. 2.3. During the year 2010, the Applicant decided to travel to Rohtang Pass, Manali, along with his family members. The Applicant booked air tickets on 21.01.2010 from the Indigo Airlines for the travel scheduled on 01.05.2010 from Chennai to Delhi. As the total amount for the package for travel between Manali and Rohtang Pass through the H. P. Tourism Development Corporation was Rs. 750/- only, the Applicant booked it on 02.02.2010 itself. The Applicant booked tickets for return journey from Manali to Delhi on 02.02.2010. On 03.02.2010, after arranging cash, the Applicant booked tickets for onward journey from Delhi to Manali through H.P. Tourism Development Corporation. Thereafter, on 20.02.2010, the Applicant booked flight tickets of Indigo airlines for return journey from Delhi to Chennai on 09.05.2010, as no tickets were available immediately after 05.05.2010.5 OA No. 847/2016
2.4. As the Applicant was informed that he was not eligible for flight travel under LTC, he booked train tickets for onward and return journey between Chennai and Delhi through the agent, Mr. Ganapathy, for the purpose of availing LTC. As per the tour plan, the Applicant and his family members travelled to Rohtang Pass and returned to Chennai on 09.05.2010.
He then submitted his LTC claim application with the train tickets booked by him through the agent and the bus tickets booked by him through H.P. Tourism Development Corporation, claiming a sum of Rs. 17055/-. The Applicant has stated that, actually, he incurred an expenditure of Rs. 25,728/- for booking air tickets and Rs. 6750/- for booking bus tickets, totally amounting to a sum of Rs. 32,478/-. As he had submitted his claim with train tickets, he had claimed a sum of Rs. 17055/- only. However, a sum of Rs. 17015/- only was sanctioned and the said amount was deposited in the Applicant's bank account on 08.07.2010.
2.5. The Applicant was shocked to know that he was alleged to have claimed LTC by submitting bogus railway e-tickets and has also induced other staff members to apply for LTC with fabricated and bogus railway e- tickets. The Applicant had informed the above facts before the Enquiry Committee and denied all the allegations made against him. However, by order, dated 01.07.2014, he was placed under suspension. He was issued 6 OA No. 847/2016 with a charge memo, dated 05.09.2014 (Annexure A- 3) after a lapse of four long years, with the following charges:-
Article I That the said Mr. J. Anandakumar (presently under suspension) while functioning as LDC and as UDC in NIRT, had in connivance with other officials of NIRT, fabricated the railways IRCTC and prepared bogus railway e-tickets with fake PNR numbers.
Article II That the said Mr. Anandakumar while functioning as LDC and as UDC had in connivance with other officials of NIRT, had distributed and sold the bogus railway e-tickets with fake PNR numbers fabricated and prepared by him, to many NIRT and NIRT Epid Unit staff members, for wrongful personal financial gains, by illegal acts and means. Article III That the said Mr. J. Anandakumar while functioning as LDC and as UDC, induced many staff members of NIRT and NIRT Epid unit to apply and claim LTC in a fraudulent manner, with the bogus railway e-tickets with fake PNR numbers fabricated and issued by him and assured the staff members that he would pass all the claims without any deduction. Article IV That the said Mr. J. Anandakumar while functioning as LDC, had applied for LTC and got sanction from competent authority, but not travelled on LTC and he himself had claimed fraudulent LTC claim by submitting the bogus fabricated railway e-tickets with fake PNR numbers and received an amount of Rs. 17,055/- from this office and misappropriated Government money.
Article V That the said Mr. J. Anandakumar with the connivance of other officers deliberately and willfully admitted the fraudulent LTC claim bills of many staff members with the bogus railway e-tickets with fake PNR numbers, fabricated and issued by him and his group and caused huge financial loss to ICMR and pecuniary loss to the Government of India. Article VI 7 OA No. 847/2016 That the said Mr. J. Anandakumar willfully suppressed the facts about the bogus railway e-tickets with fake PNR numbers fabricated and issued by him and given contradictory statements and influenced many staff members, not to reveal his name during the course of preliminary enquiry conducted by the enquiry committee. Also he has stated during the enquiry that bogus LTC claim bills are admitted during the period of earlier Sr. A.O. Mr. M. Subramanian itself and having known this he has not revealed the same to the higher authorities immediately during that period itself and suppressed the fact.
The Applicant denied all the charges made against him. 2.6. However, he has admitted the following :-
2.6.1. The Applicant merely made arrangement to book railway tickets through the agent, Mr. Ganapathy, and he was not aware that the tickets were bogus.
2.6.2. The Applicant made arrangement for booking tickets for them through the agent, Mr. Ganapathy. The Applicant received only the agent commission for booking the tickets and he never received any amount for himself.
2.6.3. He booked railway tickets through the agent and submitted the same for claiming LTC.
2.7. The Applicant did not have sufficient proof to show that fraudulent LTC claims were admitted during the tenure of Mr. M. Subramanian, Sr. A.O., and, therefore, he was not able to communicate about this to his higher authorities.8 OA No. 847/2016
2.8. The Inquiry Officer submitted his report on 09.02.2015, (Annexure A-
6). According to the Applicant, the IO observed that there is no evidence against the Applicant to prove the charges, but still held that the charges are proved. This is arbitrary and irrational. It is pertinent to state that from the very beginning, the Inquiry Officer and the Disciplinary Authority have been biased towards the Applicant. The Applicant has alleged that the Inquiry Officer has failed to furnish the preliminary inquiry report and the statement of the Applicant during the preliminary inquiry. Further, the Applicant was not afforded an opportunity to engage a defence assistant. Hence, the inquiry is vitiated on this ground alone. The Applicant submitted a detailed reply, dated 09.03.2015 (Annexure A-7), denying all the charges levelled against him and pointing out the irregularities in the inquiry. 2.9. However, the 3rd Respondent, viz., the Director, National Institute for Research in Tuberculosis, ICMR, passed an order, dated 13.04.2015, (Annexure A-8) removing the Applicant from service. The 3rd Respondent failed to consider the grounds and objections raised by the Applicant Further, in the case of one Mr. Anbulingam, against whom the same set of charges were framed, was imposed a penalty of reduction to lower post for a period of three years, by order, dated 13/21.04.2015 (Annexure A-9). Also, more than 100 staff members, who were also involved in the LTC scam, 9 OA No. 847/2016 were imposed a penalty of stoppage of three increments and recovery of LTC claim amount with penal interest. But, in the case of the Applicant, the disciplinary authority has been discriminatory. The penalty imposed by the disciplinary authority is disproportionate to the charges framed. 2.10. The Applicant filed O.A. No. 251 of 2016 seeking a direction to pass orders on his appeal, dated 11.05.2015. By an order, dated 16.02.2016 (AnnexureA-11), this Tribunal passed an order directing the 2nd Respondent to pass orders on the Applicant's appeal within a period of one month. 2.11. In the meantime, the 2nd Respondent had forwarded the Applicant's appeal, dated 11.05.2015, to the Union Minister of Health and Family Welfare, as the Disciplinary Authority, who had passed the order, dated 13.04.2015, had been promoted to the post of Director General and had become the Appellate authority, in this case. The Union Minister of Health and Family Welfare, in the file note, dated 29.01.2016 (Annexure A- 12), rejected the Applicant's appeal, without citing any reasons. The applicant has contended that the entire copy of the file note, dated 29.01.2016, has not been furnished to the Applicant till date and only page no. 12 was furnished to him. This is arbitrary and illegal. Thereafter, by order, dated 18.03.2016, (Annexure A-13), the 2nd Respondent passed an order, dated 18.03.2016, 10 OA No. 847/2016 titled as speaking order which was communicated to the Applicant, vide order, dated 21.03.2016 (Annexure A-14).
2.12. It is alleged that the Appellate Authority had failed to appreciate that there is no evidence to prove the charges against the Applicant, which the Inquiry Officer himself has admitted in his inquiry report. Further, the 2nd Respondent, who had acted as the Disciplinary Authority, has passed the speaking order in the capacity of the Appellate Authority and, hence, the same is vitiated. Moreover, the 2nd Respondent has failed to consider the grounds and objections raised by the Applicant and has merely denied them without citing any reasons which is arbitrary and unreasonable. 2.13. Aggrieved, the applicant has filed this OA.
3. The main grounds urged by the applicant, among others, are as follows :-
3.1. The impugned orders, dated 13.04.2015, passed by the 3rd Respondent removing the Applicant from service, dt.29.01.2016, passed by the 1st Respondent, rejecting the Applicant's appeal and the speaking order, dated 18.03.2016, passed by the 2nd Respondent, are arbitrary and unreasonable and, hence, violative of the Applicant's rights under Articles 14, 16 and 21 of the Constitution.11 OA No. 847/2016
3.2. The charge memo has been issued after a long lapse of four years, thus, prejudicing the case of the Applicant, as he was unable to recall the incident and, more particularly, trace and produce the agent who booked all the railway e-tickets.
3.3. The 2nd Respondent herself has acted as Disciplinary Authority during the departmental inquiry and, hence, the impugned order, dated 18.03.2016, is arbitrary and illegal.
3.4. The Applicant was not permitted to engage a defence assistant on his behalf, thus, depriving the Applicant of his opportunity to effectively defend his case in the inquiry. The Applicant has also not been served with a copy of the preliminary inquiry report and the statement of the Applicant in the preliminary inquiry, despite several requests. Hence, the entire inquiry proceedings are vitiated.
3.5. The inquiry officer himself has observed that there is no evidence against the Applicant to prove the charges leveled against him. In these circumstances, holding the charges as proved is arbitrary and irrational.
Thus, the findings of the inquiry officer are perverse. 3.6. The impugned order, dated 13.04.2015, passed by the Disciplinary Authority, imposing the penalty of removal from service, is disproportionate to the charges framed.
12 OA No. 847/20163.7. In the case of one Mr. Anbulingam, against whom similar set of charges were framed, was imposed a penalty of reduction to lower post for a period of three years. Also, several other staff members (more than 100 staff members) who were involved in the LTC scam were imposed a penalty of stoppage of three increments and recovery of the LTC claim amount with penal interest. But, in the case of the Applicant, who is a similarly placed employee, he was imposed the penalty of removal from service, which is arbitrary and discriminatory.
3.8. It is submitted that the order, dated 13.04.2015, passed by the Disciplinary Authority and the order, dated 29.01.2016, passed by the Union Minister for Health & Family Welfare, are not reasoned and speaking orders and, hence, not sustainable in law. The Disciplinary Authority as well as the Appellate Authority failed to independently appreciate the evidence. 3.9. It is also submitted that the order, dated 18.03.2016, passed by the 2nd Respondent is a mere reproduction of the inquiry report and, hence, it suffers from non-application of mind, and, further, the impugned order, dated 18.03.2016, passed by the 2nd Respondent, is erroneous and is based on extraneous considerations.
4. The respondents have filed their reply opposing the relief prayed for by the applicant and have submitted that the OA is not maintainable either in 13 OA No. 847/2016 law or facts. In reply to the OA, the Respondents have made the following submissions while describing the contours of the LTC scam:-
4.1. The ICMR Headquarters, vide letter No. Vig/27/2010, dated 15.04.2011, had requested the Director-in-charge of the 3rd Respondent Institute to examine the complaint on fraudulent Railway tickets in the LTC bills, claimed by the staff of the TRC, Chennai, and also requested to submit the report to the CVO/Sr.DDG of the Council within 10 days. (Annexure R-
1) 4.2. A Committee was constituted by the Director-in-Charge and a report was submitted to the ICMR Head Quarters, on 31.05.2011 (Annexure R-2).
Again, in the year 2013, the SAO (Vigilance) of the ICMR Headquarters, vide letter No. Vig/27/2010, dated 29.05.2013, requested the then Director to verify all the LTC tickets from railway authorities and to intimate the outcome of the case (Annexure R- 3). In compliance with the said letter, the Railway tickets were sent for verification to the railway authorities and an interim report was submitted to the ICMR Headquarters about the same. 4.3. The Railways, vide letter No.C268/II/LTC/2013/Vol.IV/47, dated 19.03.2014, informed that the tickets were mismatching with the names given in the system records and the PNRs were not available in the system 14 OA No. 847/2016 records. In addition to the fake PNR numbers, different persons were found to have travelled on a totally different leg of journey. 4.4. A Committee was constituted by an order, dated 24.03.2014, by the then Director to enquire into the false LTC bills.
4.5. On the basis of the Preliminary Enquiry, the applicant was placed under suspension, vide order, dated 01.07.2014 and, subsequently, the charge memo, dated 05.09.2014, was issued. The Committee, after reviewing the charge sheets issued and the replies received, recommended, by its proceedings, dated 19.09.2014, that a full-fledged Departmental Enquiry be conducted. It has been pointed out that the applicant also gave a letter, dated 29.09.2014, addressed to the Director, admitting his mistake, by stating that he had no intention to misappropriate Government money and requested the Director to excuse him for his attitude of deviating from his responsibility and, further, requested to apologize for the first and last unlawful incident and he stated that he was ready to endure any penalty (emphasis added). The same is marked as Annexure R-10. Thereafter, the regular enquiry was conducted.
4.6. At the commencement of the inquiry proceedings, a specific question was put to the applicant by the Inquiry Officer for having a Defence Assistant. However, the applicant had not chosen to go for any Defence 15 OA No. 847/2016 Assistant, and he himself had actively participated in the inquiry by duly cross-examining the witnesses. According to the Respondents, having participated in the enquiry proceedings, it is not open for the applicant to raise the contention at this point of time. The applicant did not cite any defense documents nor produce any witnesses. The question of not providing any defense assistant also does not arise.
4.7. After a detailed enquiry, the Inquiry Officer submitted his report on 23.01.2015, duly proving all the charges levelled against the applicant. Based on the enquiry report, the then Disciplinary Authority afforded a personal hearing to the applicant. The applicant denied all the charges in the personal hearing, by submitting his explanation. The disciplinary authority, after taking into consideration the enquiry report and the explanation of the applicant, imposed the penalty of removal from service on the applicant, by an order, dated 13.04.2015. It is further submitted that the appeal preferred by the applicant was also rejected by an order, dated 18.03.2016. 4.8. The actions and conduct of the applicant clearly proved the fraud played on the department. The applicant admitted that he had submitted cancelled train tickets for claiming LTC. It would be worthwhile to state that, on enquiry with the railways, even the train tickets submitted by him 16 OA No. 847/2016 carried fake PNR numbers and also carried different names and different leg of journey, as given below:-
PNR Name of Date Date of From To
No.Submitted the Journey of Journey as per
by the Passenger as given by the service
applicant in his Actually the records
LTC claim travelled Railways
2402927403 Gopal 22.02.2010 30.04.2010 Delhi Jammu
Singh Tawi
2403125893 Alok 09.02.2010 08.05.2010 Lucknow Varanasi
Srivastava
4.9. The respondents further submitted that:-
(i) The applicant admitted that he himself had cancelled the booked train
tickets.
(ii) The submitted tickets for claiming LTC are of a different leg of
journey.
(iii) The tickets submitted for claiming LTC are fabricated as the PNR numbers do not match with the leg of journey.
(iv) The name of the actual traveller is different from that of the applicant.
(v) The date of the ticket submitted for LTC did not tally. Hence, it was proved beyond doubt that fabricated tickets were submitted by him for claiming LTC.
4.10. The respondents submit that the applicant himself had fabricated the e- tickets with fake PNR numbers, not only for himself but also for certain 17 OA No. 847/2016 other members of staff, who had approached him, by creating a template and using the computer in the stores of the respondent's office. 4.11. In respect of the contention that he had travelled to Rohtang Pass along with his family members and filing of photographs as Annexure A-4, it is submitted by the Respondents that the photographs are shown now only before this Tribunal. Hence, the authenticity of the same should be rejected. 4.12. The Disciplinary Authority, by taking note of the enquiry report and the seriousness of the role played by the applicant in respect of the fabrication of railway tickets, had passed the order of his removal from service. Therefore, the comparison with other charged persons, in respect of the punishment, would not arise at all. It is further submitted that there is no equality in illegality and, as such, there is no discrimination meted out to the applicant. Hence, the allegation of discrimination is specifically denied. Further, the removal from service of the applicant is an appropriate punishment in view of the role played by the applicant which is evident from the enquiry report. It is submitted that applicant's role is of a mastermind in fabricating and creating the bogus tickets. Therefore, the allegation that the penalty imposed by the disciplinary authority is disproportionate to the charges framed is legally untenable.
18 OA No. 847/20164.13. The allegation of the applicant that the file note, dated 29.01.2016, of the Union Minister for Health and Family Welfare, rejecting the appeal of the applicant without any reason, has been denied. It is submitted that in the file note it is clearly stated that after considering the facts and materials only the appeal was rejected. Hence, the allegation is baseless. 4.14. The Appellate Authority had independently considered the appeal in an elaborate manner and analysed all the aspects by giving sufficient reasons. Hence, the allegation that the untrustworthy statement of SW2 was relied upon is baseless and there is no contradiction in considering the evidence of the witnesses.
4.15. The other allegation of the applicant that the 2nd Respondent, who has acted as the Disciplinary Authority, has passed the speaking order in the capacity of an Appellate Authority and, hence, the same is vitiated is factually incorrect and legally untenable. The relevant portion of the Appeal order, dated 18.03.2016, is given as follows:-
"4. It is pertinent to mention here that Dr. Soumya Swaminathan, Director General had awarded the major penalty to the appellant Shri. J. Anand Kumar while she was functioning as Director, NIRT, Chennai, and Disciplinary Authority. Hence, Dr.Soumya Swaminathan, DG, ICMR and Appellate Authority, had recused herself from entertaining the appeal of Shri Anand Kumar as per the provisions contained under Rule-24 (ii) of CCS (CCA) Rules, 1965 as given under:19 OA No. 847/2016
"Where the person who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise, the Appellate Authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate."
4.16. Respondents have denied the allegations of the applicant and asserted that the orders were passed in conformity with the provisions of the departmental procedure and in consonance with the CCS (CCA) Rules, 1965, and the principles of natural justice and, as such, there is no arbitrariness and unreasonableness and, further, there is no violation of Articles 14, 16 and 21 of the Constitution of India.
4.17. It is submitted that the charges framed against the applicant have been proved beyond the preponderance of probabilities, by conclusive and positive evidence, after conducting a detailed enquiry. 4.18. The contention that the charge memo has been issued after a lapse of four years due to which the applicant was unable to recall the incident and, more particularly, trace and produce Mr. Ganapathy, the agent who booked all the railway e-tickets, resulting in prejudicing to the applicant's case, is devoid of any merit, since the applicant was given full opportunity and he had duly participated in the enquiry. Further, the agent's name has been brought in only as an afterthought to rebut the charges. It is further submitted that, in view of the seriousness of the matter, the SAO (Vigilance) of the ICMR Hqrs, vide letters, dated 15.04.2011 and 29.05.2013, also 20 OA No. 847/2016 requested to look into the complaint of fraudulent Railway tickets in the LTC bills claimed, and, based on the report of the Railways, a Committee was constituted and a preliminary enquiry was conducted. Hence, there is no delay in initiating the charges.
4.19. The contention raised that the entire inquiry proceedings is vitiated since the applicant has not been served with a copy of the preliminary inquiry report and the statement of the applicant in the preliminary inquiry, despite several requests, is legally untenable and the applicant is not entitled, as a matter of right, to the preliminary inquiry report. Further, the applicant had duly participated in the enquiry proceedings and, as such, the enquiry proceedings are legally valid. The applicant has chosen to compare the statement of the witnesses in the preliminary enquiry and in the course of the enquiry proceedings, pursuant to the charge memo, in his reply to the enquiry report.
4.20. The findings of the Enquiry Officer are based on the documentary and oral evidence and in consonance with the well-established principles of Departmental Enquiry.
4.21. Accordingly, the respondents have prayed for dismissal of the OA. 4.22. The applicant has filed a rejoinder contesting the reply statement filed by the respondents.
21 OA No. 847/2016
5. Heard both the sides and perused the records.
6.1. Learned counsel for the applicant has filed his written submissions. It is argued that the 3rd respondent has not stated on what grounds the applicant alone should be imposed the punishment of removal from service and not a lesser punishment. There is complete non-application of mind on the quantum of punishment.
6.2. The punishment of removal from service imposed on the applicant is discriminatory in comparison to the punishment of reduction to lower grade imposed on Anbulingham, who was charged with more serious misconduct.
7. Learned counsel for the applicant has placed reliance upon the following judgments :-
i. Judgment, dt. 23.05.2006, of the Hon'ble Supreme Court, in Civil Appeal No. 6979 of 2004, in the case of Director (Marketing), Indian Oil Corpn. Ltd. and anr. Vs. Santosh Kumar, (2006) 11 SCC 147; ii. Judgment, dt. 15.02.2018, of the Hon'ble Supreme Court, in Civil Appeal No. 2693 of 2013, in the case of UCO Bank and ors. Vs. Rajendra Shankar Shukla, (2018) 14 SCC 92;22 OA No. 847/2016
iii. Judgment, dt. 15.09.2011, of the Hon'ble Supreme Court, in Civil Appeals Nos. 7864-65 of 2011, in the case of Anil Gilurker Vs. Bilaspur Raipur Kshetriya Gramin Bank and anr., (2011) 14 SCC 379; iv. Judgment, dt. 15.05.2015, of the Hon'ble Supreme Court, in Civil Appeal No. 4467 of 2015, in the case of Bilaspur Raipur Kshetriya Gramin Bank and anr. Vs. Madanlal Tandon, (2015) 8 SCC 491; v. Judgment, dt. 19.12.2008, of the Hon'ble Supreme Court, in Civil Appeal No. 7431 of 2008, in the case of Roop Singh Negi Vs. Punjab National Bank and ors., (2009) 2 SCC 570;
vi. Judgment, dt. 10.12.2018, of the Hon'ble Supreme Court, in Civil Appeal No. 6886 of 2014, in the case of Jaswant Singh Vs. Union of India and anr., (2019) 2 SCC 360;
vii. Judgment, dt. 01.10.1993, of the Hon'ble Supreme Court, in Civil Appeal No. 3056 of 1991 with SLP (Civil) Nos. 4273 of 1986 and batch, in the case of Managing Director, ECIL, Hyderabad and ors. Vs. Karunakar and ors., (1993) 4 SCC 727.
8. Learned counsel for the respondents has relied upon the following judgments in support of his contentions :-
23 OA No. 847/2016
i. Judgment, dt. 10.09.2020, of the Hon'ble Supreme Court, in Civil Appeal No. 6270 of 2012, in the case of Pravin Kumar Vs. Union of India and ors.;
ii. Judgment, dt. 25.11.2020, of the Hon'ble Supreme Court, in Civil Appeal No. 3820 of 2020, in the case of Director General of Police, Railway Protection Force and ors. Vs. Rajendra Kumar Dubey; iii. Judgment, dt. 23.09.2022, of the Hon'ble Supreme Court, in Civil Appeal No. 6776 of 2022, in the case of The Inspector of Panchayats and District Collector, Salem Vs. S. Arichandran & Ors; iv. Judgment, dt. 20.04.2022, of the Hon'ble Supreme Court, in Civil Appeal No. 2707 of 2022, in the case of Anil Kumar Upadhyay Vs. The Director General, SSC and ors., 2022 LiveLaw (SC) 392; v. Judgment, dt. 23.11.2022, of the Hon'ble Supreme Court, in Civil Appeals Nos. 7939-7940 of 2022 and batch, in the case of Union of India and ors. Vs. Subrata Nath, 2022 LiveLaw (SC) 998;
vi. Judgment, dt. 17.05.2023, of the Hon'ble Supreme Court, in Civil Appeal No. 3663 of 2023, in the case of The Indian Oil Corporation &Ors. Vs. Ajit Kumar Singh &anr., 2023 LiveLaw (SC) 478; 24 OA No. 847/2016 vii. Judgment, dt. 24.08.2023, of the Hon'ble Supreme Court, in Civil Appeal No. 11196 of 2011, in the case of State Bank of India Vs. A.G.D.Reddy 2023 LiveLaw (SC) 719;
viii. Judgment, dt. 14.02.2020, of the Hon'ble Supreme Court, in Civil Appeal No. 8071 of 2014, in the case of The State of Karnataka & Anr Vs. N. Gangaraj;
ix. Judgment, dt. 18.12.2019, of the Hon'ble Supreme Court, in Civil Appeal No. 9520 of 2019, in the case of Uttarakhand Transport Corporation & Ors. Vs. Heera Singh Parihar;
x. Judgment, dt. 28.03.2023, of the Hon'ble Supreme Court, in Special Leave to Appeal (C) No. 27633 of 2017, in the case of Sunil Kumar Soni Vs. State of Rajasthan and ors 2023 LiveLaw (SC) 271; xi. Judgment, dt. 17.05.2023, of the Hon'ble Rajasthan High Court, in S.B.Civil Writ Petition No. 2346/2015, in the case of Shivam Sharma Vs. Rajasthan Rajya Vidyut Prasaran Nigam Ltd and ors, 2023/RJJP/009925.
9. It is evident from the records that the ICMR Hqrs./Vigilance Wing of the concerned organization has collected the relevant material from the Railways and two Committees have gone into the whole issue of organized 25 OA No. 847/2016 racket involving false claims of LTC by a large number of employees. The applicant has been issued the charge memo on receipt of the report of the Enquiry Committee. Contrary to the submission of the applicant, the charges are found to be specific and based on oral and documentary evidence. The observations of the Enquiry Officer clearly express his consternation over the magnitude of the scam. Reports of the two Committees are an eye- opener as to how, despite all red flags, so many false claims were entertained and so many claimants could continue to operate with impunity for so long. No doubt, there is good ground to go to the root of the issue and make an example of each person involved in ignoring or promoting fraud at such a scale, causing immense financial loss to the government.
10. We find no infirmity in the proceedings against the applicant who is fully aware of his culpability. He has submitted his admission in clear terms, vide his letter, dt. 29.09.2014 ( Annexure R-10), addressed to Dr. Soumya Swaminathan, Director, National Institute of Research in Tuberculosis, the contents of which are extracted below :-
" I am writing this letter with great pain in my heart. It is known to you that a disciplinary proceeding was conducted against me and in the finality I am being suspended vide order referred above. My ignorance and innocence of the conduct rules have resulted in my suspension.
After my suspension, a charge sheet has been issued to me from the office administration. According to that charge sheet, I have given my 26 OA No. 847/2016 reply to the best of my morality and which has to been known to my knowledge and to defend me from the same.
Madam, I hereby submitting the statement that I had committed this mistake without any intention to misappropriate the Government money. I have suffered maximum discomfort during my suspension period along with my family.
I state that I am the sole bread-winner of the family, which consists of my unemployed wife, two small children's aged about 11 and 7 years. Due to my suspension my family gets disturbed and i could not concentrate. along with my family day to day needs and in my children's studies too.
Madam, I regret the inconvenience caused on my behalf and kindly excuse me this attitude of deviating from my responsibility.
Since I honestly feel disgusting that I have lost the peacefulness of my family, I request you to kindly apologize me for this first & last unlawful incident and i am ready to endure any penalty as per your discretion.
In the said facts and circumstances and my pathetic situation I request your goodself to kindly consider and revoke the order of suspension and reinstate me to continue my sincere work in the services.
Thanking you and awaiting for favourable orders; "
11. The only issue that lends itself to scrutiny now is whether the Applicant has been singled out for discriminatory treatment. If it is so, judicial intervention would be justified. The other big time operator, according to the applicant, is one Anbulingam. Both the Applicant and Sh. Anbulingam were dealt on similar charges. Several co-employees have held Shri. Anbulingam responsible, in one way or the other, for preparing or submitting fraudulent LTC claims. The following punishment was awarded to him, vide order, dt. 13/21.04.2015 :
27 OA No. 847/2016
"The undersigned hereby imposes the penalty of reduction to the lower post of Technician-A (E/S) w.e.f. 15.04.2015, until he is found fit, after a period of 3 years from the date of this order to be restored to the higher post of Technician-B (E/S). Accordingly, the above said penalty is hereby imposed on Shri. R.Anbulingam, Technician B(E/S).
Further the period of reduction will also operate to postpone his future increments in the time scale of his original post, on his restoration to that post.
He shall on his re-promotion to his original post shall regain his original seniority in the higher post of Technician-B (E/S) which has been assigned to him prior to the imposition of the penalty."
Whereas, the applicant was awarded the following punishment, vide order, dt. 13.04.2015;
"The undersigned hereby removes the said Shri. J. Ananda Kumar, UDC from service with immediate effect. Accordingly, the above said penalty is hereby imposed on Shri. J. Ananda Kumar, UDC."
12. Illegality committed by other person(s) cannot be ground to absolve the applicant of his liability for defrauding the department. However, we would like to follow ratio of the order of the Hon'ble Supreme Court, in the case of Sengara Singh Vs. State of Punjab (1984 1 LLJ 161), wherein the Hon'ble Supreme Court has held that, "the action taken by the Government is violative of Article 14 of the Constitution, i.e., any arbitrary action taken which would tantamount to the denial of equity is violative of Article 14 of the Constitution."
13. This Tribunal, in OA No. 410/2016, in the case of K.M.Vedapuri Vs. Union of India, rep by the Secretary, Ministry of Water Resources and ors, had dealt the issue of "discrimination in service matters" and, vide order, dt. 04.01.2024, it was observed as below :-
28 OA No. 847/2016
"......
26. The role of enquiry officers and the competence of the Disciplinary Authority and the Revisionary Authority is not in question. However, the remarks of the Disciplinary Authority that "the outcome of different Disciplinary Authorities taking different decisions in regard to the quantum of punishment based on their findings etc., response shown by individual officers to the instructions of the Government of India"
has been taken note of by this Tribunal, in its order, dated 25.01.2000, in OA numbers 264 & 265 of 1998. The Tribunal had remitted back the impugned orders to the Disciplinary Authority for dealing with the case afresh under specific directions that "the Disciplinary Authority shall give a fresh notice to the applicants showing clearly the reasons for differing from the enquiry officer's report and after receiving the reply from the applicants, the Disciplinary Authority can pass an order afresh. In doing so, the Disciplinary Authority is expected to deal with the case of other 21 officers and how the case of the applicants are different from that of the other 21 officers."(emphasis added)
27. The Tribunal also referred to its earlier findings that the question of Article 14 has to be considered as in the case decided by the Supreme Court in Sengara Singh Vs. State of Punjab (1984 1 LLJ 161). Wherein it was held that "the action taken by the Government is violative of Article 14 of the Constitution i.e., any arbitrary action taken which would tantamount to the denial of equity is violative of Article 14 of the Constitution."
......
35. This Tribunal and the Hon'ble High Court have already come down heavily on the point of discrimination and it was specifically directed to state the reasons for considering the case of the official differently from those of similarly placed officials. This aspect has not been satisfactorily answered by the respondents. The list of 21 officers annexed by the applicant clearly shows that one R. M. Joshi had also overstayed unauthorisedly in Algeria like the applicant. For both the officials, the period of unauthorised absence was declared as dies non. Shri. R. M. Joshi was also awarded 'Censure'. There are other glaring cases of this nature in the list. Dies non is the reason given by the Department in the communication, dated 30.07.2014, to the applicant, for not counting the said period "for regular service to be considered for 29 OA No. 847/2016 promotion". On the other hand, Shri. R. M. Joshi got his promotions and the consequential financial benefits. Shri. Joshi took voluntary retirement in April, 2003, as Scientist 'C'. The requisite period of three months' notice in this regard was waived for Shri. R. M. Joshi."
14. Relevant paras of the inquiry report on false LTC claims, submitted on 23.06.2014, by Dr. P. Selvaraj, Chairman, Enquiry Committee, which are relevant to the Applicant and Sh. Anbulingam, are extracted below :-
"9. The committee is of strong opinion that the persons listed in point No.4, Mr.J.Ananda Kumar, UDC and Mr.R.Anbulingan, Technician 'B' who are involved in preparation and selling of fraudulent LTC train tickets which amounts to a major crime as per CCS conduct rules 1965 should be treated at par with the major crime and action may be initiated as per conduct rules. Further these two charged officials Mr.J.Ananda Kumar, UDC and Mr.R.Anbulingan, Technician 'B' should not be assigned any confidential work including finance related work until a decision taken against them as their presence could lead to destroy the evidences against them.
10. Further the committee is of opinion that the fraudulent LTC claim based on railway e- tickets started during 2009-2010 and it seems to be escalated during 2011, 2012 and 2013 which requires further investigation. Also during enquiry it was stated by many of the charged officials that they made false claims prior to 2009 also.
11. The enquiry committee is of the opinion that strong preventive actions are needed to stop such kind of illegal activities in the institute in future. "
15. Copies of orders of penalty furnished by the learned counsel for respondents show that lenient view has been taken by the Disciplinary Authority in the cases of Mr. R. Hariharan, Mr. J. Selvam and others, despite the fact that they also had a role in such a well-organized racket. Reduction of pay without cumulative effect is found have been imposed along with 30 OA No. 847/2016 recovery of the amount involved in several cases. There seems to have been no termination of service for any of the wrongdoers.
16. Since none of the other delinquents have been removed from service, despite a series of similar acts on their part, it would be unfair if the applicant is treated differently, notwithstanding his major role in the fraud. We do not wish to prescribe the quantum of punishment. Without extending any other relief, as prayed for, we quash and set aside the orders, dt. 13.04.2015 and 18.03.2016, removing him from service and rejecting his appeal, respectively, and remand the matter back to the department. The disciplinary authority is free to impose any appropriate punishment, short of removal from service, as has been awarded by the Disciplinary Authority, to similarly placed employees, for their role in the LTC scam.
17. The OA is disposed of, accordingly.
18. No order as to costs.
(M.Swaminathan) (Varun Sindhu Kul Kaumudi)
Member (J) Member (A)
03.04.2024
SKSI