Central Administrative Tribunal - Chandigarh
Sunil Kumar Sawhney Son Of Late Sh. Om ... vs Union Of India on 30 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION No. 061/00002/2016
Date of filing: 12.01.2016
Order reserved on: 26.05..2016
Chandigarh, this the 30th day of May, 2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J) &
HONBLE SMT. RAJWANT SANDHU, MEMBER (A)
Sunil Kumar Sawhney son of late Sh. Om Parkash Sawhney, Assistant Accounts Officer, Circle Stamps Depot, Industrial Estate Post Office Complex, Bari Brahmana, Jammu.
.APPLICANT
BY ADVOCATE: SHRI VINAY PANDEY
VERSUS
1. Union of India, Ministry of Communications and Information Technology, Department of Telecommunications, Sanchar Bhawan, Ashoka Road, New Delhi through its Secretary.
2. Department of Posts, Dak Bhawan, Ashoka Road, New Delhi through its Secretary.
3. The Member (Finance), Telecom Commission, Sanchar Bhawan, Ashoka Road, New Delhi.
4. The Chief Post Master General, Jammu & Kashmir Circle, Meghdoot Bhawan, Bahu Plaza, Rail Head Complex, Jammu.
5. The Director of Accounts (Postal), Jammu and Kashmir Circle, Bakshi Nagar, Jammu.
.RESPONDENTS
BY ADVOCATE: SHRI B.B. SHARMA
ORDER
HONBLE MR. JUSTICE L.N. MITTAL, MEMBER(J):-
By filing this Original Application under Section 19 of the Administrative Tribunals Act, 1985, applicant Sunil Kumar Sawhney has sought quashing of Memorandum dated 12.6.2015 (Annexure A-1) and Memorandum dated 2.9.2015 (Annexure A-2) whereby charge-sheets for major penalty have been issued to the applicant for holding inquires under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short, the Rules).
2. Facts in the case are not in dispute. As per notification dated 12.4.2010 (Annexure A-5), Respondent no. 3- Member (Finance), Telecom Commission is the Competent Authority to impose major penalty on the applicant, who is a Group-B Officer. The impugned charge-sheets have been issued by respondent no. 5, Director of Accounts (Postal) who is competent to impose only minor penalties on the applicant. The short limited ground to challenge the impugned charge-sheets is that the same have been issued by incompetent authority. Reliance has been placed on Rule 14(3) of the Rules and interpretation thereof by Honble Supreme Court in 2014(1) SCC 351- Union of India & Ors. VS. B.V. Gopinath. Reference has also been made to letter dated 17.3.2015 (Annexure A-7) whereby the authorities were directed to act in accordance with notification dated 12.4.2010 (Annexure A-5) and to ensure that authorities competent to initiate action under Rule 11 of the Rules as mentioned in the said notification (Annexure A-5) are the only Competent Authorities to do so.
3. The applicant submitted replies (Annexures A-3 & A-4 respectively) to the impugned charge-sheets (Annexures A-1 & A-2) Thereafter the applicant also made representation dated 04.12.2015 (Annexure A-6) to drop the charge-sheets.
4. Respondents in their written statement pleaded that in view of Rule 13(2) of the Rules, the Disciplinary Authority competent to impose any minor penalty may also institute disciplinary proceedings for imposition of any major penalty notwithstanding that the said disciplinary authority is not competent under the Rules to impose any major penalty. It has thus been pleaded that respondent no. 5 being competent to impose minor penalty on the applicant as per notification dated 12.4.2010 (Annexure A-5) was also competent to institute disciplinary proceedings for major penalty against the applicant under Rule 13 (2) of the Rules notwithstanding that respondent no. 5 is not competent to impose any major penalty on the applicant. Reliance has also been placed on judgment of Honble Supreme Court in JT 1996 (3) SC 202 Secretary to Government, Prohibition & Excise Department Vs. L. Srinivasan to contend that charge-sheets should not be quashed at the threshold.
5. The applicant filed rejoinder wherein he repudiated the version of the respondents and reiterated his own version.
6. We have heard counsel for the parties and perused the case file.
7. Counsel for the applicant reiterated that only respondent no. 3 being competent to impose major penalty on the applicant was competent to issue the impugned charge-sheets to the applicant for major penalty, but the charge-sheets have been issued by respondent no. 5 who is not competent to impose any major penalty on the applicant and is also, therefore, not competent to issue the impugned charge-sheets. Reference in this regard was made to Rule 14(3) of the Rule stipulating that where it is proposed to hold an inquiry against a Govt. servant under this Rule and Rule 15, the Disciplinary Authority shall draw up or cause to be drawn up the substance of the imputation into definite and distinct Articles of Charge. It was thus argued that respondent no. 3 only being the Disciplinary Authority was competent to issue charge-sheet for major penalty to the applicant and, therefore, impugned charge-sheets issued by respondent no. 5 being not the Competent Authority are liable to be quashed. Reliance has been placed on judgment of Honble Supreme Court in the case of B.V. Gopinath (supra). It was also pointed out that even respondent no. 5 after realizing the aforesaid defect sought approval from respondent no.3 for the impugned charge-sheets and the same was granted vide letter dated 9.11.2015 (Annexure R-6) but the said ex-post-facto approval would not validate the impugned charge-sheets. Reference was also made to letter dated 17.3.2015 (Annexure A-7) stipulating that competent authorities as mentioned in notification dated 12.4.2010 (Annexure A-5) are the only competent authorities to initiate action against Group-B officers.
8. Counsel for the applicant also contended that the impugned charge-sheets have been issued after long delay of the alleged acts of misconduct and are, therefore, liable to be quashed on this ground as well. Reliance in support of this contention has been placed on judgment of Honble Supreme Court in 2005 (4) SCT 60- P.V. Mahadevan VS. M.D., Tamil Nadu Housing Board. In this context, it was also pointed out that the applicant was due for promotion in July 2015 and, therefore, impugned charge-sheet (Annexures A-1) dated 12.6.2015 was issued just prior to it for obstructing the promotion of the applicant. Even Inquiry Officer and Presenting Officer relating to charge-sheet (Annexure A-1) have been appointed belatedly vide order dated 20.5.2016 i.e. after almost one year of the issuance of the charge-sheet and Inquiry Officer and Presenting Officer have not yet been appointed relating to charge-sheet Annexure A-2).
9. On the other hand, counsel for respondents reiterated that in view of Rule 13(2) of the Rules, respondent no. 5 who is competent to impose minor penalty on the applicant is also competent to issue the impugned charge-sheets to the applicant for major penalty although final decision regarding imposition of major penalty has to be taken by respondent no.3 being the competent Disciplinary Authority for imposing major penalty. Counsel for respondents also submitted that mere delay in issuance of charge-sheets is no ground to quash the same as held by Honble Supreme Court in the case of L. Srinivasan (supra).
10. We have carefully considered the matter. As regards delay in issuance of charge-sheets, this ground deserves to be rejected summarily because it has not even been canvassed or raised in the O.A. Consequently, respondents had no opportunity to rebut the same. Had it been raised in the O.A., the respondents could have responded to the alleged delay. Besides it, impugned charge-sheet dated 12.6.2015 (Annexure A-1) cannot be said to be suffering from any delay because it relates to alleged acts of misconduct committed from the year 2011 to 2013. As regards charge-sheet dated 02.9.2015 (Annexure A-2), it relates to acts of misconduct from the year 2001 to 8.11.2014. However, the said acts were allegedly committed by the applicant by making wrong verifications and sanctioning wrong withdrawals from GPF in his own favour. Obviously said acts might have been detected after lapse of some period and not immediately. The charges in both the charge-sheets are of serious nature. Consequently, the same cannot be quashed merely on the ground of alleged delay. Even otherwise, charge-sheet should not be quashed at the threshold merely on the ground of delay as held by Honble Supreme Court in the case of L. Srinivasan (supra). In that case, the Tribunal had quashed the charge-sheet on the ground of delay. The Honble Supreme Court passed severe strictures against the Tribunal. Judgment in the case of P.V. Mahadevan (supra) is not applicable to the instant case. The said judgment was passed on the facts and circumstances of that case. There is also no foundation or material to substantiate the alleged delay in appointing the Inquiry Officer and Presenting Officer.
11. As regards the competence of respondent no. 5 to issue the impugned charge-sheets, there is considerable force in the stand of the respondents. Rule 13(2) of the Rules is reproduced hereunder:-
A Disciplinary Authority competent under these rules to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 11 notwithstanding that such Disciplinary Authority is not competent under these rules to impose any of the latter penalties.
12. In the instant case, it is undisputed that as per notification dated 12.4.2010, respondent no. 5 is competent to impose minor penalties (specified in Clauses (i) to (iv) of Rule 11 of the Rules) on the applicant. From Rule 13 (2) of the Rules, it is manifest that a Disciplinary Authority competent to impose any minor penalty may also institute disciplinary proceedings for imposition of any major penalty (specified in Clauses (v) to (ix) of Rules 11 of the Rules) notwithstanding that such Disciplinary Authority is not competent to impose any major penalty. Consequently in the instant case respondent no. 5 being Disciplinary Authority competent to impose any minor penalty on the applicant is also, therefore, competent to institute disciplinary proceedings for major penalty against the applicant by issuing him impugned charge sheets, notwithstanding that respondent no. 5 is not competent to impose any major penalty on the applicant. On the other hand, respondent no. 5 after holding inquiry has to submit the papers to respondent no. 3 who is competent to impose major penalty on the applicant. Final decision in this regard has to be taken by respondent no. 5 regarding imposition of any major penalty on the applicant. However, respondent no. 5 is also competent to institute disciplinary proceedings by issuing impugned charge-sheets to the applicant for major penalty. This is evident from bare reading of Rule 13(2) of the Rules. If interpretation canvassed by counsel for the applicant that only the disciplinary authority competent to impose major penalty is the competent authority to issue charge-sheet as well, is accepted, then Rule 13(2) of the Rules would become redundant. No such interpretation can be accepted. Judgment in the case of B.V. Gopinath (supra) does not help the applicant in the instant case. This judgment simply lays down that when decision to initiate disciplinary proceedings for major penalty is taken by the Disciplinary Authority competent to impose major penalty on the delinquent, then charge-sheet also has to be approved by the same Disciplinary Authority. In the instant case, decision to initiate disciplinary proceedings for major penalty against the applicant was taken by respondent no. 5 and not by respondent no. 3. Consequently, approval of respondent no. 3 for the impugned charge-sheets was also not required in view of Rule 13(2) of the Rules. In the case of B.V. Gopinath (supra), Rule 13 (2) of the Rules was not under consideration and has not been dealt with or interpreted at all.
13. The contention of counsel for the applicant that such approval was subsequently sought by respondent no. 5 and was granted ex-post-facto by respondent no. 3 vide letter dated 9.11.2015 (Annexure R-6) is completely misconceived and untenable. No such approval has been granted by letter (Annexure R-6). On the contrary, it has been stated in letter (Annexure R-6) that in view of Gazette notification dated 12.4.2010 (Annexure A-5) and in terms of Rule 13(2) of the Rules, respondent no. 5 is Competent Authority to initiate inquiry against the applicant under Rule 14 of the Rules. This letter thus only contains the reiteration of stand of the respondents that respondent no. 5 was also competent to issue the impugned charge-sheets to the applicant.
14. It may also be noticed that the applicant in his replies dated 24.7.2015 and 14.10.2015 (Annexures A-3 & A-4) to the charge-sheets did not even raise the plea that respondent no. 5 was not competent to issue the impugned charge-sheets. Realizing it, he made a subsequent representation dated 04.12.2015 (Annexure A-6) in this regard. However, the aforesaid plea of the applicant is untenable for the reasons already recorded.
15. Letter dated 17.3.2015 (Annexure A-7) also does not help the applicant in any manner because it only reiterates that the authorities specified in notification dated 12.04.2010 (Annexure A-5) are the authorities competent to initiate disciplinary proceedings against the delinquent. In the instant case, respondent no. 5 is also the competent authority to issue impugned charge-sheets in view of notification (Annexure A-5) read with Rule 13 (2) of the Rules.
16. For the reasons aforesaid, without going into merits of the impugned charge-sheets, we find no ground to quash the same. The O.A. is accordingly dismissed with no order as to costs.
(JUSTICE L.N. MITTAL) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Dated: 30.05.2016 `SK 1 (O.A. No. 061/00002/2016)