Central Administrative Tribunal - Bangalore
N D Prasad vs M/O Information And Broadcasting on 6 March, 2024
1 OA 118/2023/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00118/2023
DATED THIS THE 6TH DAY OF MARCH, 2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri N.D.Prasad,
S/o late N.D.Nagaraja,
Aged about 59 years,
Deputy Director (retired on 1.1.2021)
Dooradarshana Kendra,
NSD, AIR, New Delhi 110001.
Now residing at:
B0007, Brigade Plumeria-Meadows,
No.122, Saalu Hunase Village,
Udayapura Post, Kanakapura Road,
Bangalore Rural,
Karnataka-560082. ...Applicant
(By Advocate Shri Raghavendra G.Gayatri)
Vs.
1. The Union of India,
By its Secretary,
Ministry of Information & Broadcasting,
A-Wing, Shastri Bhawan,
New Delhi -110001.
2 OA 118/2023/CAT/BANGALORE BENCH
2. The Enquiry Officer & the Additional
Director General, PIB, Press Information Bureau,
Government of India,
Sir Visvesvaraya Kendriya Bhavan,
IV & V Floor, 1st Stage,
Domlur, Bangalore -560071. ...Respondents
(By Advocate Shri Vishnu Bhat for Respondents)
ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. To call for records and to issue a writ of Certiorari quashing the impugned department enquiry by way of Articles of Charges dated 31.08.2022 in reference No.C- 13011/3/2022-Vig. Passed by the 1st Respondent vide ANNXURE-A7.
3 OA 118/2023/CAT/BANGALORE BENCH b. To quash the impugned order dated 03.02.2023 in reference No.C-13011/3/2022-Vig./(i) passed by the 1st Respondent vide ANNEXURE-A9.
c. Direct the respondents to drop all further proceedings against the Applicant as the same is not maintainable.
d. Pass any other order or direction that this Hon'ble Tribunal deems fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that the applicant entered into service as Junior Grade Officer, I.I.S. Group B on 13.09.1991. He was promoted to the cadre of Senior Grade of I.I.S. Group B. The applicant was posted to work in the Doordarshan Kendra, Bangalore and promoted to the cadre of Junior time Scale of I.I.S., Group 'A'. Further he was promoted to Senior Time Scale of I.I.S. Group 'A' and worked at Dooradarshana Kendra, Bangalore from 30.12.2013 to 17.02.2020. The applicant was transferred to NSD, AIR, New Delhi as Deputy Director (News) on 02.03.2020. The applicant applied for 4 OA 118/2023/CAT/BANGALORE BENCH voluntary retirement on 01.10.2020. The competent authority forwarded the proposal for voluntary retirement of the applicant to Ministry of I&B, New Delhi confirming that there was no vigilance case either pending or being contemplated against the applicant and requested to consider the voluntary retirement. The approval of competent authority for voluntary retirement of the applicant, was conveyed vide order No.92/2020-IIS dated 10.12.2020 stating that the applicant shall retire with effect from 01.01.2021.
3. It is submitted that a notice dated 25.10.2021 was issued by the Director, News, Dooradarshana Kendra, Bangalore, alleging certain irregularities committed by the applicant while he was working as Assistant Director (N), DDK, Bangalore being one of the members of the e-Tender Committee. A reply dated 16.11.2021 was submitted by the applicant to the said notice stating that the e- Tender committee consisted of four members and whole tender process was dealt by the Administration Section headed by SAO/AO who are thorough with GFR rules and that the applicant's primary duties are to supervise the new bulletins. Applicant further 5 OA 118/2023/CAT/BANGALORE BENCH submitted that no notice was issued to the other members of the Committee, who actually took the decision in the matter. However, a Memorandum dated 31.08./05.09.2022 was issued initiating departmental proceedings against the applicant with Article of charge along with the statement of imputations of misconduct or misbehaviour in support of each article of charge, list of documents and list of witnesses. The applicant submitted a representation dated 11.10.2022 denying the charges and also clearly bringing to the notice of the first Respondent that the charges levelled against him is contrary to Rule 9(2)(a) and (b) of the Central Civil Services (Pension) Rules, 1972. But the first Respondent issued an order on 03.02.2023 appointing the Inquiry Officer to conduct the departmental proceedings against the applicant. Hence, this OA.
4. The arguments advanced by the learned Counsel, Shri Raghavendra G.Gayatri appearing for the applicant are three fold. Firstly, the charge memo has been issued to the applicant after four years of his voluntary retirement. Secondly, joint inquiry under Rule 18 of CCS (CCA) Rules, 1965, has to be held and as such the impugned charge memorandum issued to the applicant 6 OA 118/2023/CAT/BANGALORE BENCH alone is illegal. Thirdly, the action of the respondents in issuing charge memorandum to the applicant dispensing the initiation of disciplinary proceedings against the other members of the tender committee namely, Shri Niranjan, Deputy Director, Engineering and Shri K.V.Rajaram, Video Executive, is discriminatory. The charge memorandum issued to the other officers/officials as per the documents placed on record vide memo dated 14.02.2024 filed on behalf of the Respondents No.1&2 evinces the action initiated against them subsequent to the query made by this Tribunal regarding the action initiated against the other officers/officials involved in the committee or tender finalisation process.
5. Elaborating the arguments on these points, learned Counsel submitted that the entire responsibility of issuing e- tender and other procedure was handled by the Administrative Officer and applicant signed the same only as a Committee member in the interest of the office and smooth running of transport section. Further the Committee consisted of four members, the decision taken by the committee was also approved by the higher officers and while issuing the Article of charge dated 31.08.2022 all the 7 OA 118/2023/CAT/BANGALORE BENCH other committee members were left out without any reasons. As far as the Article of charge is concerned, the applicant has no individual role to play and all the decisions were taken by the Administrative Department as per the oral direction of the Head of Office, now after a lapse of more than four years, certain allegations were made and disciplinary proceedings are initiated, which is illegal, arbitrary and contrary to Rule 9(2)(a) and (b) of CCS(Pension) Rules, 1972. It is submitted that the charge framed against the applicant is vague and there is inordinate delay in initiating the enquiry against the applicant. Accordingly seeks for a direction to drop all further proceedings initiated against the applicant.
6. Learned Counsel Shri Vishnu Bhat representing the respondents submitted that the departmental proceedings were initiated with the approval of the competent authority after the retirement of the applicant vide memorandum dated 31.08.2022 as per the provisions of Rule 8 of CCS (Pension) Rules, 2021. The applicant as a member of duly constituted committee, committed irregularities and violated various provisions of General Finance 8 OA 118/2023/CAT/BANGALORE BENCH Rules (GFR). The irregularities had been committed between 8th July to 14th September, 2018, the date on which the decision to engage a particular Car rental for supply of hired vehicles for the year 2018-19 was taken by the duly constituted committee, of which the applicant was member and recommended the same along with other members of the Committee. The other officers who were the members of the committee, who were actively involved in the tendering process and were found involved in the irregularities committed in the tendering process were issued show cause notices and subsequently on the advice of the Central Vigilance Commission charge sheet has been issued. The representation dated 11.10.2022 submitted by the applicant on the charge sheet was duly considered by the competent authority and found that the applicant has failed to satisfactorily rebut the charges levelled against him. Therefore, with the approval of competent authority, inquiry authority was appointed to inquire into the charges levelled again the applicant. The applicant will be given all reasonable opportunities to present his case, during inquiry proceedings following the principles of natural justice. A memo is filed by the 9 OA 118/2023/CAT/BANGALORE BENCH learned Counsel producing the copies of the charge memorandum issued to the members of the committee entrusted with the working of the framing and execution of contract for the year 2018-19. Thus, the learned Counsel justifying the action of the respondents, seeks for dismissal of the OA.
7. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
8. The moot question that arises for our consideration is, whether the impugned charge memorandum dated 31.08.2022 (Annexure A7) and the appointment of inquiry authority as per Annexure A9 calls for interference by this Tribunal at this stage?
9. Statement of Article of charge framed against the applicant, Annexure-I to the charge memorandum dated 31.08.2022 reads thus:
"Article-I That the said Shri N.D.Prasad, while working as Assistant Director (N), DDK Bangalore was nominated as a member of the committee entrusted with the work of framing and execution of contract for hiring of Taxi for the 10 OA 118/2023/CAT/BANGALORE BENCH year (2018-19). Shri N.D.Prasad as member of duly constituted committee committed irregularities as:
a) Sufficient time was not allowed for submission of bids, in violation of rule-161(vi) of GFR, 2017.
b) Restrictive clauses i.e. distance criteria and ownership criteria were added through addendum issued on 06/08/2018 deliberately to favour one particular firm in violation of Rule 21(iv) of GFR, 2017.
c) The addendum was not published in the manner similar to original tender in violation of Rule 173(iii) of GFR, 2017.
d) To avoid the wide publicity of the tender the estimated cost was deliberately fixed much lower than Last purchase price in violation of CVC guidelines.
e) Provisions of NIT documents regarding ownership of vehicle was wrongly interpreted to reject the bids of some firms.
f) A particular car name - TATA Indica was indicated in the requirement in violation of Rule 144(i)(b) of GFR, 2017.
g) The tender was not properly advertised as it was not advertised on CPPP portal or GeM in violation of Rule 201(ii) of GFR 2017.
h) Rate at which tender was awarded more than approved rates in AIR Bangalore for the same year 11 OA 118/2023/CAT/BANGALORE BENCH i.e. 2018-19 & 2019-20. This is violation of Rule 21(ii) of GFR, 2017."
10. Statement of imputations of misconduct or misbehaviour in support of each article of charges framed against the applicant discloses violation of Rule 161 (vi) of GFR, 2017 in not providing sufficient time for submission of bids; Restrictive clauses issued through addendum similar to original tender in violation of Rule 173(iii) of GFR, 2017; the estimated cost was fixed much lower and ownership of vehicle was wrongly interpreted to reject the bids of some firms; A particular car name was indicated in the requirement and not properly advertised on CPPP in violation of Rule 144(i)(b), (v) and 201(ii) of GFR, 2017.
11. It is well settled that the challenge to the charge memo cannot be entertained in a routine manner. The power of judicial review in this regard has to be exercised sparingly. At this juncture this Tribunal cannot go into the merits or demerits of the charges framed against the applicant. The same has to be considered by competent disciplinary authority. The applicant should establish 12 OA 118/2023/CAT/BANGALORE BENCH his innocence participating in the process of enquiry contrarily he cannot rush to this Tribunal seeking for quashing of the charge memo itself. The Hon'ble Apex Court in the case of Union of India and others vs. Upendra Singh reported (1994) 3 SCC 357 has observed thus:
"6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing
13 OA 118/2023/CAT/BANGALORE BENCH Authority, Kamal v. Gopi Nath & Sons5. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"8) Judicial review, it is trite, is not directed against the decision but is confined to the decision-
making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
12. In the case of Union of India and another vs. Kunisetty Satyanarayana (2006) 12 SCC 28 it has been held thus:
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show- cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 14 OA 118/2023/CAT/BANGALORE BENCH 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge- sheet is that at that stage the writ petition may be held to be premature. 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 is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge- sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15 OA 118/2023/CAT/BANGALORE BENCH
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
13. In the case of Secretary, Ministry of Defence and others vs. Prabhas Chandra Mirdha (2012) 11 SCC 565, Hon'ble Apex Court has held thus:
"10. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court."
14. In the wake of the aforesaid judgments, it is clear that the charge sheet cannot ordinarily be quashed at an initial stage, as ascertaining the correctness or truth of the charge is the function of the disciplinary authority.
16 OA 118/2023/CAT/BANGALORE BENCH
15. Learned Counsel for the applicant fairly submitted that the first ground urged regarding the initiation of disciplinary proceedings after four years of the applicant's voluntary retirement does not survive for consideration, since the alleged irregularities shown in the charge memo relates to the period between 08.07.2018 to 14.09.2018 and the final tender awarded on 14.09.2018, Accordingly, this ground is not pressed. The entire challenge to the impugned charge memorandum is now made on the other grounds urged.
16. Learned Counsel submitted that holding common proceedings is mandatory requirement under Rule 18 of CCS (CCA) Rules, 1965. In support of the submissions, learned Counsel placed reliance on the judgment of Hon'ble High Court of Karnataka dated 15.02.2023 in the case Smt. Prem Latha Uppal vs. Canara Bank in Writ Appeal No.6228/2013, wherein the Hon'ble High Court has interpreted the word 'may' with reference to Regulation-10 of Canara Bank Officers, Employees (Discipline and Appeal) Regulation, 1976 dealing with common proceedings.
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17. Rule 18 of CCS (CCA) Rules, 1965 reads thus:
"18. Common Proceedings (1) Where two or more Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding."
18. In our considered view common proceedings may be taken where two or more Government servants are concerned, in any case, would not vitiate the issuance of charge memorandum against the applicant. Even after considering the explanation or the representation submitted by the applicant to the charge memorandum or considering the totality of the circumstances of the case, common proceedings may be proceeded with under Rule
18. That situation having not arisen, at this stage challenge made on this ground is premature and deserves to be negated.
19. Regarding the vague charges alleged, it is significant to note that the details of charges are made known to the applicant in 18 OA 118/2023/CAT/BANGALORE BENCH the Article of charge and statement imputations of misconduct or misbehaviour at Annexures-I & II to the impugned charge memorandum.
20. Regarding the third ground urged, no negative equality can be claimed on the ground of discrimination and bias. The allegation that the disciplinary proceedings were not initiated against the other committee members or initiated belatedly subsequent to the query made by this Tribunal, would not be a ground to quash the charge memo issued to the applicant, at this stage. The purpose of enquiry is to discern the truth. The onus is on the applicant to establish his innocence and disprove the charges. Banking upon the weakness of the administration, applicant cannot seek for quashing of charge memo.
21. Thus the grounds urged by the applicant are not convincing to quash the charge memo at this premature stage. It is well settled that the purpose of enquiry is to discern the truth. Truth is always invincible. In order to achieve this object, enquiry is necessary in the facts and circumstances of the case. It is open to 19 OA 118/2023/CAT/BANGALORE BENCH the applicant to put forth his defence in the inquiry proceedings and establish his innocence. Curtailing the disciplinary proceedings by quashing the charge memo at this stage would defeat the purpose of achieving the object of discerning the truth. Issuing a charge sheet does not infringe the right of the applicant. No adverse orders are passed affecting the rights of the applicant. Hence for the reasons aforesaid, we are not inclined to interfere with the charge memo impugned and all further proceedings including the appointment of Inquiry officer vide impugned order dated 03.02.2023.
22. Resultantly, OA stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.