Central Administrative Tribunal - Chandigarh
Som Datt Zard Son Of Late Shri Girdari Lal vs Union Of India Through Its Secretary To ... on 27 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ORIGINAL APPLICATION N0. 061/00073/2015 Chandigarh, this the 27th day of January, 2017 CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) & HONBLE SMT. RAJWANT SANDHU, MEMBER A) Som Datt Zard son of late Shri Girdari Lal, District Youth Coordinator Kathua ( J & K) and resident of H. NO. 1245, Sector 6, Nanak Nagar, Jammu ( J & K). .APPLICANT (Argued by: Shri Harinder Sharma , Advocate) VERSUS 1. Union of India through its Secretary to Government of India, Ministry of Youth Affairs and Sports, Shastri Bhawan, C-Wing, New Delhi. 2. Chairman, Board of Governing Body, Nehru Yuva Kendra Sangathan, 2nd Floor, CORE -4, Scope Minar, Laxmi Nagar, Vikas Marg, Delhi-110092 3. Nehru Yuva Kendra Sangathan, through its Director General 2nd Floor, CORE-4, Scope Minar, Laxmi Nagar, Vikas Marg, Delhi-110092. 4. Zonal Director, Nehru Yuva Kendra Sangathan, Himachal Pradesh Zone, Chander Building, Toto, Shimla (HP). 5. Zonal Director, Nehru Yuva Kendra Sangathan, 39-A/C, Gandhi Nagar Hospital, Jammu ( J & K). .RESPONDENTS (By Advocate: Shri Ram Lal Gupta) ORDER (Oral)
JUSTICE M.S. SULLAR, MEMBER(J) The challenge in this Original Application (OA), filed by applicant, Som Dutt Zard, is to the impugned order dated 14.10.2014 ( Annexure A-1), whereby a penalty of withholding of 3 increments for a period of 3 years, with further direction not to earn increments of pay during the period of reduction and reduction will not have the effect of postponing his future increments of pay i.e. without cumulative effect and recovery of Rs. 6500/- from his salary, was imposed on him by the Competent Authority (CA) and order dated 6.4.2015 (Annexure A-2) vide which statutory appeal filed by him was dismissed as well by the Appellate Authority (AA).
2. The matrix of the facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy involved in the instant (OA), and exposited from the record, is that that the applicant was posted as District Youth Coordinator (DYC) in Nehru Yuva Kendra (NYK), Bilaspur. During the course of employment, he was stated to have committed some misconduct. As a consequences thereof, the impugned memorandum dated 3.5.2007 ( Annexure A-3) and following Articles of Chares were served on him.
ARTICLE I: Shri Som Datt Zard while working as DYC at NYK Bilaspur during the year 2006-07 was alleged to have made false complaint against the Zonal Director, NYKS, Himachal Pradesh. Thus he acted in a manner unbecoming of an officer of NYKS, thereby violated rule 3 (I) (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE II: Shri Som Datt Zard while working as DYC at NYK Bilaspur during the year 2006-07 was alleged to have collected Rs. 200/- per month from each trainee of the computer training programme organized by NYK Bilaspur under Special project of Ministry of Youth Affairs and Sports. Thus he failed to maintain the absolute integrity thereby violated rule 3 (I) (i) of CCS (Conduct) Rules 1964.
ARTICLE III: Shri Som Datt Zard while working as DYC at NYK Bilaspur during the year 2006-07 was alleged to have invited participants from 80 Youth Clubs/Mahila Mandals in the youth conference held at Kothipur and paid T.A. to the participants from 20 youth Clubs only. Thus he/acted in a manner unbecoming of an officer of NYKS thereby violated rule 3 (I)(iii) of the CCS (Conduct) Rules 1964.
3. In pursuance thereof, the applicant filed reply to the charge-sheet, denying all the allegations, which was considered unsatisfactory and the Competent Authority (CA) has decided to hold an inquiry against him under Rule 14 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as CCS (CCA) Rules, 1965 ).
4. The Enquiry Officer (EO) completed the inquiry and ultimately came to the definite conclusion that the charges served upon the applicant were not proved vide report dated 23/26.3.2009 ( Annexure A-4). The CA has accepted the findings of the IO vide order dated 29.01.2010 ( Annexure A-5).
5. The case set up by the applicant, in brief, insofar as, relevant is that he was served with another second impugned memorandum dated 31.3.2008 ( Annexure A-6) with the following Article of Charge:
ARTICLE:-I Sh. Som Dutt Zard while working as DYC NYK Bilaspur during the year 2005-06, was alleged to have misappropriated a sum of Rs. 2,92,500/- sponsored from the M YA & S for organizing the Computer Training Centre from 1.10.05 to 31.03.96, by maintaining forged documents in support of the said programme. He also alleged to have collected monthly fees of @ Rs. 400/- per student and charged @ Rs. 60/- per form against the guidelines and terms and condition of the said training programme. Thus Sh. Som Datt Zard failed to maintain the absolute integrity and thereby violated rule 3(I) (i) of the CCS (Conduct) Rules, 1964.
6. Again EO was appointed, who concluded vide inquiry report dated 15.7.2010 ( Annexure A-7) as under:-
In a nutshell The allegation in regard to misappropriation of funds collected during training are not established as the C.O. was transferred and new YC had joined. Only the sr. no. 2-C, 2-D above are established which relate to selection process. But no element of doubtful integrity is found in the act of CO Mr. Zard.
7. The CA neither differed with the findings of the IO nor recorded any disagreement note, but concluded, of its own, that charge of lack of devotion of duty against the applicant is established and awarded the indicated penalty vide non-speaking impugned order dated 14.10.2014 ( Annexure A-1). The appeal filed by the applicant was also dismissed vide very brief impugned order dated 6.4.2015 ( Annexure A-2) by the AA.
8. Aggrieved thereby, the applicant has preferred the instant O.A., challenging the impugned orders on the following grounds:-
(i) That from a perusal of the charge contained in the subsequent memo dated 31.03.2008 (Annexure A-6) this Honble Court may be pleased to take notice of the fact that the Article of charge contained in it is merely an outshoot of the list of Articles contained in the earlier charge sheet issued vide memo dated 03.05.2007 (Annexure A-7) and against the said charge sheet a detailed inquiry was conducted vide report dated 26.03.2009 in favour of the applicant which was accepted by the punishing authority in the office of respondent no.3 vide order dated 29.01.2010 (Annexure A-5) vide which applicant was completely exonerated from the charge. There was no reason with the punishing authority in passing the impugned order dated 14.10.2014 (Annexure A-1) by overlooking its earlier order (Annexure A-5).
(ii) That the impugned order dated 14.10.2014 has been passed on acceptance of the inquiry report dated 15.07.2010 (Annexure A-7). In the report, the inquiry office has concluded in a nutshell that the allegation against the applicant regarding the misappropriation of funds collected during training are not established as the CO was transferred and new YC had joined. The said conclusion is in relation to the specific allegation contained in Article of Charge in memo dated 31.03.2008 (Annexure A-6). Once the inquiry officer has arrived at a conclusion in specific that the charge of misappropriation of funds are not established, there is no reason and justification with the punishing authority i.e. the Competent Authority in the office of respondent no.3 to pass the impugned order dated 14.10.2010 (Annexure A-1) by forming a different opinion against the inquiry report.
(iii) That in the Article of Charge contained in memo dated 31.03.2008 (Annexure A-6), the applicant is alleged to have violated the provisions of Rule 3 (I) (i) of the CCS (Conduct) Rules, 1964. The ibid provision is reproduced hereunder for the ready reference and kind perusal of this Honble Court:-
General: (1) Every Government servant shall at all times:-
(i) Maintain absolute integrity;
(ii) Maintain devotion to duty; and
(iii) Do nothing which is unbecoming of a Government servant.
From a perusal of the inquiry report dated 15.07.2010 (Annexure A-7), this Honble Court may be pleased to take notice of the fact that there is no blot on the integrity of the applicant and the provision of Rule 3 (I) (i) of the ibid Rule is not violated.
(iv) That the Appellate Authority respondent no.2 has also failed to appreciate the facts and evidence on record and the order has been passed without the application of the due judicious application of mind rather the impugned order dated 06.04.2015 has been passed by the Appellate Authority in reluctance due to making representations by the applicant to the Appellate Authority for deciding of his Appeal expeditiously as is evident from one of such representation dated 18.11.2014 made by the applicant to the Appellate Authority copy of which is being attached as Annexure A-9 with this Application.
(v) That prima facie the action of the respondent Authority in passing the impugned orders dated 14.10.2014 (Annexure A-1) and 06.04.2015 (Annexure A-2) amounts to Double Jeopardy which have gravely prejudice to the rights of the applicant.
(vi) That while passing the impugned orders, the respondent Authorities have failed to appreciate the fact that the applicant was in the process of his transfer from Bilaspur to Kinour. The selection made by the applicant was purely provisional subject to fulfilling the terms and conditions by the applicant as per the guidelines laid down in the letter dated 27.09.2005. After relinquishing the charge, it was the responsibility of his successor Shri J.N. Sharma to ascertain and insure that the candidates who were to join in the project programme fulfills all terms and conditions in conformity with the guidelines provided in the said letter. Despite the fact that all financial and other irregularities were proved against Shri J.N. Sharma in the preliminary inquiry conducted by Shri Anil Kaushik, Deputy Director, NYKS Shimla and in the Police investigation, yet no action has been taken against Shri J.N. Sharma, the successor of the applicant and he has been let off scot-free.
(vii) That while returning findings, in its report dated 15.07.2010, the inquiry officer has acted arbitrarily while diluting the charge contained in the statement of Articles of charges in memo dated 31.03.2008 (Annexure A-6) and has given findings in sub clause 2 (C) and (D) by ignoring the findings recorded in the earlier inquiry report dated 26.03.2009 (Annexure A-4) and has acted beyond its jurisdiction. The inquiry interested to the inquiry officer was specific with regard to the allegation of misappropriation of funds contained in Article of Charges and the inquiry officer was also required to consider the statement of imputation against the applicant in the light of the allegation contained in the Article of charges.
(viii) That the penalty imposed against the applicant is totally uncalled for and is unjust, unreasonable and prima facie illegal. No reason has been assigned in the impugned order dated 14.10.2014 (Annexure A-1) for imposing the penalty of withholding of three annual increments without cumulative effect and affecting recovery of Rs.6500/- (Six thousand five hundred) from the salary of the applicant. Imposing of such penalty has come as a blot in the service career of the applicant as it would also render him deprived for claiming financial up-gradation under M.A.C.P. which would be an irreparable financial loss to the applicant.
(ix) That the action of the respondents is prima facie discriminatory when Shri J.N. Sharma the successor of the applicant who had handled the entire training programme has been let of without any action against him and thus the action of the respondents in throwing entire responsibility on the applicant is totally unjust and unfair.
(x) That the action of the respondents is discriminatory and is violative of the Articles 14 & 16 of the Constitution of India.
9. On the strength of aforesaid grounds, the applicant seeks to quash the impugned orders in the manner indicated herein above.
10. The respondents refuted the claim of the applicant and filed the written statement, wherein it was pleaded that the applicant was rightly charge-sheeted for his pointed misconduct. He was, however, given an opportunity to prove his innocence and the inquiry was concluded, by following the due procedure prescribed under the Rules. He was rightly awarded the above mentioned penalty by the DA, which was affirmed by the AA. However, it was admitted that in compliance of transfer order dated 7.10.2005, applicant was relieved on 13.10.2005 from NYK Bilaspur and Sh. J.N. Sharma had taken over the charge on 19.10.2005 in his place. It was alleged that the selection process was completed by the applicant before he was relieved from the NYK Bilaspur. It was admitted, that the findings of the IO in first charge sheet that the charges are not proved against the applicant, were accepted by the CA. The second charge-sheet was stated to have been issued to him on the basis of the complaint made by one Sh. K.C. Sharma retired Subedar. It was alleged that even the Inquiring Authority found that Sh. Vijay Singh and Smt. Manju Bala whose selection was finalized by the applicant, did not meet the selection criteria. Thus there was dereliction of duty and lack of devotion to duty on the part of the applicant. Accordingly, he was rightly punished by the CA. Virtually acknowledging the factual matrix, and reiterating the validity of the impugned orders, the respondents have stoutly denied all other allegations and grounds contained in the O.A. and prayed for its dismissal.
11. Controverting the pleadings in the reply filed by the respondents and reiterating the grounds contained in the O.A., the applicant filed the replication. That is how we are seized of the matter.
12. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the entire matter, we are of the firm view that the instant O.A. deserves to be accepted for the reasons mentioned herein below.
13. As is evident from the record that the applicant was appointed on the post of DYC in NYK Bilaspur in the months of September, 2005. As per para 4 of the written statement, in compliance to the transfer order dated 7.10.2005 the applicant was relieved on 13.10.2005 from NYK Bilaspur. It is not a matter of dispute that all the earlier three charges, including that applicant has collected Rs. 200 per month from each trainee of the Computer Training Programme organized by NYK Bilaspur and alleged to have invited participants from 80 Youth Clubs/Mahila Mandals in youth conference held at Kothipur and paid T.A. to the participants from 20 Youth Clubs only, were not at all proved by the IO vide 1st inquiry report dated 23/26.3.2009 ( Annexure A-4). The finding of the IO were duly accepted by the CA vide order/memo. dated 29.1.2010 ( Annexure P-5).
14. Surprisingly, enough the applicant was again charge sheeted on the ground that during the year 2005-2006 he was alleged to have misappropriated sum of Rs. 2,92,500/- sponsored from the M YA & S for organizing the Computer Training Centre from 1.10.2005 to 31.03.2006 by maintaining forged documents in support of the said programme. He alleged to have collected monthly fees @ Rs. 400/- per student and charged Rs. 60/- per form against the guidelines and terms and condition of the said training programme.
15. Be that as it may, however, it remained an unfolded mystery, as to why this charge was not added in earlier charge sheet dated 3.5.2007 ( Annexure A-3) in which the applicant was duly exonerated by the IO vide report dated 23/26.3.2009 ( Annexure A-4). The findings of the IO were duly accepted by the CA vide memorandum dated 29.1.2010 (Annexure A-5).
16. Not only that even in the 2nd inquiry report the IO has concluded that the allegations with regard to misappropriation of funds during the training period are not at all established against the CO vide inquiry report dated 15.7.2010 Annexure A-7). However, it was mentioned that allegations contained in Sl. No. 2-C and 2-D are established, but no element of doubtful integrity is found in the act of CO.
17. We have perused the allegations at Sl. NO. 2-C and 2-D which relates to enrolment of Sh. Vijay Singh and Smt. Manju Bala. Even these allegations were not the subject matter of the current charge sheet ( Annexure A-6). Otherwise also the IO in his second inquiry report concluded that no element of doubtful integrity is found against the applicant. That means, even in 2nd charge-sheet, the applicant was exonerated, as regard the allegations of misappropriation are concerned. The DA neither disagreed with the findings of the IO in 2nd charge-sheet nor recorded its disagreement note, as required under the CCS (CCA) Rules. On the contrary DA has straightway jumped to impose the above mentioned penalty on the applicant vide impugned non speaking order (Annexure A-1) which is not legally sustainable.
18. This is not end of the matter. A perusal of the record would reveal that various points raised by the applicant in reply to the charge sheet were not duly considered and just ignored by the Disciplinary Authority, while imposing the impugned penalty on him. It is also not a matter of dispute that the applicant has raised very important and relevant issues in his ground of appeal (Annexure A-9). Surprisingly, enough all the important and relevant issues raised in his ground of appeal (Annexure A-9) were not at all considered and his appeal was rejected by way of a very brief impugned order dated 6.4.2015 ( Annexure A-2) by the AA which in substance is as under:-
AND WHEREAS the Chairman, BOG, as an Appellate Authority of NYKS after going through the contents of the appeal, considering findings of inquiry report, concurrence of CVC, recommendation of CVO and others aspect of the case, found that, the penalty imposed by DA is justified.
NOW THEREFORE, the Appellate Authority under Rule 25 of the CCS (CCA) Rules, 1965 has rejected the appeal of Shri Som Dutt Zard with a remark that only a minor penalty is imposed. He doesnt deserve any relaxation and has to undergo the penalty imposed.
19. Meaning thereby, neither the DA nor AA have at all considered the relevant material. Such authorities exercise quasi judicial functions and are required to consider the entire matter in right perspective and then to pass speaking and reasoned orders to decide the matter in dispute between the parties, which is totally missing in the present case.
20. What cannot possibly be disputed here is that Central Vigilance Commission in its wisdom has taken a conscious decision and issued instructions vide Office Order No.51/09/03 dated 15.09.2003, which reads as under:-
Subject: - Need for self-contained speaking and reasoned order to be issued by the authorities exercising disciplinary powers.
Sir/Madam, It was clarified in the Department of Personnel & Administrative Reforms OM No. 134/11/81/AVD-I dated 13.07.1981 that the disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and therefore, it is necessary that orders issued by such authorities should have the attributes of a judicial order. It was also clarified that the recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy, or reached on ground of policy or expediency. Such orders passed by the competent disciplinary/appellate authority as do not contain the reasons on the basis whereof the decisions communicated by that order were reached, are liable to be held invalid if challenged in a court of law.
2. It is also a well-settled law that the disciplinary/appellate authority is required to apply its own mind to the facts and circumstances of the case and to come to its own conclusions, though it may consult an outside agency like the CVC. There have been some cases in which the orders passed by the competent authorities did not indicate application of mind, but a mere endorsement of the Commissions recommendations. In one 28 OA No.No.100/2351/2015 and connected cases case, the competent authority had merely endorsed the Commissions recommendations for dropping the proposal for criminal proceedings against the employee. In other case, the disciplinary authority had imposed the penalty of removal from service on an employee, on the recommendations of the Commission, but had not discussed, in the order passed by it, the reasons for not accepting the representation of the concerned employee on the findings of the inquiring authority. Courts have quashed both the orders on the ground of non-application of kind by the concerned authorities.
3. It is once again brought to the notice of all disciplinary/appellate authorities that Disciplinary Authorities should issue a self-contained, speaking and reasoned orders conforming to the aforesaid legal requirements, which must indicate, inter-alia, the application of mind by the authority issuing the order.
21. Exhibiting the necessity of passing of speaking orders, the Honble Apex Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240 has in para 8 held as under:-
8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
22. An identical question came to be decided by Honble Apex Court in a celebrated judgment in the case of M/s Mahavir Prasad Santosh Kumar Vs. State of U.P. & Others 1970 SCC (1) 764 which was subsequently followed in a line of judgments. Having considered the legal requirement of passing speaking order by the authority, it was ruled that recording of reasons in support of a decision on a disputed claim by a quasi-judicial 29 OA No.No.100/2351/2015 and connected cases authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just. It was also held that while it must appear that the authority entrusted with the quasi-judicial authority has reached a conclusion of the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that he must record the ultimate mental process leading from the dispute to its solution. Such authorities are required to pass reasoned and speaking order. The same view was again reiterated by Honble Apex Court in the case of Divisional Forest Officer Vs. Madhuusudan Rao JT 2008 (2) SC 253.
23. Therefore, thus, seen from any angle, indeed impugned orders are sketchy, non-speaking against the statutory rules & principles of natural justice, and cannot legally be sustained in the obtaining circumstances of the case.
24. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
25. In the light of the aforesaid reasons, the OA is hereby accepted. The impugned charge-sheet, order dated 14.10.2014 (Annexure A-1) of DA and order dated 06.04.2015 (Annexure A-2) of AA are set aside. However, the parties are left to bear their own costs.
(RAJWANT SANDHU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 27.01.2017
`SK
1
(OA No. 061/00073/2015)