Central Administrative Tribunal - Delhi
K. J. Kakanwar vs Ministry Of Women And Child Development on 14 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1005/2009 This the 14th day of September, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) K. J. Kakanwar, Joint Director, Central Social Welfare Board, B-12, Tata Crescent, South of IIT, New Delhi. Applicant ( By Shri Raunak Jain for Shri Ravi Prakash, Advocate ) Versus 1. Ministry of Women and Child Development, Government of India through its Secretary, Shastri Bhawan, New Delhi. 2. Central Social Welfare Board through its Chairman, Dr. Durgabai Deshmukh Samaj Kalyan Bhawan, B-12, Tara Crescent, South of IIT, New Delhi. Respondents ( By Shri Krishna Kumar for Respondent No.1, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Interference in disciplinary proceedings at the threshold when only a charge memorandum may have been issued, by judicial fora, be it a court or tribunal, is made very sparingly. Scope of judicial review so as to set aside disciplinary proceedings at the initial stage is limited. However, if out of a million cases, interference at inception is to be made in one case, present, it appears, would be such a case.
2. At the very outset, we may refer to memorandum dated 6.2.2009 containing the statement of imputation or misbehaviour in support of the article of charge as framed against the applicant. Annexure-I with the memorandum aforesaid is the statement of article of charge framed against the applicant. The same reads as follows:
That the said Shri K. J. Kankanwar, while functioning as joint director, CSWB unauthorisedly assumed the officiating charge of the post of Executive Director in the Central Social Welfare Board, New Delhi w.e.f. 28.06.2008 despite the incumbent Executive Director in Central Social Welfare Board, namely, Smt. Sujata Saunik being in position without approval of the Competent Authority, namely, Minister of State (I/C) (Women and Development), thereby acting in a manner unbecoming of a Government servant. By his aforesaid act, Shri K. J. Kankanwar violated the Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964. Annexure-II also accompanying the said memorandum is the statement of imputation of misconduct or misbehaviour in support of the articles of charge framed against the applicant. The same may not be reproduced as it has the same contents as Annexure-I, even though with some details as to how the action against the applicant came to be initiated, show cause issued to him, and the reply that he gave in response to the same.
2. Facts that are hardly in dispute and as have been projected and set out in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 by Shri K. J. Kankanwar, reveal that on 27.6.2008 Smt. Sujata Saunik, Esecutive Director, Central Social Welfare Board (hereinafter to be referred as CSWB) was put on compulsory wait by the Chairman, CSWB, arrayed in the present Application as 2nd respondent, on account of serious irregularities and insubordination. The applicant has referred to irregularities/acts of insubordination and illegal activities alleged to have been indulged in by Smt. Saunik. We need not burden this judgment by referring to the allegations made against Smt. Saunik. Suffice it, however, to mention that misconduct on the part of Smt. Saunik was viewed with the observation that her continuation on the post of Executive Director even for a day, would not only subvert the discipline of the office but would also send wrong signal to the rank and file of the CSWB as well as the 33 States Social Welfare Boards and 20000 NGOs all over the country, and would, therefore, not be in public interest. The 2nd respondent in the capacity of Chairperson and head of department of CSWB, seized all financial and administrative powers of Smt. Saunik as Executive Director and kept her on compulsory wait with immediate effect and until further orders or till she was reverted back to her parent cadre, whichever was to be earlier, in public interest. It is also recorded that till a final decision for replacement of present Executive Director was taken by the Government, all the Joint Directors would submit files and papers directly to the Chairperson with immediate effect until further orders. Smt. Saunik was also directed to hand over the charge/files/documents, keys and all other office property along with list of all the documents by 5.30 p.m. on 27.6.2008 itself to Shri K. J. Kankanwar, Joint Director (applicant). By the same very order, the applicant was given the charge of Executive Director on officiating basis in public interest by the 2nd respondent. CSWB is a Government company instituted to work for social causes established for the benefit or women and children through various non-governmental/voluntary organizations, and works on grants/financial aids by the Government of India. Under article of association and rules made thereunder, Chairperson, CSWB is the head of department having powers of general superintendence and control over day-to-day working of the Board. Vide a separate order of even date, the applicant was directed to take over charge of Smt. Sujata Saunik with immediate effect. Relevant part of the order reads as follows:
Since all the administrative and financial powers of the present Executive Director of CSWB Smt. Sujata Saunik have been ceased with immediate effect vide this office order of even number dated 27.06.2008, the senior most Joint Director of the Board Shri K. J. Kankanwar is hereby directed to take over the charge from Smt. Sujata Saunik immediately and positively by 5.30 p.m. today.
Shri Kankanwar shall be attending all the meetings and communicate with the Ministry of MWCD and other departments. In view of the orders passed by the 2nd respondent, the applicant states that he had no choice but to take over the charge of Executive Director, and that had he not accepted the order, he would have been guilty of insubordination. On 28.6.2008, Smt. Saunik was relieved from CSWB to join the office of the 1st respondent, after which the 2nd respondent never permitted her to function as Executive Director of the Board. On 30.6.2008, Ms. Neelam Bhardwaj, Joint Director (Pers.) issued an office order stating that the applicant had assumed charge of Executive Director on officiating basis on 28.6.2008, and further instructed all files/documents and information to be submitted to the applicant being Executive Director, CSWB. On 2.7.2008, the 2nd respondent issued a letter to the 1st respondent justifying her actions leading to appointment of the applicant on officiating basis. On 25.7.2008 office of the 1st respondent asked the applicant as to whether he had signed documents as officiating Executive Director, and if yes, he was to show cause as to why action be not initiated against him for unauthorisedly issuing orders in a capacity not given by the competent authority. It was also mentioned that since the 1st respondent had not relieved Smt. Saunik, according to it, she would continue to be the Executive Director, CSWB. On 31.7.2008, the 2nd respondent took up the matter of issuance of chargesheet to the applicant. On 5.12.2008, the 1st respondent informed the applicant that he was required to immediately give his response to the show cause dated 25.7.2008 by 15.12.2008, failing which appropriate disciplinary action would be initiated against him. On 15.12.2008 the 2nd respondent informed the 1st respondent that the applicant was given the charge of Executive Director on officiating basis in compliance of orders passed by her, and further that CWSB being an autonomous body, direct correspondence with its officers without keeping the Chairperson informed, should be avoided. On 19.12.2008 the 2nd respondent forwarded the reply submitted by the applicant to the 1st respondent with a covering letter wherein it was stated that the applicant had discharged duties according to instructions issued by her. The applicant was charge-sheeted on 6.2.2009. We have already reproduced the charge hereinbefore.
3. On the facts as stated above, the applicant pleads that it is a classic case of there being a bone of contention between the two respondents, and for no fault of his, he is being put through traumatic circumstances. He also pleads that there would be no case to legally proceed against him as once, he has taken over the officiating charge in obedience of the orders passed by his superior authority, he cannot be said to have indulged into any misconduct whatsoever.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their respective counter replies. We may first refer to the counter reply filed on behalf of the 2nd respondent supporting the cause of the applicant. It is pleaded therein that the organizational set up of CSWB is such that its employees are under direct control of CSWB and none of the appointment could be made without prior consultation with the Chairperson. Under the facts and circumstances, the Chairperson issued the orders in question seizing administrative and financial powers of the then Executive Director, who was put on compulsory wait till repatriation, and in order to carry out the functioning of CSWB the applicant was assigned the officiating charge of Executive Director. It is further pleaded that the Chairperson is the head of CSWB and all administrative functions and control rest with the Chairperson, however, in the present case, the impugned disciplinary action has been initiated by the 1st respondent without reference to the Chairperson, and show cause has been directly served upon the applicant. Insofar as, the basic facts as set out in the Applications referred to above are concerned, there is no dispute whatsoever. It is rather pleaded in paragraph 4.12 of the reply filed by the 2nd respondent that the issue raised by the applicant requires explanation from the 1st respondent. It is reiterated that the Chairperson is the head of CSWB and all administrative control rests with her and that she was never consulted and at no point of time she approved or recommended such action against the applicant, and further that it is for the 1st respondent to justify its action. The 2nd respondent implores this Tribunal in the circumstances as mentioned by her, to pass appropriate orders both on the OA as also on the interim relief asked for by the applicant.
5. The 1st respondent while opposing the cause of the applicant in the counter reply filed on its behalf states that the applicant is a senior officer, and he is fully aware that the competent authority in his case would be the administrative Ministry and he cannot plead ignorance of the bye-laws being a senior officer, which would show mala fide intention on his part to avail the benefit out of a wrong direction or order of his superior when he is fully aware that his superior would not be competent. It is also pleaded that since no proceedings have yet been initiated against the applicant, this Tribunal would have no jurisdiction to interfere in the matter. The applicant, it is stated, should have apprised the Chairperson that appointment to the post of Executive Director is made by the administrative Ministry in consultation with DOP&T, and he should have desisted from exercising the powers of the post to which he was not appointed by the competent authority, and further that he did not exercise prudence nor did seek order/clarification from the Ministry in the matter. The post of Executive Director, CSWB, it is pleaded, carries specific administrative and financial powers, the exercise of which by an authorized officer would be highly irregular.
6. Arguments in this case were heard on 3.8.2009 and judgment was reserved. On the day when arguments were addressed, the applicant had placed on records some documents. Vide order dated 5.8.2009, we gave opportunity to the respondents to respond and comment, if they may so choose, with regard to the additional documents relied upon by the counsel representing the applicant during the course of arguments. We may reproduce relevant part of our order:
2. During the course of arguments, the learned counsel representing the applicant handed over to us some orders and on the basis thereof urged that in same or similar circumstances, officiating charge has been given to others also, whereas in the case of the applicant, a super-technical objection has been taken that the orders giving officiating charge to the applicant were not passed by the competent authority, and that he had indulged in misconduct. Pertinent reference is made to orders dated 21.5.1992, whereby during the period of absence of Km. Vibha Puri, Executive Director, on leave from 25.5.1992, Shri V. G. Kutty, Joint Director was asked to officiate as Executive Director, in addition to his own duties. The counsel has also relied upon an order dated 8.7.1994 vide which, in the absence of the Executive Director, Shri Pradeep Pant, Joint Director was asked to look after the day-to-day work of Executive Director, and all policy matters, including administration and financial matters, were to be submitted to the Chairman for approval by him. By referring to the orders aforesaid, it is urged that in situation as mentioned above, where the Executive Director had gone on leave etc., there has been practice and tradition in the department that somebody else may officiate on the post of Executive Director so that the work may not suffer, and that never in past those who had taken charge on officiating basis in the circumstances as mentioned above, were proceeded departmentally, whereas exception is being made in the case of the applicant, who was only obeying orders passed by his superior, and surely, if he was not to accept the same, he would have been guilty of insubordination.
3. It may be true that the documents which may have bearing upon the controversy can be produced at any time; the writ runs on records, but it is also equally true that before the court may take into consideration such documents that may have been placed on records during pendency of a lis or during the course of hearing, the respondents must have chance to rebut the plea based upon such documents. We may only mention at this stage that other points have also been raised in support of the present Application, but since the point as mentioned above has been raised during the course of arguments, based upon documents produced for the first time, it would be more appropriate and in the fitness of things that the respondents may, if they may so choose, give their response. The matter was ordered to be listed again on 18.8.2009. It was directed that copy of the order be given to counsel for parties under signatures of the Court Officer, and the respondents, by the next date, may file additional affidavit, if they may so choose. Additional affidavit has since been filed on behalf of the 1st respondent. While endeavouring to explain the plea raised by the applicant that in similar circumstances, other officers were also given officiating charge, it is pleaded that as regards order dated 21.5.1992 pertaining to appointment of Shri V. G. Kutty, Joint Director as officiating Executive Director in absence of Kum. Vibha Puri, Executive Director, and the order dated 8.7.1994 appointing Shri Pardeep Pant, Joint Director on officiating basis as Executive Director in absence of the then Executive Director, these two officials were appointed as Executive Directors on officiating basis when the Executive Director in position during that period had gone on leave or was not in office, and that the case of the applicant is not comparable with the officiating Executive Directors, such as Shri V. G. Kutty and Shri Pradeep Pant. Smt. Sujata Saunik, it is stated, was present in office when the applicant was asked to officiate as Executive Director. It is then stated that as advised by DOP&T, the Ministry of Women & Child Development have constituted a selection committee to fill the post of Executive Director by search-cum-selection method, and the vacancy has been circulated in all departments of Government as also advertised in Employment News, and that the selection committee would be meeting shortly for completion of selection process. It is then stated that DOP&T has also instructed the Ministry to give additional charge of Executive Director, CSWB to Smt. Sneh Lata Kumar, Executive Director, Rashtriya Mahila Kosh, and once the selection process is complete, the incumbent would relieve Smt. Kumar of her additional charge of Executive Director, CSWB. Primarily, it is thus stated that whereas in the present case, Smt. Sujata Saunik is still in position, the two persons named above were given additional charge when the Executive Director was either not in office or was on leave. It is then pleaded that the Chairperson has no power to appoint Executive Director under the rules. Reference is made to OA No.1916/2006 filed by the applicant himself, wherein this Tribunal upheld his contention that the Chairperson is not competent to pass orders of suspension, and that the appointing and disciplinary authority of the applicant would be the Central Government.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
8. Before we may advert to the contentions of the learned counsel representing the applicant, as mentioned above, we may mention that from the records it clearly emerges that the respondents are not working in tandem. They appear to be at cross roads. It is the positive case of the applicant that present is a classic case where there is a bone of contention between the two respondents. As to whether the said respondents are at cross roads generally, we may not be concerned. However, insofar as the case of the applicant is concerned, a positive finding can be returned that both the respondents are not looking eye-to-eye. From the tenor of the two separate written statements filed on behalf of the 1st and 2nd respondents, the conclusion as mentioned above can also be arrived at. It may be recalled that whereas the 1st respondent has opposed the cause of the applicant, the 2nd respondent has supported it. The 2nd respondent would go to the extent of stating that the 1st respondent has to explain its conduct in proceeding against the applicant. The order passed by the 2nd respondent asking the applicant to officiate as Executive Director has been justified by stating that it is an administrative matter and the Chairperson has full authority to pass the order giving officiating charge of the post of Executive Director to the applicant. The 1st respondent would, however, claim to be the exclusive authority for appointment/promotion of a person to the post of Executive Director. The other thing which may stare one in the face is that if the applicant is said to have misconducted only because he took over the officiating charge of the post of Executive Director on the directions of his immediate superior, for the only reason that the appointing authority was the 1st respondent, why no action has been taken against the 2nd respondent. The applicant, at the most, had taken the charge on the asking of his immediate superior, and if the order passed by his superior was illegal, as is the opinion of the 1st respondent, we are amazed and at the same time distressed also, why a person who has passed an illegal order is not asked for an explanation, whereas the one who has acted upon the said order, is to be proceeded departmentally under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965), which is for major penalties.
9. The bare minimum facts as mentioned above are not in dispute. The applicant took over officiating charge of the post of Executive Director on the directions of the Chairperson, his immediate superior. We will deal hereinafter with the plea raised by the 1st respondent that it is the only competent authority to pass such orders, but the question that may attract any ones attention in such case is that assuming that the Chairperson did not have power and jurisdiction to even make an officiating appointment, or look after charge of a higher post, can a person who may take over the charge be said to have indulged into misconduct? The applicant is being departmentally tried on the allegation as mentioned above under Rule 14 of the Rules of 1965. Rule 3 of the CCS (Conduct) Rules, 1964 requires every Government servant at all times to maintain absolute integrity, devotion to duty and do nothing which is unbecoming of a Government servant. Rule 3(1) reads as follows:
(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. The following acts or conduct of a government servant may amount to misconduct, in view of Notes on CCS (Conduct) Rules, 1964 3rd Edition, 1980, published by the Government of India, MHA, DP&AR, below rule 3-C of the 1964 Rules:
(23) Acts and conducts which amount to misconduct. The act or conduct of a servant may amount to misconduct (1) if the act or conduct is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;
(2) if the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his master;
(3) if the act or conduct of a servant makes it unsafe for the employer to retain him in service;
(4) if the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;
(5) if the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;
(6) if the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;
(7) if the servant is abusive or if he disturbs the peace at the place of his employment;
(8) if he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant;
(9) if the servant is habitually negligent in respect of the duties for which he is engaged;
(10) if the neglect of the servant though isolated, tends to cause serious consequences.
The following acts and omissions amount to misconduct. (1) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.
(2) Infidelity, unfaithfulness, dishonesty, untrustworthiness, theft and fraud, or dishonesty in connection with the employers business or property.
(3) Strike, picketing, gherao Striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.
(4) Gross moral misconduct Acts subversive of discipline Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline.
(5) Riotous and disorderly behaviour during and after the factory hours or in business premises.
(6) Habitual late attendance.
(7) Negligence or neglect of work or duty amounting to misconduct Habitual negligence or neglect of work.
(8) Habitual absence without permission and over-staying leave.
(9) Conviction by a Criminal Court. A government employee can be departmentally tried for any of the specified misconduct enumerated above. No straitjacket definition of misconduct can be given, but as generally and normally understood, it is transgression of some established and definite rule of action. It has been defined in Blacks 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, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, 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. 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 Aiyars Law Lexicon, 3rd edition, at page 3027, the term misconduct has been defined as under:
The term misconduct implies, a wrongful intention, and not involving 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.
10. The allegations against the applicant, in our view, would not be covered either under rule 3 of the Conduct Rules, or the DP&AR instructions below rule 3-C, reproduced hereinabove. No doubt, as mentioned above, there cannot be any straitjacket definition of misconduct. It would depend upon facts and circumstances of each case as to whether an employee has indulged in misconduct. In our considered view, taking over only officiating charge on the directions of immediate superior would not be a misconduct. The applicant, it appears, would have been in for far more trouble had he not obeyed the order of his superior. He was in a situation of having been caught between the deep sea and the devil, and it would have been difficult for him to make a choice and, if he had preferred to take over the charge, no misconduct can be spelled from the same. Having observed as above, there would be no requirement to go into the question as to whether the 2nd respondent could order the applicant to take officiating charge of the post of Executive Director. We may, however, observe that it appears to this Tribunal that the applicant was not being promoted or appointed on the post of Executive Director. In an emergent situation, he was only asked to look after the job of Executive Director in an officiating capacity. Such an order was perhaps required to be passed and could be passed in the powers vested with the Chairperson, the 2nd respondent, in carrying out administration and day-to-day business of the office. The 1st respondent in its endeavour to prove otherwise, would state that it would the appointing authority under the rules, and that this position has been recognized by this Tribunal in an OA filed by none other than the applicant himself. We find a distinction between passing of an order of promotion or appointment, as compared to simply asking an employee to temporarily look after the charge of a particular post. Surely, whereas appointments and promotions shall have to be made by the appointing authority, temporary looking after of the charge of a post would come in general administration. No right came to be conferred upon the applicant on his looking after the charge of the post of Executive Director on officiating basis. No benefit also was given to him, as it is not even the case of the respondents that he was to be given the pay of the higher post. That apart, it is proved on records that this very department has been resorting to such like orders in similar situations. We have already reproduced our order dated 5.8.2009 from where it is absolutely clear that on at least two occasions, the 2nd respondent had resorted to give officiating charge of the same very post to others. Vide order dated 21.5.1992, during absence of Km. Vibha Puri, the then Executive Director, who was on leave from 25.5.1992, Shri V. G. Kutty, Joint Director was asked to officiate as Executive Director in addition to his own duties. Vide order dated 8.7.1994, in the absence of Executive Director, Shri Pradeep Pant, Joint Director was asked to look after the day-to-day work of Executive Director. It is rather surprising to note that the 1st respondent would like to distinguish these two instances by simply stating that the Executive Directors, when others were asked to officiate, were not physically present, having gone on leave etc., whereas Smt. Sujata Saunik was very much in office. The plea raised by the 1st respondent in making a distinction as mentioned above, is absolutely hollow. The fact situation in either case was that the Executive Director was not in position to work, be it because of his/her absence on account of leave or because of an order passed in that behalf by the competent authority asking the incumbent not to work even for a day. The basic reason for giving officiating charge was that the Executive Director was not in a position to work. Whether it was because of his/her absence or because of an order, in our view, would make no difference whatsoever.
11. In our considered view, this Application deserves to be allowed. We are of the firm opinion that the applicant is a victim of a spat between the two respondents be it generally or, may be, only with regard to the case of the applicant. The overtones and undertones of the pleadings referred to above made by the 1st and 2nd respondents clearly suggest a difference of opinion between them.
12. Before we may part with this order, we may mention that if the 1st respondent was of the considered view that the order passed by the 2nd respondent was illegal, it, instead of proceeding departmentally against the applicant, should have immediately cancelled it. It would not do so nor would proceed against the 2nd respondent. This is no way to do administrative justice. We are of the considered view that the applicant has been forced into an unavoidable litigation and has been unnecessarily harassed. While thus allowing this Application, we set aside the charge-sheet dated 6.2.2009. The applicant deserves costs of this litigation, which we quantify at Rupees ten thousand.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/