Central Administrative Tribunal - Lucknow
Vijay Shankar Srivastava vs Union Of India on 21 November, 2023
CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 536 of 2013
Order Reserved on: 02.11.2023
Order Pronounced on: 21.11.2023
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Vijay Shankar Srivastava,
Aged about 69 years,
Son of Sri Shankar Sahai,
Resident of Flat no. 306,
Chandra Towers, Jopling Road, Lucknow.
.....Applicant
By Advocate: Mohd Mustafa holding brief for Shireesh Kumar
VERSUS
Union of India,
through the Secretary,
Ministry of Information and Broadcasting,
Government of India, "A" Wing, Shastri Bhawan,
New Delhi-110001.
.....Respondent
By Advocate: Smt. Prayagmati Gupta
ORDER
Per Hon'ble Mr.Pankaj Kumar, Member-Administrative
1. In this case, the applicant was proceeded against in disciplinary proceedings for major penalty and a penalty of withholding of 10% of the monthly pension for two years was imposed on him vide order dated 17.10.2013. Aggrieved, the applicant has preferred this OA seeking following reliefs:
(i) To quash the order dated 17.10.2013 as contained in annexure no. A-12 to this original application and direct the respondents to finalize his monthly pension and release the amount of arrears of retiral dues such as gratuity, leave encashment etc.along with interest @ 18% from the date of retirement upto the date of actual payment.
(ii) To direct the respondents to allow the amount of TA/DA to the applicant as per his entitlement for the expenses incurred by him to attend enquiry proceeding Page 1 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors from Lucknow to Patna and vice versa along interest @ 18% from the date of accrual upto the date of actual payment.
(iii) Any other order which is deemed just and proper in the nature and circumstances of the case be also passed in favour of the applicant in the interest of justice along with the cost of this original application.
2.1 The factual matrix of the case is that the applicant was initially appointed to the post of Farm Radio Officer in 1973, under the Ministry of Information and Broadcasting, Government of India. He retired from service on 31.08.2004. A few months before his retirement, the applicant was served a memorandum of charges dated 13.05.2004 under rule 14 of Central Civil Services (Classification, Control & Appeal) Rules 1965. The charges related to passing of false medical bills worth Rs. 3,19,794/- in the year 1991 when he was working as Station Director in All India Radio in Darbhanga district. 2.2 The enquiry report was submitted on 14.10.2008 and was supplied to the respondent vide memorandum dated 03.05.2010. The applicant submitted objections relating to the enquiry report. Vide O.M. dated 16.11.2012, the respondent conveyed his disagreement along with reasons and findings of the enquiry officer to the applicant. The applicant submitted objections against the reasons for disagreement also vide letter dated 30.11.2012. The disciplinary proceedings culminated with imposition of the penalty of withholding 10% of pension for a period of two years on the applicant vide order date 17.10.2013 which has been challenged in this OA. 3.1 It is the contention of the applicant that the evidences cited in support of the charges such as the FIR, report dated 18.07.2000, report dated 03.03.2000 and audit query dated 11.05.1992 were not admissible in a departmental enquiry as the primary evidences cited to support the charges as per the law laid down by the Hon'ble Supreme Court in Nirmala J Jhala Vs. State of Gujarat 2013 (4) SCC 301. The remaining evidences were the letters dated 05.03.1993, 01.03.1993, 03.04.1993 and 02.12.1998 and all the documents are subsequent to the period from January 1991 to March 1991 to which the charge is related. It is further submitted that had these documents Page 2 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors been in existence during the period January 1991 to March 1991 then the allegations of misconduct could not have been made out against the applicant. 3.2 The applicant has questioned the propriety of the institution of the enquiry after a delay of about 14 years on the verge of his retirement. 3.3 It has been contended that the copies of the evidences relied upon in support of the charges were not furnished to the applicant and that he was not even informed as to which witness was to be examined for what purpose (paragraph 4.9 of the OA).
3.4 Vide order dated 04.03.2005, i.e., after more than 6 months of the retirement of the applicant and after 10 months from 13.05.2004, when the enquiry was instituted, the enquiry officer was appointed. 3.5 The enquiry report dated 14.10.2008 shows that the enquiry officer found the applicant guilty on the basis of conjectures and surmises alleging non-compliance with the instruction and guidelines to prevent abuse of medical reimbursement facilities issued by Department of Health vide O.M dated 21.08.1974. The enquiry officer, regarding issues no. E and G, held the applicant guilty but the findings recorded by the enquiry officer were not based upon the documents or the evidences cited in support of charges. Findings by the enquiry officer were recorded on the basis of those document which were neither shown nor confronted to the applicant as well as were never cited as evidences to support the charges and as such the enquiry report was vitiated due to consideration of extraneous material. 3.6 The applicant submitted objections against the enquiry report and after much delay on 30.11.2012, the applicant was served upon an order dated 16.11.2012 whereby the respondent had expressed his disagreement with the findings of the enquiry officer without assigning any reason for disagreement and without basing the disagreement upon any existing material and facts. The disciplinary authority did not afford an opportunity of personal hearing to the applicant in the event of difference of opinion with the enquiry Page 3 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors report thus violated the law laid down in Yoginath D. Bagde Vs. State of Maharashtra 1999 (7) SCC 739.
3.7 After retirement, an officer can only be visited with an adverse order if he is found guilty of grave misconduct or causing pecuniary loss to the government but in the present matter neither the applicant was held guilty of grave misconduct nor for causing pecuniary loss to the government as such no adverse order could have been passed against the applicant. 3.8 The Union Public Service Commission (UPSC) also did not apply its independent mind and in a mechanical manner, recorded its approval to the proposed reduction of monthly pension by 10% for a period of two years. 3.9 The applicant was not informed of any progress for a long time and ultimately on 17.10.2013, the order of reduction of pension of the applicant by 10% for a period of two years was passed. The order dated 17.10.2013 is non- speaking and has been issued without considering the charge and the reply submitted by the applicant in his defense.
3.10 The applicant was not paid TA/DA as admissible. Due to non- payment of TA/DA the applicant was prevented to defend himself in the enquiry proceedings.
3.11 The chronological sequence of alleged enquiry itself establishes that the delay in institution and conclusion of enquiry is attributable to the respondent and the delay has not been caused by the applicant. The subject matter of the charge sheet is related to the year 1991 enquiry was instituted on 13.05.2004 but was concluded with a delay of six years by the enquiry officer. The enquiry officer submitted the enquiry report on 14.10.2008 and the reason for disagreement was issued after a delay of four and a half years on 16.11.2012. Although the objections against the difference of opinion were submitted on 21.12.2012, the final order was passed on 17.10.2013. Such delay in conclusion of enquiry itself shows the prejudice of the respondent towards the applicant. The order dated 17.10.2013 deserves to be set aside. Page 4 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors 4.1 The respondents, on the other hand, contend that the Directorate General, All India Radio, referred a case of complaint against the applicant who was then posted as Station Director, All India Radio (AIR), Darbhanga, regarding the irregularities committed by him during his tenure as Head of Office inter alia in the matter of payment of medical bills to the tune of Rs. 3,19,794/- at the end of March, 1991.
4.2 The respondents examined the preliminary enquiry report in the matter submitted by Shri V.K. Sharma, Superintending Engineer, AIR, Gorakhpur and, agreeing with the findings of the inquiry, the case was referred to Central Vigilance Commission (CVC) on 01.09.1994 who advised initiation of major penalty proceedings against the applicant and Shri V.K. Jha, Accountant, AIR, Darbhanga.
4.3 In the meanwhile, CBI asked for, and was supplied with, the copy of the preliminary enquiry report vide letter dated 27.04.1995. The CBI informed the respondents that RC 28(A)/95-Pat dated 07.8.1995 had been registered against Shri M.N. Biswas, the then Drawing and Disbursing Officer, Shri V.K. Jha, Accountant and Shri Bishnu Das, Clerk Grade-I, AIR, Darbhanga, alleging that they had entered into a criminal conspiracy with each other and with unknown others for preparing false and bogus medical claims. Since, the CBI was investigating into the same allegation for which the CVC had advised for initiating disciplinary proceedings for major penalty against the applicant and Shri V.K. Jha, Accountant, AIR, Darbhanga, the matter was examined by the respondents in terms of para 3.15 of Chapter III of Vigilance Manual and a reference was made to CVC for their advice whether the case is to be pursued departmentally or CBI's reply might be awaited. The CVC, on 23.04.1997, advised the respondents to initiate departmental action regarding medical claims after the completion of the CBI inquiry. Further, as per the advice of CVC, the CBI was requested vide letter dated 22.08.1997 to investigate this aspect in respect of the applicant also. In respect of the case relating to medical claim, the CBI vide their communication dated 26.03.2001 forwarded Page 5 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors their report which was examined by the respondents and sanction for prosecution accorded on 18.02.2002. Accordingly, the applicant was charge- sheeted on 30.07.2002 by CBI under Section 120 B r/w 420, 467, 468 I.P.C. and Section 13(2) r/w 13(1)(d of Prevention of Corruption Act, 1988. 4.4 The applicant was charge-sheeted for major penalty proceedings vide memorandum dated 13.05.2004. The applicant vide his representation dated 23.07.2004 requested for listed documents and other relevant documents. The set of listed documents and statement of witnesses were received by the applicant on 21.10.2004. Inquiring Authority and Presenting Officer were appointed vide orders dated 04.03.2005. The applicant represented on 02.03.2005 regarding payment of retirement benefits, and subsequently filed OA No. 267 of 2006 challenging the charge-sheet and also praying for payment of retirement dues with interest.
4.5 The delay in preliminary hearing has been explained by the Inquiring Authority in his report. The Inquiring Authority had issued notice dated 25.05.2005 to applicant asking him to appear on 21.06.2005 for preliminary hearing but he did not turn up. Again letter dated 03.07.2006 was issued for attending the preliminary hearing on 12.07.2006. Another letter was sent on 13.09.2006 for attending the hearing on 17.10.2006 through Staff Training Institute (Programme) [STI (P) hereinafter], Lucknow, but the applicant did not turn up. Again a letter was issued to the applicant on 14.11.2006 for appearing in preliminary hearing on 20.12.2006. In this regard, STI (P), Lucknow, intimated that the applicant had gone to Mumbai for treatment of his wife and likely to come back in one and half month. Again a letter was issued on 16.01.2007 and received by the applicant through Doordarshan Kendra, STI (P) on 23.01.2007 for attending the preliminary hearing on 20.02.2007, on which date the applicant did not turn up. Again a letter was issued on 26.04.2007 which was received by the applicant through Director, Doordarshan Kendra, STI (P), Lucknow on 03.05.2007 for attending the preliminary hearing on 29.05.2007 but the applicant did not turn up. Letter Page 6 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors was issued to the applicant on 15.06.2007 for attending the preliminary hearing on 29.06.2007 as last and final date. The applicant informed that he will not attend the hearing on 29.06.2007 as he has to attend the marriage of his relative at Ranchi on 29.06.2007. Finally, the applicant appeared for preliminary hearing on 12.08.2007 against letter issued on 29.06.2007. 4.6 The Inquiring Authority completed enquiry on 05.04.2008 and submitted his report vide letter dated 14.10.2008. The Disciplinary Authority, after considering the inquiry report and evidences brought on record, tentatively decided on 10.11.2009 to disagree with the findings of the Inquiring Authority contained in the part VIII of the enquiry report in respect of ingredients no. (A), (B), (C), and (D) and to agree with the findings in respect of ingredients no. (E) and (F) of the article of charge.
4.7 As provided under Rule 15(2) of CCS (CCA) Rules, 1965, enquiry report along with a copy of CVC's 2nd stage advice was forwarded to the applicant on 03.05.2010 and the applicant submitted his representation dated 21.05.2010 which was considered and rejected by the Disciplinary Authority with the tentative decision to impose a penalty of suitable cut-in-pension under Rule 9 of CCS (Pension) Rules, 1972 and the matter was referred to UPSC on 23.05.2011 for advice. UPSC returned the case on 09.06.2011 for want of authenticated copies of prosecution exhibits and legible copies of some other documents. The case was again referred to UPSC on 17.07.2012 to tender their advice based on available documents, but UPSC returned the case on 19.07.2012 reiterating their earlier requirements and also for want of original copy of reply dated 10.06.2004 of the applicant on charge-sheet. After obtaining authenticated documents from CBI, the case was again referred on 11.10.2012 to UPSC for their advice. UPSC again returned the case on 02.11.2012 pointing out that reasons for disagreement were not communicated to the applicant whereupon a copy each of Inquiry Report and CVC's 2nd stage advice along with "Reasons for Disagreement" were forwarded to the applicant on 16.11.2012, again calling representation from the Page 7 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors applicant thereon as per Rule 15(2) of CCS (CCA) Rules, 1965. After examining the applicant's representation dated 21.12.2012, the case was again referred to UPSC on 10.06.2013 and the UPSC, vide their letter dated 29.08.2013, advised imposition of penalty of withholding of 10% of the monthly pension otherwise admissible to the applicant for two years.
4.8 The Disciplinary Authority observed that the applicant, while posted as Station Director, AIR, Darbhanga and functioning as Head of the Office during the year 1990-91, was overall in-charge of the station and was authorized to pass claims of medical reimbursement of employees of AIR, Darbhanga. The applicant was fully aware about the problem of submission of false medical bills by employees of AIR, Darbhanga. There was a drastic increase in medical reimbursement payment during 1990-91. As per the audit report, which is the listed document, speaks about drawing of Rs 3,23,820/ - for 12 medical bill in the month of March, 1991. The applicant, in his representation dated 20.12.2012, has himself admitted countersigned such bill amounting Rs 1,16,473/-, whereas during the year 1989-90 and also in years 1991-92 and 1992-93, payments of medical reimbursement were Rs 3,022/- Rs 6,999/- and 'nil' respectively. Thus on the basis of preponderance of probability it is proved that there had been drastic increase in payment of medial reimbursement during the year 1991 and payments were passed during the month of March, 1991 itself. It is also proved that the chemist shops from where purported to have been medicine purchased were not authorized to sell medicines, and Dr. C.N. Jha, who had been shown as Authorized Medical Practitioner (AMA) was in fact not posted in Darbhanga during the period January 1990 to March, 1991 and therefore could not have been AMA as per CS (MA) Rules. Therefore, it was clear that there was something wrong with the claims of medical reimbursement. However, bills were passed without making proper enquiry and without paying attention to the fact that there had been drastic increase in the medical claim compared to previous year. The applicant being the overall in-charge of the station failed in Page 8 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors his duties to observe that there had been drastic increase in the claim of medical reimbursement whereas there was no payment towards medical claims since 1989 in AIR, Darbhanga. He also failed to put up a mechanism to check the license of the chemist shops and status of AMA. Taking into the account the relevant evidence brought on record and the facts and circumstances of the case and advice tendered by UPSC, Disciplinary Authority came to conclusion that article of charge stands proved except element of charge that charged officer passed bills amounting Rs 3,19,794 / - within two days. Thus, to meet the ends of justice, the Disciplinary Authority imposed a penalty of 10% cut-in-pension for a period of two years otherwise admissible to the applicant vide order dated 17.10.2013. 4.9 In regard to TA/DA, it has been stated that the applicant was entitled to 2nd A.C. train fare. Twice, on 0.11.2007 and on 22.11.2007, the applicant visited Patna by 2nd A.C. train for attending the inquiry and towards claim submitted by him, payment of 2nd A.C. train fare was made to him accordingly. It is further stated that TA/DA claims of the applicant have already been settled by DTI, Lucknow, as per rules vide letter dated 27.03.2008.
4.10 In regard to the claim of the applicant that Enquiring Authority was junior to him, it is stated that the Inquiry Officer and the applicant belonged to different cadres/services. The date of appointment of the applicant in the Senior Time Scale (STS) 01.08.1988 whereas that of the Inquiry Officer in the STS was 01.10.1983. Thus it cannot be said that the Inquiry Officer was junior to the applicant.
5.1 Heard learned counsels for the applicant and respondents. 5.2 Learned counsel for the applicant has contended that the delay in institution and conclusion of enquiry renders the punishment order bad [2005(6) S.C. 636, P.B. Mahadevan Vs. M.D., Tamil Housing Board and 1998 (4) S.C. 154, State of Andhra Pradesh Vs N. Radhakishan]. Since no Page 9 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors allegation or finding of grave misconduct or causing pecuniary loss to Government was leveled or proved hence no reduction of pension could have been ordered [Rule (6) of the All India Services (Death-Cum-Retirement Benefit) Rules 1958 and 2007 (3) LBESR 663 (Alld), Bhagwati Prasad Verma Vs. State of U.P.]. Further, in the event of difference of opinion by the disciplinary authority report an opportunity of personal hearing is a must [1998 (7) S.C.C. 84, Punjab National Bank Vs. Kunj Bihari Mishra; 1999 (7) S.C.C.739, Yoginath D. Bagde Vs State of Maharashtra; 2006(9) S.C.C. 440, Lav Nigam Vs. Chairman & M.D., ITI Ltd.]. Carelessness is not a misconduct for which a punishment may be awarded [2017(2) UBLEC2673, State of U.P. Vs Raj Mani Singh; 2020 (2) SCC 295 Sadhna Chaudhary Vs State of U.P.]. Non-payment of TA/DA to the delinquent employee to participate in enquiry amounts to denial of opportunity thus punishment is bad [1999(3) S.C.C.679, Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd.; Office Memorandum dated 20.11.1967]. Evidences cited in support of charges is not admissible in a departmental enquiry [2009(2) S.C.C. 570, Roop Singh Negi Vs. Punjab National Bank; 2013(4) S.C.C., Nirmala J. Jhala Vs. High Court of Gujrat].
5.3 On the other hand learned counsel for respondents has drawn our attention to two judgments in support of respondents' contentions [Civil Appeal Nos.7939-7940 of 2022 arising out of Petitions for Special Leave to Appeal (Civil) No. 3524-25 of 2022, Union of India And Others Vs Subrata Nath and Civil Appeal Nos. 7941-7942 of 2022 arising out of Petitions for special Leave to Appeal(Civil) No. 11021-22 of 2022, Subrat Nath Vs Union of India and others; Appeal (Civil) 7240-7241 of 2003, U.P. State Textile Corporation Ltd. Vs P.C. Chaturvedi and Ors].
6.1.1 We begin our analysis with the issue of delay in disciplinary proceedings. Delay is neither fair to employee nor to the employer. Unexplained delay raises doubts about the fairness of the process. This cannot arguably be put in better words than the following observation of Hon'ble Page 10 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors Supreme Court in State of Punjab and Others Vs. Chaman Lal Goyal 1995 (2) SCC 570:
"10. Now remains the question of delay. There is undoubtedly a delay of five and half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegation of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of the circumstances. In other words, the court has to indulge in a process of balancing..."
(emphasis supplied) 6.1.2 The following extract from State of Andhra Pradesh Vs. N. Radhakishan JT 1998 (3) SC 123 expounds on delay further:
"19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with rules. If he deviates from this path he is to suffer a penalty prescribed. Normally disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations."
(emphasis supplied) Page 11 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors 6.1.3 There has undoubtedly been considerable delay in this case:
Memorandum of charges was issued on 13.05.2004, more than 13 years after the events of January to March 1991 to which the charges relate; inquiry report was submitted on 14.10.2008, and punishment was imposed on the applicant on 17.10.2013, after a gap of more than 22 years since the incident occurred. The question, therefore, is whether the delay is explained and whether the explanation is justified.
6.1.4 We note that a preliminary inquiry was conducted and its findings were referred to CVC on 01.09.1994. In the meantime CBI also registered a criminal case in the matter on 07.08.1995. The CVC, on 23.04.1997, advised the respondents to initiate departmental action regarding medical claims after the completion of the CBI inquiry. CBI forwarded their report on 26.03.2001 based on which prosecution sanction was given on 18.02.2002 and the applicant charged under the criminal case on 30.07.2002 by CBI. Thereafter, memorandum of charges was issued on 13.05.2004 and the Inquiry Authority appointed on 04.03.2005. Inquiry report was submitted on 14.10.2008, after a gap of more than 3 years. Initially, the inquiry was held up due to non availability of the applicant as brought out in paragraph 4.5 above. The Inquiry Officer, in his report, explained the delay in concluding the inquiry also to 15 other inquiries he was entrusted with, apart from certain other minor factors. The delay between submission of inquiry report and imposition of punishment appears to have occurred due to disagreement of the Disciplinary Authority with the findings of inquiry and the insistence of UPSC on observing proper procedure, factors that we will examine in subsequent paragraphs.
6.1.5 Learned counsel for the applicant has drawn our attention to P.B. Mahadevan (supra) and State of Andhra Pradesh (supra). In P.B. Mahadevan, the irregularity came to notice due to delayed audit report, disciplinary proceedings were delayed even as the officer proceeded against had retired, and the Apex Court found the explanation for delay only an Page 12 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors afterthought. In State of Andhra Pradesh, the Apex Court found several deficiencies in the disciplinary proceedings, and on the issue of delay, made the observation: 'It is nobody's case that the respondent at any stage, tried to obstruct or delay the enquiry proceedings', and upheld quashing of charge memoranda by the Tribunal. We find that the facts and circumstances of these cases are substantially different from the case at hand.
6.1.6 Our conclusion on the issue of delay in disciplinary proceedings is that the delay is adequately explained; that a major part of it has occurred as criminal proceedings had been initiated; and while the respondents could have expedited these proceedings at various stages, the applicant's hands are not clean either as it was his non availability which contributed to the delay in the initial stage of the inquiry.
6.2.1 Having dealt with the issue of delay in the disciplinary proceedings, we now turn to the issues raised by the applicant with regard to the process of inquiry, that is, (i) evidences cited in support of the charges such as the FIR, report dated 18.07.2000, report dated 03.03.2000 and audit query dated 11.05.1992 were not admissible in a departmental enquiry as the primary evidences to support the charges as per the law laid down by the Hon'ble Supreme Court in Nirmala J Jhala (supra); (ii) recording of findings by the enquiry officer on the basis of those document which were neither shown nor confronted to the applicant as well as were never cited as evidences to support the charges thereby vitiating the inquiry by consideration of extraneous material; (iii) the enquiry officer, regarding issues no. E and G, held the applicant guilty but the findings recorded by the enquiry officer were not based upon the documents or the evidences cited in support of charges.
6.2.2 With regard to the issue (i) raised in the sub-paragraph above, the following observations made by the Apex Court in Nirmala J Jhala are relevant:
28. The chargesheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Page 13 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors Charge No. 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant.
There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant/accused or Shri C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of information in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non- observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance.
6.2.3 The crux of the issue in Nirmala J Jhala is that no material which is part of the preliminary inquiry can be used in the regular inquiry without incorporating it the memorandum of charges so that the officer proceeded against has a fair chance of rebuttal as per principles of natural justice. A perusal of the memorandum of charge issued vide O.M. dated 13.05.2004 shows that there is only one article of charge (Annexure-I of O.M. ibid) and the list of 8 documents by which the said article of charge is proposed to be sustained is provided at Annexure-III of the O.M. which includes the FIR, report dated 18.07.2000, report dated 03.03.2000 and audit query dated 11.05.1992.
6.2.4 The next issue raised is recording of findings by the enquiry officer on the basis of those document which were neither shown nor confronted to the applicant as well as were never cited as evidences to support the charges thereby vitiating the inquiry by consideration of extraneous material. A perusal of inquiry report (Part-V) shows that copies of the 8 documents listed at Annexure-III of O.M. dated 13.05.2004 were provided to the applicant. In regard to element C of the charge of allowing various medical bills amounting to Rs. 3,19,794/- within two days, the Inquiry Officer recorded:
"The prosecution has not produced any claim to prove this charge. However, Charged Officer gave requisition for all seventy five claims and twelve bills since year 2004 but the same has not been provided. In February 2008 claims have been supplied on demand of Charged Officer as additional defence documents, was not authenticated on each and every page. Hence copies of the claims documents has not been accepted by Charged Officer."Page 14 of 28
CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors It is observed that this aspect has also been dealt with by UPSC in paragraph 4.1.3 of their advice in the following manner:
"4.1.3 Regarding passing of these bills within a period of two days, the Commission observe that the requisite bills could not be produced during disciplinary proceedings and there is also nothing on record which leads to conclusive view about the allegations. In the absence of these documents, the element of charge is not proved."
Finally, the Disciplinary Authority, in the impugned order dated 1.10.2013 has covered this aspect as follows:
"WHEREAS after taking into account the relevant evidence brought on record and the facts and circumstances of the case and advice tendered by UPSC, Disciplinary Authority has come to the conclusion that article of charge stands proved except element of charge that charged officer passed bills amounting to Rs. 3,19,794/- within two days."
We note that three witnesses were examined in the enquiry in support of various elements of the charge (Part VII of the enquiry report). In view of the foregoing, it we are unable to conclude that the inquiry has been vitiated or has caused prejudice to the applicant.
6.2.5 Another contention of the applicant is that the enquiry officer, regarding issues no. E and G, held the applicant guilty but the findings recorded by the enquiry officer were not based upon the documents or the evidences cited in support of charges.
With regard to element E relating to purchase of medicines from medical shops without authorized licences, the Inquiry Officer recorded as follows:
"In view of the letter given by Dr. D. K. Raman during 1993, M/s Prasad Medical Hall, Dharbhanga, M/s Shyama Medical Hall, Benta Chowk, Laheriasarai, Darbhanga, and M/s Sri Durga Pharmacy, Hospital Road, Darbhanga were not authorized to sell medicines as they had no valid licences.
Head of Office failed in his duty as he had not made any mechanism to check licence of chemists/druggists. There was no payment towards medical claims since 1989. It was very much essential for HOO to know status of Authorized Medical Attendants in the city and licences of chemists/druggists before accepting claims payment. Here he failed in devotion to duty as HOO."Page 15 of 28
CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors The three letters of 1993 by Dr. Raman relied upon by the Inquiry Officer are listed at serial numbers 5 to 7 of the list of documents (Annexure-III) of the memorandum dated 13.05.2004.
6.2.6 The finding of Inquiry Officer in regard to element E relating to entertaining medical claims citing Dr. C. N. Jha as Medical Attendant who was not posted during 1990-92 in Darbhanga Medical College and Hospital is as follows:
"Letter from Superintendent, Darbhanga Medical College clearly indicates that Dr. C. N. Jha was not posted at DMCH during January 1990 to March 1991. This fact is accepted. Dr. C. N. Jha cannot be AMA in terms of Rule 2(a) of CS(MA) Rules as he was not posted in Darbhanga. So reimbursement against treatment of claimants for whom Dr. C. N. Jha issued certificate 'A' is totally wrong.
HOO failed to take steps to ensure that government servants are made fully aware of the names and designations of the authorized medical attendants and a list of such authorized medical attendance could be obtained direct from the State administration's Medical Officer concerned."
Here, we find that the letter of Superintendent DMCH relied upon by Inquiry Officer is listed at serial number 8 of the list of documents (Annexure-III) of the memorandum dated 13.05.2004. Also witness (SW-4) corroborated the evidence.
6.3.1 The next issue for our consideration is that the disciplinary authority did not assign any reason for disagreeing with inquiry report and also did not afford an opportunity of personal hearing to the applicant as required as per the law laid down in Yoginath D. Bagde (supra).
6.3.2 A perusal of case records brings out that the disciplinary authority disagreed with the findings of the inquiry in elements A, B, C and D of the article of charge. No disagreement was expressed with regard to findings on elements E and F. A copy of the inquiry report was sent to the applicant on 11.05.2010 (Annexure-8 of OA). Subsequently, when the case was referred to UPSC for advice, it was returned by UPSC pointing out that reasons for disagreement were not communicated to the applicant. Thereupon, reasons of disagreement were disclosed to the applicant vide O.M. dated 16.11.2012 Page 16 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors calling for his representation (Annexure-9 of OA). The disagreement was expressed in the following terms:
"Ingredient (A): The lapse on part of CO is not just the drastic increase in medical claims in the year 1990-91, it is the false medical bills which were passed without making proper enquiry. The problems prevailing at the Station is no excuse for committing irregularities specially when govt. money was involved. This should have been brought to the notice of Directorate/Ministry. This part of the charge thus stands proved against the CO.
Ingredient (B): Though there is no limit on the expenditure, the drastic increase in medical reimbursement indicated something wrong with medical reimbursement. The audit query (11.05.1992) was made a listed document in the charge sheet. Hence this charge stands proved.
Ingredient (C): In this connection, it is submitted that DG AIR were requested to provide the documents requested by the Presenting Officer. However, it appears that they have not provided the documents to the PO. CVO, Prasar Bharti was requested to fix responsibility in the matter vide this Ministry's I.D. Note No. C-15015/1/2001- Vig. (Part) dated 08.04.2009. Since the requisite bills could not be produced during the enquiry, this ingredient of charge may be dropped.
Ingredient (D): There is documentary evidence that bills were passed making without proper enquiry. Replacing of bills by certain staff members appears to be an afterthought. Passing bills of huge amount that too within a short time indicates that bills were passed in a hurry without making any enquiry. Hence this charge stands proved."
The contention that reasons for disagreement with the enquiry report were not given is not borne out from the above.
6.3.3 The other issue raised with regard to disciplinary authority's disagreement with the findings of the enquiry officer is that the opportunity of personal hearing was not afforded to the applicant as required as per the law laid down in Yoginath D. Bagde. Relevant parts of this judgment having a bearing on the present case are extracted below:
"In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and Page 17 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty' by the Inquiring Authority, is found 'guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.
....Recently, a three-Judge Bench of this Court in Punjab National Bank & Ors. vs. Kunj Behari Mishra (1998) 7 SCC 84 AIR 1998 SC 2713, relying upon the earlier decisions of this Court in State of Assam vs. Bimal Kumar Pandit (1964) 2 SCR 1 AIR 1963 SC 1612; Institute of Chartered Acountants of India vs. L.K. Ratna & Ors. (1986) 4 SCC 537 as also the Constitution Bench decision in Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors. (1993) 4 SCC 727 and the decision in Ram Kishan vs. Union of India (1995) 6 SCC 157, has held that :
"It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
The Court further observed as under:
"When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before Page 18 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors the disciplinary authority before final findings on the charges are recorded and punishment imposed."
The Court further held that the contrary view expressed by this Court in State Bank of India vs. S.S. Koshal 1994 Supp.(2) SCC 468 and State of Rajasthan vs. M.C. Saxena (1998) 3 SCC 385 was not correct.
In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard"
would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution."
(emphasis supplied) Keeping in view the above, we find ourselves in agreement with the learned counsel for the applicant to the extent that the ratio decidendi in Yoginath makes it abundantly clear that even when rules do not provide so, an opportunity for hearing should be afforded to the delinquent officer by the disciplinary authority when the disciplinary authority differs with the finding of the enquiry that the charges against such officer have not been proved. The question which arises is whether the applicant raised this ground earlier, because if this ground was not raised earlier, bringing it up in this lis would attract the bar imposed by the principle of constructive res judicata. We discuss this aspect in the following sub-paragraph.
Page 19 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors 6.3.4 The principle of constructive res judicata has been enunciated in State of Uttar Pradesh vs Nawab Hussain 1977 SCR (3) 28 in the following terms:
"The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough council, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action." This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality. and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. ...
These simple but efficacious rules of evidence have been recognised for long, and it will be enough to refer to this Court's decision in Gulabchand Chhotalal Parikh v. State of Bombay for the genesis of the doctrine and its development over the years culminating in the present section 11 of the Code of Civil Procedure, 1908. The section, with its six explanations, covers almost the whole field, and has admirably served the purpose of the doctrine. But it relates to suits and former suits, and has, in terms, no direct application to a petition for the issue of a high prerogative writ. The general principles of res judicata and constructive res judicata have however been acted upon in cases of renewed applications for a writ...
As is obvious, the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi's case (supra), it was not necessary to reiterate it in Gulabchand's case (supra) as it did not arise for consideration there. The clarificatory observation of this Court in Gulabchand's case (supra) was thus misunderstood by the High Court in observing that the matter had been "left open"' by this Court.
It is not in controversy before us that the respondent did not raise the plea, in the writ petition which had been filed in the High Court, that by virtue of clause (1) of article 311 of the Constitution he could not be dismissed by the Deputy Inspector General of Police as he had been appointed by the Inspector General of Police. It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide. It was therefore not permissible for him to challenge his dismissal, in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the Page 20 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors principle constructive res judicata and the High Court erred in taking a contrary view.
The appeal is allowed, the impugned judgment of the High 'Court dated March 27, 1968, is set aside and the respondent's suit is dismissed."
The disciplinary authority sent the enquiry report to the applicant vide letter dated 11.05.2010 (Annexure 8 of OA). Subsequently, on being so advised by UPSC, the reasons for disagreement of disciplinary authority with findings of enquiry report were also sent to the applicant vide O.M. dated 16.11.2012 inviting his representation (Annexure 9 of OA). In response to the findings of enquiry report, the applicant submitted a detailed representation titled 'Objections against enquiry report dated 14/10/2008 furnished to the undersigned through Office Memorandum dated 03/05/2010...'. Another detailed representation was submitted titled 'Representation against the enquiry report dated 14/10/2008 and the reasons for disagreement expressed by the disciplinary authority communicated vide letter dated 30/11/2012'. A perusal of both the representations, attached to the OA as Annexure 10, does not indicate that the issue of denial of hearing was raised by the applicant at that stage. The subsequent representation of the applicant in response to respondents' letter dated 16.11.2012, attached to OA as Annexure 11, also does not raise this ground for opportunity for hearing. Raising this ground now, in our view, is impermissible.
6.3.5 Before leaving the issue of disagreement of disciplinary authority with the findings of the enquiry, it is noted that in Yoginath, the delinquent officer was a civil judge against whom the enquiry returned the finding that the charge was not proved, but the Disciplinary Committee of Hon'ble High Court held that the charge was proved. In the present case, the sole article of charge was divided into six elements, or ingredients, or parts, by the enquiry officer giving specific findings against each element. From the findings it can be made out that while the enquiry officer did not find elements A, B and D proved, he found element C partially proved and elements E and F proved. We Page 21 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors make this observation to make a distinction of this case as compared to Yoginath where the charge was not proved in the enquiry.
6.4.1 We come to gravity of misconduct now. Is this a case of grave misconduct or causing pecuniary loss meriting punishment or simply a case of carelessness is the issue before us. Misconduct, in its various facets, is analyzed by Hon'ble Supreme Court in Union of India vs J. Ahmed 1979 SCC (2) 286 as follows:
"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster]. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle .(Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct".
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and 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. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a Page 22 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand shah v. Manager, Ahmedabad Co- op. Department Stores Ltd.]. But in any case, 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."
(emphasis supplied) 6.4.2 In D V Kapoor vs Union of India 1990 SCR (3) 697 it was held that:
"6. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee..."
(emphasis supplied) 6.4.3 It follows from the above that the gravity of misconduct can be assessed with reference to the context as well as to the impact caused. Passing of an odd medical bill of a modest amount, in our view, could have been explained as a genuine error of judgment. Viewed in the context where the problem of false bills was known, put a different weight to the lapse. Further, when the number and financial magnitude of the bills presented was unusual, it acquired a different bearing altogether. The observations extracted below from UPSC's advice are relevant here:
"The audit report, a listed document, reveals about inordinate expenditure on account of reimbursement of medical and it further indicates that these officials and their family members had not fallen ill prior to January 1991 and after March 1991. The CO's contention that DG AIR and Ministry were aware of the problem of false medical bills in AIR, Darbhanga does not absolve him from the charge. The CO being head of office and overall in-charge of the station should have exhibited common prudence, and should have countersigned/passed these bills after close scrutiny and ensuring genuineness."
We agree that the situation called for prudence which was not exercised. Page 23 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors 6.4.4 For the reasons discussed above, we are not inclined to take issue with the gravity of the misconduct as assessed by the respondents. 6.5.1 Another issue to be examined is whether UPSC failed to consider the case with an open and independent mind and simply followed the process mechanically. We observe that the case of the applicant referred to UPSC by the disciplinary authority was returned by UPSC thrice advising the disciplinary authority to remove deficiencies in the process - twice for want of authenticated copies of prosecution exhibits and legible copies of some other documents and once for pointing out that the disciplinary authority should provide the reasons for disagreement with findings of enquiry to the applicant. 6.5.2 Further, we have perused UPSC's advice and have not noticed any substantive reason in support of the applicant's contention. 6.6.1 One aspect that requires to be examined is the non payment of TA/DA to the applicant prejudicing his interest in defending himself in the enquiry proceedings. In this regard the respondents have stated that TA/DA claims of the applicant have already been settled as per rules vide letter dated 27.03.2008.
6.6.2 In case any outstanding issue remains with regard to payment to TA/DA, the applicant can represent to the respondents for its final settlement. 6.7.1 Finally, we address the issue raised by the applicant that the order dated 17.10.2013 is non-speaking and has been issued without considering the charge and the reply submitted by the applicant in his defense. 6.7.2 Before delving into the matter and review the disciplinary process followed, we would advert to advert to the scope of judicial review. First we take note of the following observations in Nirmala J. Jhala:
"III Scope of Judicial Review ....
(iii) The decisions referred to hereinabove highlight clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set aside if it is based on extraneous grounds, or when there are no grounds at all Page 24 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision- making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."
(Emphasis supplied) 6.7.3 In B. C. Chaturvedi vs Union of India Ors (1995) 6 SCC 49 it was held that:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the enquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power, and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedings. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/tribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority in entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re-appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence...
6.7.4 In the landmark judgment Union of India vs P. Gunasekaran (2015) 2 SCC 610 the scope of judicial review has been circumscribed thus:
"The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings;Page 25 of 28
CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors d. the authorities have disabled themselves from reaching a fair e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
6.7.5 The applicant was proceeded against under Rule 14 of the Central Civil Services (Classification, Control Appeal) Rules, 1965 for having failed to maintain absolute integrity, exhibiting lack of devotion to duty and acting in a manner unbecoming of a government servant, and thereby contravening the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964. The conclusion of the enquiry officer, recorded at the end of his report in bold letters, was:
"Shri V.S. Shrivastava lacked in devotion to duty of HOO while passing and allowing payment of medical claims under Rule 3 (1)(ii)."
The advice of UPSC dated 29.08.2013 concluded thus:
"5. In light of the observations and findings, as discussed above and after taking into account all other aspects to the case, the Commission note that the charges established against the CO, constitute grave misconduct on his part and consider that the ends of justice would be met in this case if the penalty of 'withholding of 10% (ten per cent) of the monthly pension otherwise admissible to the CO for two years' is imposed on Shri V.S. Shrivatava."
(emphasis supplied) The disciplinary authority in the order dated 17.10.2013 observed and decided as follows:
"WHEREAS the Disciplinary Authority observed that Shri Shrivastava, charged officer, while posted as Station Director, AIR, Darbhanga and functioning as Head of the Office during the year 1990-91, was overall in-charge of the station and was Page 26 of 28 CAT, Lucknow Bench OA No. 332/00536of 2013 - Vijay Shankar Shrivastava Vs. U.O.I & Ors authorized to pass claims of medical reimbursement of employees of AIR, Darbhanga. He was fully aware about the problem of submission of false medical bills by employees of AIR, Darbhanga. There was a drastic in medical reimbursement payment during 1990-91. As er the audit report, which is the listed document, speaks about drawing of Rs. 3,23,820/- for 12 nos. of medical bills in the month of March, 1991. The charged officer, in his representation dated 20.12.2012, himself has admitted countersigned such bill amounting Rs. 1,16,473/-, whereas during the year 1989-90 and also in years 1991-92 and 1992-93, payments of medical reimbursement were 3,022/-, 6,999/- and nil, respectively. Thus on the basis of preponderance of probability it is proved that there had been drastic increase in payment of medical reimbursement during the year 1991 and payments were passed during the month of March, 1991 itself. It is also proved that the chemist shops from where medicine purported to have been purchased were not authorized to sell medicines, and Dr. C. N. Jha, who had been shown as Authorized Medical Practitioner (AMA) was in fact not posted in Darbhanga during the period January 1990 to March 1991 and therefore could not have been AMA as per CS (MA) Rules. Therefore, it was clear that there was something wrong with the claims of medical reimbursement. However, bills were passed without making proper enquiry and without paying attention to the fact that there had been drastic increase in the medical claims compared to previous year, the chemist shops from where medicines purported to have been purchased were not authorized to sell medicines, and Dr. C. N. Jha, who had been shown as Authorized Medical Practitioner (AMA) was in fact not posted in Darbhanga during the period January 1990 to March 1991. The charged officer being the overall in-charge of the station failed in his duties to observe that there had been drastic increase in the claim of medical reimbursement whereas there was no payment towards medical claims since 1989 in AIR, Darbhanga. He also failed to put up a mechanism to check the llicense of the chemist shops and status of AMA whereas he was fully aware of problem of submission of false claims of medical reimbursement prevailing in AIR, Darbhanga and, therefore, it was very much essential for the charged officer to know the status AMAs in the city and licenses of chemists before the medical claims for payment were passed.
WHEREAS after taking into account the relevant evidence brought on record and the facts and circumstances of the case and advice tendered by UPSC, Disciplinary Authority has come to the conclusion that article of charge stands proved except element of charge that charged officer passed bills amounting Rs. 3,19,794/- within two days.
AND WHEREAS the Disciplinary Authority after taking into account the relevant records, the facts and circumstances of the case, and the advice tendered by UPSC, has decided that the ends of justice would be met if the penalty of 10% cut in monthly pension for a period of two years otherwise admissible to Shri V. S. Shrivastava, formerly Director (retd.), DTI, Lucknow, would be imposed on him. NOW, THEREFORE, the Disciplinary Authority orders accordingly." 6.7.6 From the above, it is evident that the due process of conducting disciplinary proceedings has been substantively adhered to by the respondents and we do not find that the order dated 17.10.2013 requires interference from this Tribunal.
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7. In view of the foregoing, the order dated 17.10.2013 is upheld. In regard to payment of TA/DA, the applicant shall submit a representation on outstanding dues to the respondents within a month of receipt of a certified copy of this order and the respondents shall dispose of such representation as per rules applicable within a period of two months from the receipt of representation.
8. Pending MAs, if any, also stand disposed of.
9. Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
Vidya
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