Patna High Court
Amar Nath Verma vs The Union Of India & Ors on 21 January, 2011
Author: R.M.Doshit
Bench: Chief Justice, Jyoti Saran
CIVIL WRIT JURISDICTION CASE No.1711 OF 2010
Amar Nath Verma S/O Late Shambhu Nath Verma R/O West
Lohanipur Police Station Kadam Kuan, Distt.- Patna .
-----(Appellant)
Versus
1.The Union Of India Through Ministry Of Finance Department
of Revenue, North Block, New Delhi ,
2.The Secretary, Revenue, Govt. Of India, North Block, New
Delhi
3.The Chairman, Central Board Of Excise And Custom, North
Block,New Delhi
4.The Chief Commissioner, Central Excise, Ranchi Camp At
Patna
5.The Commissioner, Central Excise, Patna Central, Revenue
Building, Birchand Patel Marg, Patna
6.Shri D.K.Marandi, Additional Commissioner, Presently Posted
as Commissioner, Central Excise, Jamshedpur.
Respondents.
=============================================
Appearance:
For the petitioner : Mr. Sanjeev Ranjan, Advocate
For the respondents : Mr. Gopesh Kumar, C.G.C.
CORAM : HONOURABLE THE CHIEF JUSTICE
AND
HONOURABLE MR.JUSTICE JYOTI SARAN
JUDGMENT
( 21 /01/2011)
(Per: HONOURABLE MR.JUSTICE JYOTI SARAN
------
This application filed under Article 226 of the Constitution
of India is directed against the judgment and order dated
14.10.2009 passed in O.A.No.174 of 2003 by the Central
Administrative Tribunal, Patna Bench, Patna dismissing the
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application preferred by the petitioner and affirming the orders
passed by Disciplinary Authority dated 19.10.2001 and the
Appellate authority dated 25.10.2002 as contained in Annexures-
10 and 15 respectively imposing penalty of withholding of three
successive increments operative from 1.12.2001 till 1.12.2004 to
be restored cumulatively on 1.12.2004 but without arrears.
Shorn of unnecessary details, the facts of the case in brief
is that the petitioner was appointed as an Inspector of Central
Excise and was posted at Calcutta in the year l978. He was
transferred to the Patna Commissionerate of the Department of
Central Excise in the year 1981 and was promoted to the post of
Superintendent, Central Excise on the recommendations of the
regularly constituted Departmental Promotion Committee chaired
by the Chief Commissioner, in the year 1996.
The genesis of the proceedings finds its roots to a letter
dated 9.9.1998 of the petitioner addressed to the President and
General Secretary of the Association of Gazetted Executive
Officers of Customs and Central Excise, Patna/Jamshedpur with
copies endorsed to the Commissioner of Central Excise,
Patna/Jamshedpur and the Commissioner of Customs, Patna. The
petitioner in the said letter had shown discontent in the manner of
functioning of the Association and had made a prayer for
disassociating him from the membership of the Association. As a
copy of the letter was also endorsed to the Commissioner, Central
Excise, Patna, the petitioner received a letter dated 15.9.1998 of
the Additional Commissioner, (P and V), Central Excise, Patna
issued under the directions of the Commissioner, seeking proof and
evidence from the petitioner in support of the allegations made in
his letter dated 9.9.1998 within a period of three days of its receipt,
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failing which necessary proceedings would be initiated against
him. The letter dated 15.9.1998 as contained in Annexure-2 was
responded by the petitioner vide letter dated 15.10.1998
(Annexure-4) mentioning therein that he had nothing further to
submit in addition to the financial irregularities pointed out in his
letter dated 9.9.1998. As apprehended by the petitioner, the
Director General, Vigilance, sought a report from the
Commissioner, Central Excise, Patna as to whether permission had
been sought for raising of funds from public for the Souvenir
published, in view of the prohibition contained in Rule 12 of the
CCS Conduct Rules, 1964, (hereinafter referred to as „the Conduct
Rules‟). The office of the D.G.Vigilance, by letter dated 13.6.2000
(Annexure-5) addressed to the Commissioner, Excise, Patna,
sought the names of the officers of the Association involved in
raising of the funds, for making of a reference to the Central
Vigilance Commissioner. On the other hand, a memorandum was
issued to the petitioner on 2.7.2001 by the Commissioner of
Central Excise proposing to take action against him under Rule 16
of the C.C.S (CCA) Rules, 1965 (hereinafter referred to as „the
Disciplinary Rules‟) on the imputations of misconduct/mis-
behaviour set out therein. The memorandum as contained in
Annexure-6 charges the petitioner of using filthy, indecent and
intemperate language in the correspondences made with the Senior
Officers and for endorsing such copies to the Senior Officers
without permission, amounting to insubordination in view of the
Government of India decision no.25 provided under Rule 3 of the
Conduct Rules.
A plain reading of the memorandum demonstrates that for
the reason that the petitioner had drawn the attention of the office
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bearers of the Association, towards the irregularities prevalent in
the Association and which fears of the petitioner stood vindicated
by the letter of the Director General, Vigilance as contained in
Annexure-5, the petitioner was put to charge. The petitioner, on his
part, in response to the memorandum sought opportunity for
inspecting the records which formed the basis of the memorandum
and mentioned in his letter placed at Annexure-7 which was denied
to him under letter dated 17.8.2001 of the Commissioner placed at
Annexure-8, inter alia, on grounds that they were not relevant to
his case. The proceedings so conducted, culminated in an order
dated 19.10.2001 passed by the Commissioner of Central Excise
imposing the penalty in question and placed at Annexure-10.
The appeal preferred by the petitioner was rejected by the
Under Secretary, Government of India vide order dated 25.10.2002
(Annexure-15), thus affirming the order of penalty. The challenge
to the orders were also negated by the Central Administrative
Tribunal, Patna Bench, Patna under the judgment and order
impugned dated 14.10.2009 (Annexure-16) passed in O.A.No.174
of 2003 giving rise to the present case.
Mr. Sanjeev Ranjan, learned counsel appearing on behalf
of the petitioner, raised very short submissions in support of the
issue raised. He submits that the Commissioner of Central Excise
not being the appointing authority in terms of the provisions of
Superintendent of Central Excise Recruitment Rules, l986
published on 17.12.1986 (Annexure-17) which classify the
Principal Collector, i.e. the Principal Commissioner as the
appointing authority, the order passed by the Commissioner
Central Excise being an authority subordinate to the appointing
authority, stands vitiated and cannot be upheld. He further submits
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that the proceedings having been conducted in utter violation of the
principles of natural justice, inasmuch as the documents which
were said to be the basis of the imputations never having been
supplied to the petitioner, the order of penalty passed in such
proceedings cannot be sustained and is fit to be set aside. He
further submits that the charges set out against the petitioner do not
fall within the meaning of „misconduct‟ for inviting any
proceedings under the disciplinary rules.
It is submitted that the memorandum no where imputes the
petitioner of violating any service rules in official discharge of
duties by the petitioner. He submits that the charge itself is vague
inasmuch as no specific instances have been spelt out in the
imputation as to the indecent, filthy or intemperate language used
by the petitioner against his superiors. He submits that the
proceedings finds its roots in the letter dated 9.9.1998 of the
petitioner raising his voice against the irregularities prevalent in
the Association and which has caused displeasure to the superiors
resulting in the impugned proceedings. He submits that the fear
expressed by the petitioner was not ill founded rather stood
vindicated in view of the inquiry set up by the Director General,
Vigilance. It is also submitted that the authorities being enraged by
these developments, have made him an escape-goat and that he
was being punished for becoming a „whistle blower‟.
It is submitted that the entire proceedings being beyond the
scope of Rule 3 of the Conduct Rules and the alleged acts not
coming within the confines of „misconduct‟, the proceedings are
without the authority of law and the order passed by the
Disciplinary Authority is perverse.
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Learned counsel, concluding his arguments, submits that
the order of penalty as confirmed by the appellate authority as also
the order passed by the Tribunal affirming the orders passed in the
Disciplinary Proceedings, cannot be sustained and are fit to be set
aside. It is stated that though upon expiry of three years, the
increments have since been restored to the petitioner but his
service career stands tainted by the reason of the order of penalty
as also the petitioner has suffered a loss of increments for the three
years and the arrears between the period 1.12.2001 and 1.12.2004,
have not been paid to him.
Mr. Gopesh Kumar, learned counsel appearing on behalf
of the Union of India, supports the impugned orders and submits
that the petitioner having been found guilty of insubordination and
of using intemperate language against his superiors was punished
for his acts and which fell well within the provisions of Section 3
of the Conduct Rules, clothing the department to initiate
disciplinary action against the petitioner under the Disciplinary
Rules 1965.
We have heard learned counsel appearing on behalf of the
parties and have gone through the materials placed on the records
of the proceedings.
Upon perusal of various correspondences of the petitioner,
made with his superior officers placed in the counter affidavit
which are said to be the basis of the departmental proceedings, we
are of the opinion that the issue has been blown out of proportion.
The letter dated 9.9.1998 as contained in Annexure-1 was not even
addressed to the authorities of the Central Excise rather it was
addressed to the office bearers of the Association and was only
endorsed to the Commissioner of Excise and Customs, Patna by
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way of information. The petitioner, in fact, had expressed his
displeasure as to the manner of functioning of the Association
through the letter in question which was addressed to the President
and Secretary of the Association. No complaint was made to the
Commissioner in the said letter rather the petitioner while
expressing his displeasure, had simply prayed to the Office bearers
of the Association to disassociate him from the membership of the
Association. In the aforesaid view of the matter, the letter dated
15.9.1998 of the Additional Commissioner, Central Excise, as
contained in Annexure-2, directing the petitioner to submit proof
and evidence of his statement made in his letter dated 9.9.1998,
failing which he would be faced with the disciplinary action, was
wholly unwarranted and prima facie demonstrates excessive
sensitivity on the part of the Commissioner. The petitioner, having
responded to the said letter of the Commissioner by his letter
15.10.1998, as contained in Annexure-7, the matter ought to have
been closed by the department, but they did not chose to do so
rather issued a memorandum of charges to the petitioner, which, as
already indicated, finally culminated in the orders impugned in this
application.
The fear expressed by the petitioner was not ill founded
rather stood fully justified as is manifest from the letter of the
Director General, Vigilance dated 13.6.2000, as contained in
Annexure-5 seeking the names of the officers who were the
members of the Association and involved in the publication of the
Souvenir, for which donations had been sought from general
public, which was in clear violation of Rule 12 of the Conduct
Rules. The memorandum contained in Annexure-6 does not
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specify the indecent or intemperate language used by the
petitioner.
We find that the Disciplinary Authority has very candidly
accepted in para-5(ii) of the order of penalty dated 19.10.2001
(Annexure-10) that the origin of the proceedings is the
communication dated 9.9.1998 put in motion by Mr. Verma, i.e.
the petitioner. The said communication which was neither
addressed to the Commissioner of Central Excise, Patna nor to the
Commissioner of Custom, Patna rather was addressed to the office
bearers of the Association with copies endorsed to the
Commissioners for information, relatable to the affairs of an
Association in the capacity of its member, could not have been
made a basis for initiation of any departmental proceedings unless
it either breached the service conduct rules or was subversive of
discipline or moral turpitude. The very foundation of the present
proceedings is on a communication of the petitioner which can
neither be said to be issued in discharge of official duties nor its
recitals demonstrates showing insubordination to the superiors or
of being an act of indiscipline, harbouring on „misconduct‟, or
„moral turpitude‟ inviting any proceedings under the Disciplinary
Rues, 1965. Reference in this regard is made to the following
paragraphs of judgment of the Supreme Court rendered in the case
of State of Punjab and others V. Ram Singh Ex. Constable reported
in AIR 1992 Supreme Court 2188:
"4. Misconduct has been defined in Black‟s Law
dictionary, Sixth Edition at page 999 thus:
„A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful
behaviour, willful in character, improper or wrong behaviour, its
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synonyms are misdemeanour, misdeed, misbehaviour,
delinquency, impropriety, mismanagement, offence, but not
negligence or carelessness‟.
Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to
the duties of his office, willful in character. The term embraces
acts which the office-holder had no right to perform, acts
performed improperly, and failure to act in the face of an
affirmative duty to act.‟
In P. Ramanatha Aiyar‟s the Law Lexicon, Reprint Edition
1987 at p.821, „misconduct‟ defines thus:
"The term misconduct implies a wrongful intention, and
not a mere error of judgment. Misconduct is not necessarily the
same thing as conduct involving moral turpitude. The word
misconduct is a relative term, and has to be construed with
reference to the subject-matter and the context wherein the term
occurs, having regard to the scope of the Act or statute which is
being construed. Misconduct literally means wrong conduct or
improper conduct. In usual parlance, misconduct means a
transgression of some established and definite rule of action, where
no discretion if left, except what necessity may demand and
carelessness, negligence and unskillfulness are transgressions of
some established, but indefinite, rule of action, where some
discretion is necessarily left to the actor. Misconduct is a violation
of definite law; carelessness or abuse of discretion under an
indefinite law. Misconduct is a forbidden act; carelessness, a
forbidden quality of an act, and is necessarily indefinite.
Misconduct in office may be defined as unlawful behaviour or
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neglect by a public officer, by which the rights of a party have
been affected."
5. Thus it could be seen that the word „misconduct‟ though
not capable of precise definition, its reflection receive its
connotation from the context, the delinquency in its performance
and its effect on the discipline and the nature of the duty. It may
involve moral turpitude, it must be improper or wrong behaviour;
unlawful behaviour, willful in character; forbidden act, a
transgression of established and definite rule of action or code of
conduct but not mere error of judgment, carelessness or negligence
in performance of the duty; the act complained of bears forbidden
quality or character. Its ambit has to be construed with reference to
the subject-matter and the context wherein the term occurs, regard
being had to the scope of the statute and the public purpose it seeks
to serve. .........."
We are thus of the opinion that the department including
the Disciplinary Authority have shown utter sensitivity in the
whole matter. The recitals of the letter dated 9.9.1998 did not
warrant initiation of any proceedings as it was in the nature of a
private correspondence between the office bearers of the
Association and its member and no official role could be attached
to the same. Further the letter also does not show usage of any
filthy, indecent or intemperate language by the petitioner against
his superiors. The entry of the superior authorities of the
department in the matter have only complicated the issue and has
given birth to an otherwise unwarranted proceedings. The genesis
of the proceedings itself is beyond the scope of Rule 3 of the
Conduct Rules.
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Having held as such we feel no need to dwell upon or
express our opinion on the other issues raised by the petitioner.
In the circumstances, we have no other option but to quash
and set aside the judgment and order dated 14.10.2009 passed in
O.A.No.174 of 2003 of the Central Administrative Tribunal, Patna
Bench, Patna together with the order of penalty dated 19.10.2001,
as contained in Annexure-10, and the appellate order dated
25.10.2002, as contained in Annexure-15 and we hereby do so.
In the result, the writ petition stands allowed but without any orders as to cost. The petitioner would be entitled to all the increments to which he was entitled but denied under the impugned orders together with the arrears which should be paid to him within a period of three months from the date of receipt/production of a copy of this order.
(R.M.Doshit, C.J.) (Jyoti Saran, J) NAFR/Ahk