Central Administrative Tribunal - Delhi
Sh. Chaman Prakash vs The Union Of India Through on 3 July, 2008
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1132/2007
New Delhi this the 3rd day of July, 2008.
Honble Mrs. Meera Chhibber, Member(J)
Honble Mrs. Chitra Chopra, Member(A)
Sh. Chaman Prakash,
S/o late Sh. Megh Raj Singh,
R/o Village & P.O. Baxanpur,
Distt. Bijnor UP.
C/o Sh. Sant Lal,Advocate,
CAT Bar Room,New Delhi-1. .. Applicant
(through Sh. Sant Lal, Advocate)
Versus
1. The Union of India through
the Secretary,
M.O. Human Resources Development,
Department of School Education & Literacy,
Shastri Bhawan, New Delhi-1.
2. The Chairman,
Central Tibetan Schools Administration
CTSA,
M.O. Human Resources Development,
Department of School Education,
Shastri Bhawan, New Delhi-1.
3. The Director,
C.T.S.A.,
ESS ESS Plaza,
Community Centre,
Sector-3,
Rohini-85. . Respondents
(through Sh. Anil Shrivastav, Advocate)
O R D E R
Mrs. Chitra Chopra, Member(A) By this O.A. applicant (Chaman Prakash) has impugned the following orders:-
Order F.No. 4-50/95-CTSA(E-I)(Pt)(US) dated 18.07.2005(A-1).
Order F.No.4-50/95-CTSA(E-I)(Part)(US) dated 10.11.2005(A-2).
Letter No.F.20-34/2006-Sch.3 dated 21.02.2007 (A-3).
2. Applicant is aggrieved against the above mentioned orders vide which he has been awarded penalty of compulsory retirement.
3. Factual matrix briefly is recapitulated as under:-
Applicant was appointed as Primary Teacher in the pre-revised pay scale of Rs. 1200-2040 w.e.f. 26.10.1995 under Central Tibetan Schools Administration (CTSA) New Delhi. He was made substantive against the said post along with 20 others with immediate effect vide order dated 09.01.2002.
Though the probation period of two years had expired on 25.10.1997, yet an order dated 11.08.1998 was issued for termination of his service even without service of notice or one months salary in lieu thereof. Also this order was issued by an authority not competent to issue the same. Applicant submitted his representation in November 1998 to Chairman, CTSA against the termination. In response to the same, an order dated 30.03.1999 was issued under which the termination order dated 11.08.1998 was withdrawn. This order was, however, made without any prejudice to the disciplinary proceedings to be taken against the applicant but no disciplinary proceedings had been taken against the applicant as no charge sheet had been issued. In continuation of order dated 30.03.1999, further order dated 17.01.2000 was issued reinstating the applicant by giving him benefit of doubt and treating the intervening period as dies non. It is submitted that treating this period as dies non is illegal.
Applicant was selected for higher post of Technical Assistant in the pay scale of Rs. 4500-7000 on deputation basis in the Ministry of Water Resources vide order dated 03.09.2003 (Annexure A-4) and was relieved from his duties w.e.f. 09.09.2003 vide Relieving order dated 09.09.2003 (Annexure A-5). While applicant was on deputation in Water Resources, the Secretary (now designated as Director) of CTSA issued charge sheet under Rule 14 of CCS (CCA) Rules, 1965 against him vide Memo dated 19.04.2004 alleging violation of Rule 3(I)(i)(iii) of CCS (Conduct) Rules, 1964. Applicant submitted his representation against the charge sheet denying the charges. Initially, Sh. A.K. Varshney, retired Assistant Commissioner was appointed as Inquiry Officer (IO) but he refused to act as IO against the applicant. Thereafter, Sh. V.K. Gupta, Dy. Commissioner (Retd.) KVS was appointed as IO vide order dated 07.07.2004, but copies of their appointment orders had not been given to the applicant. It is further submitted that IO hurriedly completed the inquiry and submitted report on 24.05.2005 holding the charge as proved. Copy of the said inquiry report was supplied to the applicant with letter dated 07.06.2005. Applicant submitted his representation within 10 days as prescribed and reiterated denial of the charge. However, his submissions were not accepted by Director, CTSA and he was imposed penalty of compulsory retirement vide order dated 18.07.2005 (Annexure A-1). His appeal dated 03.08.2005 was also rejected by the Appellate Authority vide order dated 10.11.2005 (Annexure A-2). Applicant submitted another appeal dated 10.01.2006 followed by further appeal dated 17.11.2006 but the same were also rejected by a non-speaking and non-reasoned order vide order dated 21.02.2007 (Annexure A-3).
4. In the above factual background, applicant has sought the following reliefs:-
(a) Impugned orders are arbitrary, illegal and discriminatory and against the principles of natural justice.
(b) The Disciplinary proceedings initiated by the Director, CTSA were without his competence and jurisdiction as applicant was on deputation to the Ministry of Water Resources and was not working under him when the charge sheet dated 19.04.2004 was issued. Hence the impugned punishment order based on that charge sheet is void.
(c) The Director, CTSA appointed Sh. V.K. Gupta a retired Dy. Commissioner (Admn) of KVS as IO. This was also against the provisions of Rule 14(2) of CCS (CCA) Rules, 1965 and the Government of India instructions. Thus the proceedings are vitiated.
It is further submitted that Disciplinary Authority had prejudged in the Article of Charge issued vide Memo dated 19.04.2004 and the inquiry was only a formality. He has also cited the decision of Guwahati Bench of this Tribunal in the case of Vijay Bhatnagar Vs. U.O.I. (2005(3)ATJ 40) and also the decision of the Calcutta Bench of the Honble High Court in the case of Nag Naryan Singh Vs. U.O.I. (2001(30ATJ 158) wherein it has been held that proceedings are vitiated where the issue is prejudged at the stage of framing of charge sheet. It is further stated that the inquiry has not been done in fairness and in accordance with the rules and the prescribed procedure thus applicant suffered serious prejudice in defending his case. Further, the inquiry was summarily concluded by proceeding ex-parte in just 3 days, thus, showing clearly that the IO was biased and determined to proceed ex-parte and conclude the inquiry even without following the prescribed procedure and the principles of natural justice.
Applicant has also stated that he was denied adequate opportunity to defend his case. No opportunity was given to submit his statement of defence after the close of the prosecution evidence as required by Rule 14(16) and also for submission of written briefs as required under Rule 14(19). Even the copy of the written briefs submitted by the Presenting Officer had not been supplied to him. The Inquiry officer acted as a Prosecutor as well as a Judge at the same time, which is in violation of principles of natural justice. In support of his contentions, he has cited the following decisions of this Tribunal:-
Balu Singh Vs. UOI & Ors. (1986(1)ATR 195 CAT ND) Prem Baboo Vs. UOI & Ors. (1987(2)ATR CAT ND) Further, procedure laid down under Rule 14(18) of CCS(CCA) Rules,1965, which was mandatory was not followed by the IO, thus, causing him serious prejudice.
It is also submitted that the charge against him is a concocted one. The alleged letter dated 10.08.2003 (Annexure A-14) has neither brought any benefit to the applicant nor any loss or harm to any other person. The said letter was in possession of the Principal when the applicant was selected for appointment to the higher post of Technical Assistant under the Ministry of Water Resources. Had there been any truth in the allegation he would not have relieved to join the higher post. Finally, the impugned orders are non-speaking, non-reasoned and cryptic and deserve to be set aside.
5. The O.A. has been opposed by the respondents. In the counter-reply filed on behalf of respondents Sh. Anil Shrivastav, learned counsel while denying the averments made in Para 4.2 of the O.A., has stated that the fact is that the applicant wrote a letter to the then Honble Human Resource Minister for his transfer from Central School for Tibetans Kurseong to Central School for Tibetans, Herbertpur and got the recommendation of the then Human Resource Minister under forged signature dated 04.08.1998. Since the integrity of the applicant was considered doubtful, the application was got verified from the HRM office and it was established that the signature of the HRM was forged. It was decided to terminate the services of the applicant after giving him one months notice in accordance with terms and conditions of the offer of appointment. Copy of the forged recommendations dated 04.08.1998 is at Annexure-1 and the termination letter dated 11.08.1998 is at Annexure-2.
The representation of applicant addressed to the Chairman, CTSA, who is also Appellate Authority of CTSA, against termination order of the applicant was examined by the Appellate Authority and it was decided that as his services had been terminated without following the procedure for disciplinary proceedings as per CCS(CCA) Rules, 1965, the benefit of doubt lies in favour of applicant and as such on the recommendation of the Honble Human Resource Minister, the termination order of applicant was withdrawn. It was also decided that no disciplinary proceedings need to be initiated against the applicant and the intervening period from 11.08.1998 to 20.05.1999 was decided, vide order dated 17.01.2000 (Annexure-3), to be treated as dies non keeping in view that the involvement of the applicant in forging the signature of HRM could not be over-looked. After that applicant was appointed in substantive capacity vide order dated 09.01.2002.
It is a matter of record that applicant was appointed as Technical Assistant on deputation basis to Ministry of Water Resources and was relieved to join his new assignment. Further, it is submitted that at the time of his relieving, another forged letter dated 10.08.2003 (Annexure-IV) was found signed by the Principal, Central School for Tibetans, CVP, Bylakuppe addressed to late Sh. M.S. Verma, the then Secretary/Director wherein it is was written that the CTSA be put under the control of D.O.E. Dharamsala and teachers will pay a sum of Rs.50,000/- for their transfer if their request is acceded to. On verification of this letter from the concerned Principal, it was confirmed on 17.09.2003 by the Principal that this letter is a forged one and is the handiwork of the applicant (Chaman Prakash) who is habitual of such practices in the past. In order to confirm handwriting of the forged letter dated 10.08.2003 , the then Director CTSA sent the forged letter, alongwith related documents to the office of the Government of India, Examiner of Questioned documents, Shimla vide letter dated 28.12.2004. The said department confirmed on 17.09.2003 that the forged letter dated 10.08.2003 tallies with the handwriting of the applicant. Accordingly, the then Disciplinary Authority issued charge sheet under Rule 4 of the CCS (CCA) Rules, 1965 (page-24).
In regard to appointment of the IO, it is denied that retired officer cannot act as inquiry authority. In accordance with Rule 4 below Government of India instructions 13-A of CCS(CCA) Rules, 1965, a retired officer can be appointed as Inquiry Officer. It is also denied that copy of the appointment letter was not served to the applicant. Copies of the same are annexed as Annexures-V&VI respectively. It has also been denied that the departmental inquiry was completed hurriedly as alleged by the applicant. In fact, the preliminary inquiry took place on 16.11.2004, 23.11.2004 and regular hearing on 09.03.2005 to 10.03.2005 and 29.03.2005 to 30.03.2005, but applicant did not cooperate with the IO and sought extension on frivolous grounds. Therefore, Inquiry Officer had no alternative but to submit the inquiry report ex-parte proving articles of charge framed against the applicant. It is further stated that the applicants representations were duly considered by the Disciplinary authority and after due consideration and the circumstances of the case and gravity of misconduct, a major penalty of compulsory retirement was imposed on the applicant which was commensurate with the offence of forgery committed and articles of charge sustained by the IO. The orders passed by the Disciplinary authority and Appellate Authority are detailed, speaking and reasoned.
It is also highlighted that applicant was a permanent employee of the CTSA and he was on deputation and as such the Disciplinary Authority is the Director, CTSA, who is fully competent to take disciplinary action against the employee. For all the above grounds, the O.A. deserves to be dismissed.
6. In rejoinder-affidavit, applicant has reiterated the submissions made in the O.A.
7. We have heard learned counsel for both the parties and perused the pleadings.
8. Sh. Sant Lal, learned counsel for applicant while reiterating the submissions made in the O.A. strenuously argued that the appointment of a retired officer as IO was in violation of the CCS(CCA) Rules and thus, vitiated the entire inquiry proceedings. He also reiterated the grounds already taken in the O.A. and relied upon the following decisions:-
(a) Sangeeta Ashok Vs. KVS (OA-766/2006) decided on 19.4.2006
(b) Ravi Malik Vs. National Film Development Corpn. Ltd. & Ors. (2006 SCC(L&S) 882)
9. On the other hand Sh. Anil Shrivastav, learned counsel for respondents argued that the punishment awarded to the applicant in no way disproportionate to the charge of forgery which stood proved against the applicant. It was clearly brought out by the opinion of the handwriting expert that in the alleged letter the signature of the Principal and staff had been forged by the applicant. In regard to the inquiry being held ex-parte, it is submitted that applicant participated in the first two hearings but after that he chose not to come despite giving him opportunities. Coming to violation of Rule 14(18) CCS(CCA) Rules, 1965, learned counsel would contend that even if there is a violation there, it is not fatal to the inquiry and from 1996 onwards there has been a substantial change in service law. Thus, applicant has not been prejudiced in any manner. Learned counsel also pressed the point that the test of prejudice will have to be satisfied to the extent that all the provisions having been followed, the out come of the inquiry could have been different. This has not been the case here. The inquiry report was sent to the applicant. He gave a reply. Again his appeal was considered as also his representation. Thus, he has been afforded opportunity at every stage of the proceedings. As such, the test of prejudice cannot be proved.
As far as pre-judging the charge, learned counsel has stated that the fact of the charge having been found proved is a finding/conclusion arrived at by the IO after examining all the documents and taking into account all the relevant evidence, etc. As the charge was clearly proved by the handwriting expert, being the expert witness, it was not felt necessary to question the other witnesses. Further, all the exhibits and documents have been given to the applicant when he received the charge sheet as well as the opinion of the expert witnesses. If applicant chose not to cross examine the expert witness and not participate in the inquiry he cannot now turn around and claim that he has been prejudiced. He was also fully aware that the inquiry was proceeded ex-parte as he was not participating.
Learned counsel also placed reliance on the decision of the Honble Supreme Court in P.D. Agrawal Vs. State Bank of India & Ors. (2006(8) SCC 776) Paras 30, 31& 32 regarding prejudice. He further placed reliance on the decision of Honble Supreme Court in State of U.P. Vs. Harendra Arora and Anr. (2001(6)SCC 392).
10. It would be appropriate to first come to the charges, which read as under:-
Article I Shri Chaman Prkash, PRT who is at present working as Technical Assistant (On deputation), in Govt. of India Ministry of Water Resources, Shram Shakti Bhawan, Rafi marg, New Delhi has written a letter dated 10.8.2003 to the Secretary, CTSA, Delhi under the forged signatures of Shri Jampa Tenzin, Principal, Central School for Tibetans, CVP, Bylakuppe and other staff members of the CTSA.
Shri Chaman Prakash has in the said letter :
Forged the signatures of the Principal and staff of CSR, CVP, Bylakuppe, in the said letter. Allured the Secretary through the said letter to accept the bribe.
Defamed and damaged the reputation of the present and past authorities of CTSA in the said letter. Tried to create trouble for the Principal and staff of CTSA whose name have been written in the said letter by falsely expressing their desire for their transfer through this letter. He tried to create problems in the smooth functioning of the Administration.
11. We find from a perusal of the inquiry report that the hearing was extended at the request of charged officer. It has been clearly recorded as under:-
Since there was no response from the Charged Officer and inspite of adjournment of hearings, it was decided to hold regular hearing ex parte as the Charged Officer was requesting for extension on frivolous ground. Regular inquiry in the matter was held on 9th and 10th March, 2005 at New Delhi and 29th and 30th March at CST, CVP, Bylakuppe. Presenting Officer introduced 12 management documents. Since Charged Officer was not attending the inquiry, Presenting Officer produced the management documents and these were taken on record and marked Ex. P1 to P12.(duplicate of P1). The Presenting Officer produced 11 departmental witnesses and one outside witness. However all the relevant papers and copies of the daily order sheet were supplied to him. The Inquiry was concluded on 30th March, 2005 and the Presenting Officer was asked to submit his written brief with a copy to Charged Officer within 10 days and thereafter Charged Officer would submit his written brief to Inquiry officer within another 10 days i.e. 25th April, 2005. Since no written brief was received from Charged Officer by 25th April, 2005, it was decided to provide him another opportunity to furnish the same by 10th May, 2004. There was no response in the matter from him and therefore it has been decided to submit the report.
12. The charge has been proved essentially on the report of Sh. Mohinder Singh, Assistant Govt. Examiner of Questioned Documents, Government of India, Shimla(HP). The opinion of Sh. Mohinder Singh was corroborated by the then Deputy Government Examiner, Government of India Sh. M.L. Sharma. It was on this basis as well as on the testimony of other witnesses that the IO came to the conclusion that the signatures are not of the Principal and have been forged by the applicant.
13. Coming to the grounds raised by the applicant, the first ground, viz., that the Director was not competent to take action against the applicant as he was on deputation is baseless as applicant was a permanent employee of the CTSA and was only on deputation. Thus, the Director was fully within his competence to take action against him.
14. The next ground is regarding appointment of retired officer as IO, we find from the rule and from the reply filed on behalf of respondents that the appointment of IO is in accordance with the instructions in the CCS (CCA) Rules, 1965. In fact, Government of India decision, 10 below Rule 14 (Procedure for Imposing Major Penalties) stipulates the terms and conditions for appointing retired officers and Inquiry Officers (G.I.CVC Circular dated 16th September,1999). This, by itself, clearly indicates that appointment of retired officers as Inquiry Officer is permissible under the Rule. In fact, learned counsel for applicant has cited Government of India Instruction No.11 and 13 under Rule 14 of the said Rules but neither of these two decisions relate to appointment of retired person as Inquiry Officer. Decision 11 dated 13.12.1972 is regarding appointment and functioning of Inquiry Officers. Decision 13 dated 06.04.2004 is regarding Streamlining of Conduct of Disciplinary Proceedings to reduce delay. In fact we do not find any O.M. dated 06.01.1971. This ground is therefore without any basis and is rejected.
15. Coming to the next ground of the applicant that the Disciplinary Authority had prejudged the issue and that the inquiry was empty formality. We must observe where a charge of forgery is concerned, the most reliable evidence is invariably the handwriting expert and once it was found proved by the expert that the signatures in question had been forged by the applicant, there is no reason for not placing reliance on such testimony. It would be relevant and interesting to quote from the letter dated 10.08.2003 on which the applicant has forged signature of the Principal:-
..We want that in this Deptt. Full Tibetan will be there in future. You help us Sir to make this Deptt. as completely under D.O. Dharamsala. Our Ex. Secy. Datta Ji was completely under us. Due to his we are sure you appoint us as E.O. in Delhi. For this we will give 50 thousand. Some teachers are under us please grant their request on their choiceable place.
xxxx Names of 15 persons have been given.
.Sir please do not mind I will be as your family member. If you terminate or dismiss 50% staff of Indian from CTSA. This is my personal request. Do not think it is official. If you have taken this negative we can push you in KV through our Holiness Dali Lama. I am here enclosed the teacher signed list who are interested to transfer without TA/DA.
16. It also emerges from a perusal of the record that applicant had though participated on the first two dates, thereafter chose not to participate in the inquiry. It is not as if he was unaware that inquiry was proceeding and would also be fully aware of the rules that if he does not participate, even after having been given opportunities, the inquiry would necessarily proceed ex-parte. This is what has been done. It is not for the applicant to later on turn around and take the plea of prejudice having been caused. In fact, we do not find any prejudice having been caused to him. As it also transpires from the background given by the respondents, applicant had even earlier forged the signatures of the Minister for getting his transfer. The charge of forgery, whatever be the compulsions or the circumstances for a Government employee is indeed serious and of a grave nature and hence the penalty of compulsory retirement having been imposed on him cannot be said to be disproportionate to the nature of charge. We have also seen the orders passed by the Disciplinary Authority dated 18.07.2005 and the Appellate Authority dated 10.11.2005. By no stretch of imagination, these order can be said to be cryptic, unreasoned or non-speaking orders. In fact, the orders are detailed, fully reasoned and self contained.
17. We have also gone through the decisions cited by learned counsel for both the parties.
18. The decision cited by the learned counsel for applicant in Sangeeta Ashoks case. However, we find that this is not relevant as it relates to an employee of KVS where rules of KVS were applicable, and are different from those applicable to the applicant. The other decision cited by the learned counsel for applicant in Ravi Maliks case in which we find that it is specifically in relation to the service rules and Regulations of the National Film Development Corporation Ltd. and Others, hence it also does not help the Applicants case.
19. Honble Supreme Court in P.D. Agrawals case (supra) has ruled that whether the plea of any prejudice has not been raised by the applicant at any stage during the proceedings, It would not be open to him to raise the plea subsequently. The following has been observed:-
30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.
31. .We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from laws of men, laws of God also observe the rule of audi alteram partem. . In our opinion, the approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential.
32. ..Additionally, there was no material placed by the employee to show as to how he has been prejudiced. Though in all cases the post-decisional hearing cannot be a substitute for pre-decisional hearing, in the case at hand the position is different.
39..The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala v. S.K. Sharma and Rajendra Singh v. State of M.P. the principle of law is that some real prejudice must have been caused to the complainant.
40.Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise. Honble Supreme Court in Harendra Aroras case (supra) where appellant was not given copy of the inquiry report, held as under:
Such a rule is procedural and mandatory- However, the delinquent seeking the order of his dismissal to be quashed on the ground of non-compliance with the said provision, held, must show that he was prejudiced thereby Otherwise the said omission would not be fatal to the impugned order Provisions in other statutes saving an order suffering from defect, error, irregularily or omission, from being set aside unless prejudice or failure of justice is shown, noticed On facts, held, the delinquent failed to discharge that burden.
20. After hearing the submissions of learned counsel for both the parties and careful consideration of all aspects of the case and looking to the totality of the circumstances as well as above rulings of Honble Supreme Court, we come to the considered conclusion that neither applicant had been denied any opportunity to defend himself nor has the inquiry been vitiated procedurally. In fact, applicant is himself responsible for not participating in the inquiry as has clearly emerged from the record. Applicant having been found guilty of a serious charge- viz. forgery is not entitled to the relief claimed in the present O.A. Accordingly, O.A. is dismissed. No costs.
(Mrs. Chitra Chopra) (Mrs. Meera Chhibber)
Member(A) Member(J)
/vv/