Central Administrative Tribunal - Delhi
Ms. Sudha Midha vs Union Of India on 10 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA NO.2846/2015
RESERVED ON 24.08.2015
PRONOUNCED ON 10.09.2015
HONBLE SHRI JUSTICE BROJENDRA PRASAD KATAKEY, MEMBER (J)
HONBLE DR. BIRENDRA KUMAR SINHA, MEMBER (A)
Ms. Sudha Midha,
W/o Shri V.K. Midha,
R/o B6, Tower 5,
New Moti Bagh,
New Delhi-110023
(Aged about 59)
(Presently ADG, Ministry of Statistics &
Programme Implementation). Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Union of India
Through its Secretary
Ministry of Statistics &
Programme Implementation
Sardar Patel Bhavan,
Sansad Marg, New Delhi-1.
2. Union Public Service Commission
Through its Secretary
Dholpur House,
Shahjahan Road,
New Delhi. Respondents
(By Advocate: Shri Gyanender Singh)
:ORDER:
HONBLE SHRI JUSTICE BROJENDRA PRASAD KATAKEY, MEMBER (J):
The applicant, who is the Additional Director General, SSD,CSO, belonging to Indian Statistical Service, Ministry of Statistics and Programme Implementation, has filed this OA challenging the charge sheet issued vide Memorandum No.12011/28/2014-APAR dated 01.05.2015, under Rule 16 of CCS (CCA) Rules 1965 (in short 1965 Rules), initiating minor penalty proceedings, contending, inter alia, that such charge sheet has been issued on frivolous grounds without there are being any misconduct on the part of the applicant, and even if the allegations levelled against the applicant in the articles of charges are taken to be true, the same do not disclose commission of any misconduct by her. It has also been contended that such proceeding under the provisions of 1965 Rules has been initiated only with a view to deny her due promotion to the post of Director General.
2. We have heard the learned counsel Mr. Ajesh Luthra, appearing for applicant, and the learned counsel Mr. Gyanender Singh appearing for respondents.
3. Referring to the articles of charges, based on which the charge memo dated 01.05.2015 has been issued, it has been submitted by the learned counsel for applicant that on a plain reading of the statement of the imputations of alleged misconduct, it appears that such imputations do not disclose the commission of any misconduct by the applicant, necessitating issuance of charge sheet under 1965 Rules, more so when the allegations contained in the said articles of charges also do not reveal violation of any of the provisions of CCS (Conduct) Rules 1964 by the applicant. Even assuming that the allegations levelled against the applicant are correct, the learned counsel submits that mere carelessness, or negligence, or lapse, in performance of duty would not constitute misconduct, unless the consequences directly attribute to negligence and the resultant damage is so heavy that the degree of culpability would be very high. In the instant case, according to the learned counsel, there being no Accepting Authority of the APAR for the period 2011-12, putting the signature by the applicant in Part-V of the APAR, which was a mere mistake, cannot be treated as mischief, so also misconduct within the meaning of CCS (Conduct) Rules 1964. The learned counsel, referring to article II of the charge, also submits that the pre-revised APAR form, which does not contain Part-V for acceptance by the Accepting Authority, has been issued to the applicant, which has been accepted by the Under Secretary, Government of India, Ministry of Water Resources, River Development and Ganga Rejuvenation, vide his office memorandum dated 13.05.2015 stating that old APAR form was inadvertently forwarded to the applicant by the said Ministry, and hence the authority ought not to have issued the charge memo and proceeded with the same. The learned counsel further submits that it is evident from the said communication dated 13.05.2015 that in any case even if Part V for acceptance by the Accepting Authority was available in her APAR form, the same would have been still left blank, as the Reviewing Officer was the Honble Minister (WR) himself. It has also been submitted that such proceeding has been initiated against the applicant only with a view to deprive her from being considered for promotion to the next promotional post, i.e., the post of Director General. The learned counsel, therefore, submits that the charges levelled against the applicant, vide the aforesaid memo dated 01.05.2015, need to be quashed. The learned counsel, in support of his contention, has placed reliance on the judgment passed by the Honble Supreme Court in Union of India and others Versus J. Ahmed, reported in AIR 1979 SC 1022, as well as the judgments of the Honble Delhi High Court in Union of India and others Versus Rajeev Bhargava, reported in 173 (2010) DLT 620 and Union of India and another Versus Vineet Ohri (WP (C) No.7914/2009) decided on 10.07.2009.
4. The learned counsel appearing for the respondents, on the other hand, has submitted that the charge sheet has been issued to find out as to whether the applicant has committed any misconduct within the meaning of CCS (Conduct) Rules and the said proceeding initiated against the applicant is yet to be completed. The learned counsel further submits that the issues raised by the applicant in the present OA shall be gone into in the disciplinary proceeding initiated against her under Rule 16 of the 1965 Rules. The learned counsel, referring to the judgment of Honble Supreme Court in Union of India and another Versus Kunisetty Satyanarayana, reported in AIR 2007 SC 906, has also submitted that the Tribunal may not interfere with the charge sheet issued to the applicant, as it is not the case of the applicant that the authority, which has issued the charge sheet, has no jurisdiction to do so and as mere issuance of the charge sheet does not infringe the right of the applicant. The learned counsel further submits that the Disciplinary Authority may even accept the show cause reply submitted by the applicant against the charge sheet issued to her and pass necessary order thereafter. It has, thus, been submitted that the OA is liable to be dismissed, as premature.
5. We have considered the submissions advanced by the learned counsel appearing for the parties. We have also perused the pleadings of the parties.
6. The Disciplinary Authority has issued the charge sheet, dated 01.05.2015, to the applicant on the following articles of charges:-
ARTICLE I Smt. Sudha Midha, ISS presently posted as Additional Director General, CSO, SSD, MOSPI, New Delhi, while working as Adviser (Horticulture), Ministry of Agriculture submitted her APAR for the period 2011-12 along with her self-resume on 03.05.2012 for Reporting, Reviewing and Acceptance by the respective Reporting, Reviewing and Accepting Officers. After completion of the APARs by the respective Reporting and Reviewing Officers, Smt. Sudha Midha unauthorizedly made entries under her signature dated 15.03.2013 in Part-V of the APAR which was meant for entry by the respective Accepting Authority in the Ministry of Agriculture. And on the very next page of the APAR, she certified under her signature also dated 15.03.2013 about having gone through the assessment given by the respective Reporting/Reviewing Officers in the APAR.
Thus Smt. Sudha Midha, ADG, CSO, SSD, MOSPI unauthorisedly made entries in Part-V of the APAR for the period 2011-12 and thereby indulged in mischief and fraud. Mischief and fraud in the ACRs/APARs, in which the culpability of the officer concerned is well borne out, and the culpability is self-evidently for the purpose of undue benefit in the fundamental record for promotion, is a serious misconduct. This is unbecoming of a Government servant and thus she has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE II Smt. Sudha Midha, ISS, presently posted as Additional Director General, CSO, SSD, MOSPI, New Delhi while working as Deputy Director General, Ministry of Water Resources submitted her APAR for the period 01.04.2012 to 31.01.2013 with self-resume dated 31.01.2013 using the pre-revised APAR form, which does not contain the Part-V for acceptance by the Accepting Authority. It is significant that Smt. Sudha Midha had used the revised form for APAR of 2011-12 i.e. for the APAR of the immediately preceding year.
Thus Smt. Sudha Midha, ISS, presently posted as Additional Director General, CSO SSD, MOSPI, who had submitted APAR for the year 2011-12 in the revised form, deliberately submitted the pre-revised format of APAR for the period 01.04.2012 to 31.01.2013 which was without Part-V for acceptance by the Accepting Authority, Smt. Sudha Midha, Additional Director General, CSO, SSD, MOSPI has thus indulged into activity which is unbecoming of a Government servant and thus she has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
7. The applicant, on receipt of the said charge sheet, submitted her reply on 05.06.2015, denying commission of any misconduct, and requesting the Disciplinary Authority to exonerate her of the charges by accepting her show cause reply. An additional reply was also filed by the applicant on 09.07.2015. The Disciplinary Authority, however, has not taken any decision on such reply as well as the additional reply filed by the applicant.
8. The Tribunal should not ordinarily quash a show cause notice or charge sheet issued in disciplinary proceeding. It is, however, not that the Tribunal under no circumstances can entertain an application challenging the charge sheet and quash the same, which obviously would depend upon the facts of each case. The Apex Court in Kunisetty Satyanarayana case has opined that a mere charge sheet or show cause notice does not give rise to any cause of action because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It has also been opined that though ordinarily a show cause notice or the charge sheet should not be quashed, but in some very rare and exceptional cases the Court can quash a charge sheet or show cause notice if it is found to be wholly without jurisdiction, or for some other reason if it is found wholly illegal.
9. The Honble High Court of Delhi in Rajeev Bhargava case (supra) has observed that instances are not far and rare where charge sheets are issued against the officers who were nearing the destination of their career, and dug out from the cupboards something, with a view to deprive such officers, who have consistently good service record, of their promotion to the higher cadre.
10. In Vineet Ohri case, the Honble High Court of Delhi has observed that one has to be particularly circumspect, when pseudonymous/innocuous complaints are received at a time when a public servant is due for promotion. The Honble High Court in the said case, having regard to the attendant facts and circumstances of the case as well as the articles of charge levelled against the concerned officer, upheld the decision of this Tribunal setting aside the charge memo, by holding that it was well within the powers of the Tribunal to examine as to whether allegations, in the facts and circumstances, amounted to misconduct at all or not and whether the issuance of charge sheet was an act of victimization.
11. The Apex Court in J. Ahmed case, while dealing with the definition of misconduct, has observed that there may be negligence in performance of duty or a lapse in performance of duty, or error of judgment in evaluating the developing situation may be negligence in discharge of duty, but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. It has also been opined that an error can be indicative of negligence, and the degree of culpability may indicate the grossness of the negligence and carelessness can often be productive of more harm than deliberate wickedness or malevolence. The Apex Court further observed that failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
12. In the case in hand, the basic allegations against the applicant are that (i) she has put her signature in Part-V of the APAR, which was meant for entry by the Accepting Authority in the Ministry of Agriculture, and (ii) she has used the pre-revised APAR form, which does not contain the Part-V for acceptance by the Accepting Authority, thereby committing serious misconduct, which is unbecoming of a Government servant and thus, she has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
13. Perusal of APAR for the period of 2011-12, which is part of the record of the OA, reveals that the name and designation of the Accepting Authority have not been indicated in the format. Applicant initiated her APAR for the said period on 03.05.2012. The Reporting Authority on 19.05.2012 furnished his comments and grading to the applicant accordingly. The Reviewing Authority, thereafter, on 07.07.2012 accepted the grading of the Reporting Officer. It also appears that the APAR pertaining to the aforesaid period, thereafter, was not sent to any authority for acceptance. After almost eight months of furnishing the comments by the Reviewing Authority, the applicant was asked to go through the said APAR on 15.03.2013 and accordingly she certified on that date that she has seen the APAR for the year 2011-12. It also appears that in the said APAR, the applicant has also put her signature on the said date in the place meant for the signature of Accepting Authority. No overall grading, as required to be given by the Accepting Authority, however, has been given by any authority as the said column is left blank.
14. Admittedly, the APAR pertaining to the year 2011-12, after the comments by the Reviewing Authority, was not in the custody of the applicant, which was in custody of some other officer, in whose presence the applicant on 15.03.2013 has certified that she had seen the APAR and in whose presence, she had put her signature in Part-V of the APAR meant for the Accepting Authority. The officer, who was authorized to show this APAR to the applicant and also had obtained the certificate from the applicant, firstly, should not have asked the applicant to see the comments on the APAR without first placing the same before the Accepting Authority, if there was such authority, as APAR would be final only thereafter. That apart since the applicant on 15.03.2013 has certified that she has seen the APAR in presence of custodian of the APAR, the said officer ought to have restrained the applicant in putting her signature in Part-V of the APAR, which in any case, does not contain the overall grading, required to be given by the Accepting Authority. As discussed above, there is in fact, no indication in the APAR as to who is the Accepting Authority, which is evident from the fact that the name and designation of the Accepting Authority have not been mentioned in the APAR, though the name and designation of the Reporting and the Reviewing Authorities have been mentioned. It is, therefore, evident that the applicant has signed the Part-V of the APAR by mistake. That apart it is evident from articles of charge-I and II, which have been reproduced above, that pre-revised APAR form did not contain Part-V for acceptance by the Accepting Authority, which has been introduced for the first time in the year 2012-13.
15. The second allegation against the applicant is relating to the use of pre-revised APAR form for the period from 01.04.2012 to 31.01.2013, which does not contain Part-V for acceptance by the Accepting Authority. Use of the said pre-revised form by the applicant for the aforesaid period is not disputed. The Under Secretary to the Government of India, Ministry of Water Resources, River Development and Ganga Rejuvenation to the Under Secretary (APAR), Ministry of Statistics & Programme Implementation has issued an Office Memorandum on 13.05.2015 which, for better appreciation, is reproduced below:-
No.A.28012/3/2013-Admn Government of India Ministry of Water Resources, River Development & Ganga Rejuvenation Shram Shakti Bhawan, Rafi Marg New Delhi, dated 13th May, 2015 OFFICE MEMORANDUM Subject: Issues related to ACR/APARs of Smt. Sudha Midha, ADG regarding.
The undersigned is directed to refer to M/o Statistics & PIs O.M. No.12011/28/2014-APAR dated 25.3.2015 on the subject mentioned above and to say that for the period 2012-13 (1.4.2012 31.1.2013), the blank APAR form in respect of ISS officers was forwarded to Smt. Sudha Midha on 14.1.2013 as the then Secretary (WR), Shri Dhruv Vijai Singh was retiring from Government Service on 31.1.2013. Inadvertently, the APAR form forwarded to Smt. Midha by this Ministry happened to be the old APAR format. Moreover, her Reporting Officer was Shri Dhruv Vijai Singh, former Secretary (WR) and Reviewing Officer was Shri Harish Rawat, the former Honble Minister (WR).
2. Even if the Accepting Authority column was available in her APAR form, the same would have been still left blank as the Reviewing Officer was by Honble Minister (WR).
Sd/-
(Narendra Singh) Under Secretary to the Govt. of India Tel. No.23738126 Shri V. Talwar Under Secretary (APAR) M/o Statistics & Programme Implementation Sardar Patel Bhawan Sansad Marg, New Delhi-110 001.
16. It is evident from the said Office Memorandum dated 13.05.2015 that the pre-revised APAR form was forwarded to the applicant for initiation of APAR for the period from 01.04.2012 to 31.01.2013, inadvertently. The said APAR has been commented upon by the Secretary (WR) as the Reporting Authority and by the Minister (WR) as the Reviewing Authority. It also appears from the said communication that the Minister (WR) being the Accepting Authority, the Part-V of the revised format in any case would have been left blank as the Minister (WR) has commented on the APAR as Reviewing Authority.
17. It also appears from the pleadings of the parties that the applicant was due for consideration for promotion to the post of Director General. The Concerned Authority has issued the charge memo, on the basis of the aforesaid allegation on 01.05.2015 pertaining to the APAR for the periods 2011-12 and 2012-13, which APARs were completed on 15.03.2013 and 17.11.2013 respectively. The claim of the applicant that she is the senior most Additional Director General and her grading in all the relevant APARs, including the APARs from 2011-12 and 2012-13, is outstanding has not been disputed.
18. As discussed above, at the most the applicant may be negligent in putting her signature in Part-V of the APAR form pertaining to the year 2011-12, which, in fact, was done in presence of the custodian of the APAR. The act of the applicant, would in any case not benefit her, there being no Accepting Authority in the APAR for the year 2011-12. Similarly, on the face of the communication dated 13.05.2015 issued by the Under Secretary to the Government of India, Ministry of Water Resources, River Development and Ganga Rejuvenation, the second allegation of initiation of APAR for the period 2012-13 in pre-revised form cannot constitute misconduct as the revised form was not supplied to the applicant, and in any case, the Reviewing Authority being the Minister himself, the column meant to be filled up by the Accepting Authority would have still left blank as the Minister is also the Accepting Authority, which, therefore, would also not give any undue benefits to the applicant. That being the position, allowing the respondents to proceed with the charge memo would only leads to harassment and mental agony to the applicant.
19. In view of the aforesaid discussions, the charge memo dated 01.05.2015 issued to the applicant is quashed. The OA is, accordingly, allowed. No costs.
(Dr. B.K. Sinha) (B.P. Katakey) Member (A) Member (J) /jk/