Central Administrative Tribunal - Delhi
Anil Kumar Mahajan S/O Prof. Dev Paul vs Union Of India Through Secretary on 12 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2784/2008 This the 12th day of March, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Anil Kumar Mahajan S/O Prof. Dev Paul, R/O S-363, Ground Floor, Greater Kailash-I, New Delhi. Applicant (By Shri Dr. Surat Singh with Shri Sunil Mund and Ms. M. Devi, Advocates) Versus 1. Union of India through Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi-110001. 2. Chairman, UPSC, Dholpur House, New Delhi-110069. 3. Chief Secretary of Bihar, Old Secretariat, Patna-800015, Bihar. Respondents (By Shri R. N. Singh, for Respondents 1 & 2, and Shri Jagdev Singh for Respondent 3, Advocates) O R D E R Justice V. K. Bali, Chairman:
Anil Kumar Mahajan, an IAS officer of 1977 batch, the applicant herein, while holding the post of OSD, State Planning Council, Government of Bihar, sequel to a regular departmental enquiry held against him, has been visited with the penalty of compulsory retirement, vide order dated 15.10.2007. The departmental proceedings and the said order are under challenged in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The applicant was proceeded for major penalty under rule 8 of the All India Services (Discipline & Appeal) rules, 1969 (hereinafter to be referred as the Rules of 1969) vide memorandum dated 22.6.1993 on the following five articles of charge:
I. Shri Anil Kumar Mahajan, Officer on Special Duty, Bihar State Planning Council had directed Treasury Officers, Secretariat Treasury, Patna to reject the bills of Shri P. K. Mishra, Development Commissioner. It was beyond his jurisdiction to give such a direction.
II. Shri Anil Kumar Mahajan, while submitting Travelling allowance Bill, requested the Secretary (Personnel) to countersign the bill. He alleged that his controlling officer, i.e., the Development Commissioner cannot countersign because a case is being pursued against him under Mental Health Act, 1987. This case, too was filed by Shri Mahajan himself.
III. Shri Mahajan accused the Development Commissioner of losing his mental stability.
IV. The description of duties written by him for the confidential report (1985-86) shows that Shri Mahajan has become a victim of imbalanced mental illness.
V. Shri Bhaskar Banerjee, the then Land Reforms Commissioner has accused Shri Mahajan of being indisciplined, irresponsible, unstable and mentally sick. A statement of imputation of misconduct or misbehaviour in support of each article of charge was enclosed with the memorandum dated 22.6.1993 proposing to proceed against the applicant under rule 8 of the Rules of 1969. The applicant did not submit any reply to the charge memo. The enquiry officer came to be appointed on 7.7.1993. Inasmuch as, the primary charge against the applicant was of his having lost mental balance and becoming insane, it is conceded position that the enquiry officer directed the applicant to appear before the medical board so constituted to assess his mental condition, but he failed to appear before the board on any of the eight occasions he was asked to appear. It rather appears that the applicant had called in question the order of the enquiry officer directing him to appear before the medical board. Available on records is an order passed by the Honble Supreme Court dated 8.10.1993 in WP(C) No.509/1993 filed by the applicant, which reads as follows:
In our opinion Government is entitled to require Government Servant to appear before a Medical Board in the circumstances such as those that obtain in this case. Learned counsel for the petitioner however says that the petitioner should not be arrested and forced to appear before the Board. This apprehension is allayed in the averments in para 3 of the counter affidavit in which the Government states:
That it is clarified that the allegations of the Petitioner that he is sought to be apprehended and produced before the Medical Board is wholly untrue. Indeed, there is a Government decision to examine him by the Medical Board, but there is no direction to arrest him to produce before Medical Board. In view of this the apprehension of the petitioner is not justified. But what should follow, if the petitioner declines to submit himself to medical examination is a matter for the Government to decide in accordance with law and the Government shall be free to do so.
With these observations, the writ petition is dismissed. It further appears from the records of the case that the applicant did not participate in the enquiry and ignored all communications addressed to him by the enquiry officer for participation therein. The enquiry officer, however, treated all letters addressed to him by the applicant as written statements of defence, and took the same into consideration. On 8.12.2004, the enquiry officer submitted his report holding all articles of charge proved, except article of charge III, on which his findings are as follows:
Charge number three cannot be considered as documents are non existent. It can be speculated that such documents might have existed when it was inquired from Nitin Chandra, he stated that documents of charge number three do not exist. Mr. Mahajan also did not discuss this charge in his written statements. We may at this stage itself mention that the conclusion arrived at by the enquiry officer is that the applicant is totally insane, and in view of his total insanity he is unfit for being retained in service. After the State Government tentatively accepted the findings contained in the report of the enquiry officer, copy of the same was sent to the applicant asking him to submit his representation. No reply was, however, given by the applicant. On further consideration of the matter, the State Government recommended to the Central Government vide letter dated 20.6.2006 that the penalty of compulsory retirement be imposed on the applicant considering the gravity of the proven charges. It was tentatively decided with the approval of the competent authority in the Central Government to accept the recommendation of the enquiry officer to impose the penalty of compulsory retirement upon the applicant. The matter was then referred to UPSC for its advice, which made detailed observations with respect to all the charges. It is pertinent to mention that in the view of UPSC, even charge number III stood proved. The observations made by UPSC on that behalf read as follows:
The Commission observe that although, the IO held this charge as not proved, it can be seen that time and again the MOS has accused the Development Commissioner of being mentally sick as in Charge I and II. The fact that he filed a case against the Development Commissioner under the Mental Health Act, 1987 proves the charge. In consideration of the entire material, of course, including the advice of UPSC, the order of compulsory retirement dated 15.10.2007 came to be passed.
3. The respondents have filed their reply and contested the cause of the applicant.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The only contention raised by Dr. Surat Singh, learned counsel representing the applicant is that when the enquiry officer had returned a finding in favour of the applicant, insofar as charge number III is concerned, the disciplinary authority without recording a note of dissent and communicating it to the applicant along with the report of the enquiry officer, could not hold the said charge as well to be proved. This is not the factual position and had to be so admitted during the course of arguments, as surely and admittedly, the disciplinary authority did not record any note of dissent and accepted the report of the enquiry officer as such. The tentative view of the disciplinary authority, even when charge number III stood not proved, was to visit the applicant with the punishment of compulsory retirement. What we find is that it is only UPSC which has returned a finding of guilt insofar as, charge number III is concerned, and the disciplinary authority has only accepted the said finding. Confronted with the position aforesaid, Dr. Surat Singh would contend that UPSC had no jurisdiction whatsoever to return a finding on charge number III by reversing the finding given on that behalf by the enquiry officer, and that it had only an advisory role to play. It is further urged that the disciplinary authority was not bound to accept the advice of UPSC. We would have gone into the aspects of the case as referred to above, but in the context of the facts and circumstances of the present case, we are of the view that there would be no need to go into the same. A positive finding that the applicant was totally insane has been returned by the enquiry officer. The disciplinary authority agreed with the same, and despite the fact that charge number III was not proved, and while taking the same to have not been proved, it was the opinion of the disciplinary authority that the applicant would need to be compulsorily retired. The opinion or advice of UPSC has made no difference whatsoever in the case. The plea raised by the learned counsel may have required close examination, if perhaps in considering the advice of UPSC, even as regards charge number III, the disciplinary authority might have taken a view to give harsher punishment to the applicant, like removal or dismissal from service. Such is not the case in hand. That apart, insofar as insanity of the applicant is concerned, the same has been proved under other charges, and the charge number III would have been only an extra lever to prove the same, as of course, also that the applicant was wrongly calling others as insane. In the matter of punishment it would not have made any difference. Further, even though it has not been mentioned by the disciplinary authority in its order, but we may mention that the applicant was asked to appear before a duly constituted medical board on eight occasions. He refused to appear before the medical board. Instead, he challenged the order of the enquiry officer calling upon him to appear before the medical board, and his writ on that behalf was dismissed by the Honble Supreme Court by specifically observing that if the applicant had declined to submit himself to medical examination, it would be a matter for the Government to decide in accordance with law, and that the Government would be free to do so. Available on records is thus, yet another reason to hold the applicant as insane, i.e., his non-appearance before the duly constituted medical board, which would necessarily lead to an irresistible presumption that had the applicant appeared before the medical board, the opinion of the board would indeed have been that the applicant is insane.
5. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/