Central Administrative Tribunal - Delhi
D S Nayak vs M/O Urban Development on 26 November, 2024
1
OA 770/2018
Item No.23/C-1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 770/2018
M.A. No. 843/2018
Order reserved on: 07.11.2024
Order pronounced on : 26.11.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
D.S. Nayak, Superintending Engineer,
Aged about 48 years,
S/o Sh. Seega Naika,
R/o 51, Ground Floor, Vinoba Puri, Lajpat Nagar - II,
New Delhi - 110024
... Applicant
(By Advocate : Mr. M.K. Bhardwaj )
Versus
1. Union of India,
Through its Secretary,
Ministry of Urban & Housing Affairs,
Nirman Bhawan, New Delhi.
2. The Director General,
CPWD,
Ministry of Urban & Housing Affairs,
Nirman Bhawan, New Delhi.
... Respondents
(By Advocates : Mr. R.K. Sharma,
Mr. Ravi Kant for Mr. Hanu Bhaskar)
2
OA 770/2018
Item No.23/C-1
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant in para 8 of the OA has prayed for the following reliefs: -
"(i) to quash and set aside the Order No. 1/21/DIV/2010-
VSII/AV.I dated 28.10.2015 (A-1), Charge Sheet dated 14.12.2010 (A-2) and Inquiry Report dated 11.06.2014 (A-3).
(ii) to declare the action of respondents in initiating disciplinary proceedings and appointing I.O. & P.O. as illegal and accordingly quash and set aside the Charge Memo dated 14.12.2010 as well as subsequent orders and direct the respondents to grant all consequential benefits to the applicant withheld on account of said proceedings/penalty order.
(iii) to pass other order as deemed fit and proper in the facts and circumstances of the case."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the case are that the applicant was subjected to disciplinary action vide Charge memo dated 26.05.2010 on the allegation that while working as AEE, Mysore Division, CPWD during 15.04.1997 to 13.09.2000, as EE in Nanded Central Divison, Maharashtra during 3 OA 770/2018 Item No.23/C-1 14.09.2000 to 14.06.2004 and as EE in Mysore Central Division during 30.06.2004 to 30.04.2006 one did not inform certain transactions and availed LTC for the block year 2000-01 for his family members inspite of having income of Rs.40,000/- from other sources. The applicant states that the applicant submitted reply to the said charge memo with all necessary details and requested to drop the proceedings as they were based on factually incorrect allegations. As the said reply was not considered, therefore, the applicant sent reminder on 14.03.2011. After receipt of the reminder, the Disciplinary Authority had appointed I.O. and P.O. mechanically in violation of Rule 14 (5) of CCS (CCA) Rules, 1965 which mandates for considering the reply submitted to the charge memo with due application of mind and not to appoint the I.O. mechanically. The I.O. proceeded further and finally submitted report on 11.06.2014. Applicant further states that on perusal of the said report, the I.O. did not find any evidence against the applicant, however, I.O. held Article-I as partially proved. The report would show that the same is regarding lending of money to office staff and making FDR for seeking loan. As far as loan is concerned, it was explained that no such money was ever given to office staff as loan. In fact, the applicant had helped the peon through relatives and 4 OA 770/2018 Item No.23/C-1 friends as he was suffering from financial distress. As far as FDR is concerned, it was explained that the same was done by the bank before sanctioning loan and the information regarding loan was duly given to the Competent Authority.
4. The applicant prayed for exonerating him from partially proved Article - I also. In the said reply to charge memo, the applicant had explained that he had never given loan to anyone and in that regard, an affidavit dated 16.09.2014 was submitted by none other than Sh. Rangaswami whom the loan was allegedly given. As far as financial transaction is concerned, the applicant explained that due information was given to the Department regarding purchase of scooter in 1998 and the concerned EE stood as surety for taking loan for purchasing scooter.
5. Learned counsel for the applicant states that after receipt of the reply, the Disciplinary Authority referred the case of the applicant to the UPSC for tendering advice. The UPSC tendered its advice vide letter dated 05.08.2015 for imposing penalty of Censure. He further submits that the action of the Disciplinary Authority was non-application of mind and mechanical in nature, merely following the 5 OA 770/2018 Item No.23/C-1 advice of the UPSC, which is evident from the Penalty Order dated 28.10.2015.
6. Learned counsel for the applicant submits that the applicant requested the Disciplinary Authority and the senior officers to reconsider the matter as the said penalty was imposed without any justification, depriving him from promotion. Resultantly, the applicant filed Review Application (RA) on 13.07.2017 in order to enable the respondents to rectify the illegality by following due procedure as per CCS (CCA) Rules. Apart from RA, the applicant resorted to Grievance Cell for redressal of his grievances but of no avail. Hence, the present OA has been filed by the applicant. In the present OA, the applicant has raised the grounds viz. (i) the findings of the I.O. are not based on any material facts brought on record by means of documentary evidence or oral evidence; (ii) there was no concealment of any fact by the applicant to the respondent authorities as well as to the Income Tax Department. Hence, the applicant was subjected to disciplinary action malafidely; (iii) the Disciplinary Authority did not follow the mandate of Rule 14 (5) of the CCS (CCA) Rules, 1965, wherein it shows that on receipt of the reply, the Disciplinary Authority is required to consider the defence 6 OA 770/2018 Item No.23/C-1 taken by the delinquent before appointing I.O. to proceed further. However, in this case, the I.O. was appointed in a mechanical manner without perusing the reply. In support of the case, the applicant contends that the respondents have acted contrary to the law laid down by the Hon'ble Supreme Court in the case of State of Punjab vs. V.K. Khanna, 2001 (2) SCC 330; (iv) it is settled law that the disciplinary proceedings should not be used as a weapon to deprive any Govt. Servant from his service benefits. Hence, the impugned charge memo has been issued malafidely by the respondents, resulting denial of promotion and thereby causing recurring loss; (v) a perusal of Disciplinary Proceedings Rule read with other relevant rules and the provisions of the CCS (Conduct) Rules makes it clear that the Disciplinary Authority shall apply its mind before initiation of disciplinary proceedings.
7. Applicant states that the disciplinary action against a Govt. Servant cannot be taken on conjectures or surmises and after a long and inordinate delay. However, in this case, disciplinary action has been initiated without due application of mind. The applicant contends that the respondents have acted contrary to the law laid down by the Hon'ble Supreme Court in the case of P.V. Mahadevan 7 OA 770/2018 Item No.23/C-1 and M.V. Bijlani vs. Union of India JT 2006 (4) 439 and Inspector Prem Chand vs. Commissioner of Police JT (2007) 5. Applicant submits that the Disciplinary Authority failed to consider the findings of the Commission on the principle of 'preponderance of probability' without putting forth the good and sufficient reason to prove the charges leveled against the applicant will tantamount nothing sort of proving a charge on the basis of sheer conjectures and surmises. The said issue was examined by the Hon'ble High Court of Delhi in the case of Govt. of NCT and Ct. Gyanendra Singh vide judgment dated 20.04.2010 in W.P. (C) No. 2626/2010. In support of his case, learned counsel for the applicant relies upon various cases decided by the Hon'ble Supreme Court, namely, Union of India vs. H.C. Goel, AIR 1964 (SC) 364; State of Assam vs. M.C. Kalita AIR 1962 SC; Srinivasa vs. State AIR 1961, MLJ 211; State of Madras vs. A.R. Srinivasan AIR 1966 SC 1827; Dai-Ichi Karkaria Ltd. vs. Union of India & Ors. 2000 (4) SCC 57;
Consumers Action Group & Anr. Vs. State of Tamil Nadu & Ors. 2000 (7) SCC 425; C. Navaneaswara Reddy vs Government of Andhra Pradesh & Ors. AIR 1998 SC 939; Commissioner of Police, Delhi & Anr. Vs. Dhaval Singh, 1991 (1) SCC 246; State of Maharashtra & 8 OA 770/2018 Item No.23/C-1 Ors. vs. Ku. Tanuja, AIR 1999 SC 791, and Rajat Baran Roy Vs. State of West Bengal, AIR 1999 SC 1661.
8. Learned counsel for the applicant relied upon the judgment dated 20.12.2019 passed by the Hon'ble High Court of Judicature at Bombay in Writ Petition No. 12403/2018 in the case of Satyendra Singh Gurjar vs. Union of India & Ors.
9. Counter reply has been filed by the respondents on 27.03.2019 wherein they mentioned that the I.O. was appointed by the Disciplinary Authority vide order dated 08.07.2011 as the applicant had denied all the charges levelled against him. In fact, the I.O. conducted inquiry as per procedure laid down and after making detailed analysis and assessment of evidence on all articles of charges and found that Article - I as partly proved against the applicant vide Inquiry Report dated 11.06.2014. After considering the records of the inquiry, the findings of the inquiring authority, the advice tendered by the UPSC, the submissions made by the applicant via his representation dated 23.09.2014 and all other facts and circumstances relevant to this case in totality, the Disciplinary Authority ordered for imposition of penalty of Censure on the applicant vide order dated 28.10.2015. Learned counsel 9 OA 770/2018 Item No.23/C-1 for the respondents argues that the judgements referred by the applicant are not applicable in the present case as facts and circumstances of the present case are different. The misconduct by the applicant came into notice of the Disciplinary Authority vide the CBI's letter dated 19.02.2008. The chargesheet was issued to the applicant vide Memorandum dated 26.05.2010 after completion of all statutory formalities. The applicant has filed rejoinder on 16.12.2021 and he has reiterated the averments made by him in his pleadings to claim his innocence in this matter.
10. We have heard learned counsels for the parties and have perused the pleadings available on record.
11. We have observed that while recording findings in the inquiry report on Article-1 of the charge, the inquiry officer has held that component (v), (vi), (vii) & (viii) are sustained and the rest not substantiated. However, while recording his final assessment as last para in the inquiry report on 11.6.2014, the inquiry officer has stated that in view of the fact that source of income has not been disputed by the prosecution, Article-I and Article-III has not been established against the C.O. He opined that it becomes a case of non-compliance with the specific provision of the conduct rules without reflecting on the integrity of the 10 OA 770/2018 Item No.23/C-1 public servant and becomes a case technical lapse only. He has further stated that the Disciplinary Authority may like to take a considered view of the same in respect of Article -I as deemed fit.
12. The Union Public Service Commission (UPSC) while conveying their advice on 5.8.2015 to respondent no.1 has also stated that the failure of the charged official can be treated only as a procedural or technical lapse on his part. Moreover, the CVC's circular also clarifies that such lapses should ordinarily attract only Censure /Administrative Warning. They also advised that the Commission note that in the absence of malafide intends on the part of CO, or any reflection on his integrity and consider that the ends of justice would be met in this case if the minor penalty of 'Censure' is imposed upon the charged officer. Accordingly, penalty of censure was imposed upon the applicant vide impugned order dated 28.10.2015.
13. The learned counsel for applicant has placed reliance upon a number of judgements mentioned supra, it is observed that facts and circumstances are varied in each case and therefore, the ratio of the said judgment would not be applicable in this case.
11OA 770/2018 Item No.23/C-1
14. While arguing the matter orally, Shri M.K. Bhardwaj learned counsel for the applicant relied upon the judgment dated 20.12.2019 of the Hon'ble High Court of Judicature at Bombay in Writ Petition No. 12403/2018 in the case of Satyendra Singh Gurjar vs. Union of India & Ors. wherein it was held:-
"18. In the context of the thrust of the submission on behalf of the petitioner that there was no element of mens rea in the act of the petitioner of issuing out of charge order and, thus, it would not amount to misconduct, it may be advantageous to make a reference to the judgment of the Supreme Court in the case of Union of India and others vs. J. Ahmed2. The Supreme Court adverted to the general connotation of the term 'misconduct', especially in the context of disciplinary proceedings. The observations of the Court in paragraphs 10 to 12 are instructive. They read as under:
"10. It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty.
11. 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(17 QB 536,
542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) (1959)1 WLR 698]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur(61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj 2 (1979) 2 SCC 286.
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 Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik [(1966) 2 SCR 434]., 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. Unio nof India [(1967) 2 SCR 566]., 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 12 OA 770/2018 Item No.23/C-1 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 [(1964) 2 SCR 104], 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, diffcult to believe that lack of effciency or attainment of highest standards in discharge of duty attached to public offce 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 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. [(1978 19 Guj LR)]. But in any case, failure to attain the highest standard of effciency in performance of duty permitting an inference of WP12403-18.DOC negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We fnd it diffcult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings."
19. The learned Counsel for the petitioner placed a strong reliance on the judgment of the Supreme Court in the case of Inspector Prem Chand vs. Govt. of NCT Delhi & ors. 3, wherein the observations of the Supreme Court in the case of Ram Singh (supra) were extracted. It was thereafter enunciated that an error of judgment in not seizing the tainted currency notes, after the accused did not accept the same, was not per se a misconduct. A negligence simplicitor also would not mean to a misconduct. The Supreme Court, adverted to the judgment of the Supreme Court in the case of J. Ahmed (supra) and held that the appellant Inspector cannot be said to have committed any misconduct.
xxxxx 13 OA 770/2018 Item No.23/C-1
28. In our view, these circumstance, if considered in conjunction with total absence of ill motive, malafide intent or animus to cause wrongful gain to the importers and the petitioner, lead to a legitimate inference that the act on the part of the petitioner was the result of negligence and carelessness. It falls short of "misconduct".
15. In the judgment mentioned supra, the Hon'ble High Court of Judicature at Bombay, defined expression misconduct as arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. In view of above position and also in view of findings of inquiry officer in his report dated 11.6.2014, the advice of UPSC wherein it has also been stated that the failure of the CO can be treated only as a procedural or technical lapse on his part and acknowledgment by the disciplinary authority that mala-fide intent on the part of the CO is absent and there is no reflection on his integrity, we are of the considered view that the decision of the respondents to impose a penalty of 'Censure' in this case is not justifiable.
16. In view of above, the Original Application is allowed with following directions:-
(a). The impugned order dated 28.10.2015 (Annexure A-1) is quashed and set aside. As a consequence of quashing order dated 28.10.2015, the Charge Sheet dated 14.12.2010 (Annexure A-2) and Inquiry Report dated 11.6.2014 (Annexure A-3) are rendered inconsequential / insignificant.14 OA 770/2018
Item No.23/C-1
(b). The applicant is entitled to consequential benefits, if any, accrued to him during the currency of punishment. The respondents shall decide such consequential benefits within ten weeks from the date of receipt of a certified copy of this order.
(c) No order as to the costs. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/mk/