Central Administrative Tribunal - Gauhati
Shri Mrinal Chandra Sarma vs M/O Water Resources on 17 May, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00337/2017
Date of order: This, the 17th day of May, 2024
HON'BLE SMT. URMITA DATTA SEN, JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
Mrinal Chandra Sarma
Son of Late Kabi Chandra Sarma
Presently working as Assistant Executive Engineer
Office of the Executive Engineer
North Guwahati Division
Brahmaputra Board, Rudreswar
North Guwahati, Guwahati-781030.
...Applicant
- Versus -
1. The Union of India
Represented by the Secretary
Ministry of Water Resources
Government of India
New Delhi - 110001.
2. The Under Secretary to the Govt. of India
Block No. 11, 8th Floor
CGO Complex, Lodhi Road
New Delhi - 110003.
3. The Chairman
Brahmaputra Board
Basistha, Guwahati-781029, Assam.
OA. 337 of 2017
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4. The Vice-Chairman
Brahmaputra Board
Basistha, Guwahati-781029, Assam.
5. Brahmaputra Board
Represented by the Secretary
Brahmaputra Board, Basistha
Guwahati-781029, Assam.
... Respondents
For applicant(s): Sri M. Chanda & Smt. U. Dutta
For respondents: Sri A. Chakraborty, Addl. CGSC
Date of Hearing: 25.04.2024 Date of Order: 17.05.2024
ORDER
PER DR. SUMEET JERATH, MEMBER (A):
The instant O.A. has been filed by the Applicant - Shri Mrinal Chandra Sarma seeking the following reliefs:-
"8.1 That the Hon'ble Tribunal be pleased to set aside and quash the impugned Office Memorandum dtd. 12.03.2012, impugned enquiry report dtd. 19.9.2016, impugned penalty order dtd. 16.02.2017 as well as impugned Appellate Order dtd. 25.08.2017 with a further direction upon the respondents to restore the pay and allowances to the applicant with all consequential benefits including arrear pay and allowances.
8.2 Costs of the application.
OA. 337 of 2017 3 8.3 Any other relief (s) which the applicant is entitled to, as the Hon'ble Tribunal may deem fit and proper."
2. The factual matrix of the case is that - the Applicant-Shri Mrinal Chandra Sarma was initially appointed as Assistant Engineer in the year 1982 in the Brahmaputra Board under the Ministry of Water Resources, Govt. of India. Thereafter, he was promoted as Assistant Executive Engineer in the year 1990. While serving as Assistant Executive Engineer, he was served with a Memorandum of Charge Sheet bearing letter No. BB/Vig.-4/2010/23 dated 12.03.2012 containing six Articles of Charge which reads as follows:-
"(i) Shri Mrinal Ch. Sarma, Asstt. Executive Engineer, had made official tour by the official vehicle AS-)1C/1040 from Silchar to Sairang, Mizoram on 3.3.05, made local tour and came back Silchar on 21.3.05, the fuel expenditure of Rs. 5977.00 was adjusted against temporary advance of Rs. 6000.00 (Vr No. 236 dtd. 30.3.05). But as per statement submittied by SI, Thantumliana Vairangtee Police Station dtd. 5/8/10, the vehicle No. AS-01C/1040 did not move on Silchar Aizwal road on 3.3.05 & 21.3.05. The record of movement of vehicle on those days were false.
(ii) Shri Mrinal Ch. Sarma, Asstt. Executive Engineer, had made official tour by Deptt.
OA. 337 of 2017 4 Vehicle AS-01C/1040 from Silchar to Sairang, Mizoram on 30.3.2005, made local tour and came back to Silchar on 31.5.05. The cost of fuel of Rs. 2198.00 was adjusted by Vr. No. 272 dtd. 31.3.05. But as per statement submitted by SI, Thantumliana Vairangte Police Station on 5.8.10, the vehicle No. AS-01C/1040 did no move on Silchar Aizawl road on 30.3.2005 and 31.3.2005. The record of movement of vehicle in log book were false.
(iii) Shri Mrinal Ch. Sarma, Asstt. Executive Engineer, had made official tour by Deptt. Vehicle No. AS-01C/1040 from Silchar to Sairang Mizoram on 6.8.05 and back to Silchar on 14.8.05. The cost of fuel of Rs. 3378.00 was adjusted by Vr. No. 55 dtd. 22.8.05. But as per statement submitted by SI Thantumliana, Vairangte Police Station, the vehicle No. AS-01C/1040 did not move on Silchar Aizawl road on 6.8.2005 and 14.8.05. The record of movement of vehicle on logbook was false.
(iv) Shri Mrinal Ch. Sarma, Asstt. Executive Engineer had made journey on Tata Sumo from Sairang to Silchar on 29.5.05 and 31.5.05 stayed on transit camp at Silchar. But from the transit camp registered it was found that Shri Mrinal Ch. Sarma, Asstt.
Executive Engineer was staying continuously from 27.5.05 to 2.6.05. As such the journey on 29.5.05 and 31.5.05 were false.
(v) Shri Mrinal Ch. Sarma, Asstt. Executive Engineer, had made official tour on 11.8.05 to 13.8.05 on deptt. Vehicle AS-01C/1040. The expenditure of Rs. 1248.00 vide Vr. No. 72 dtd. 23.1.06 was claimed by Shri Mrinal Ch. Sarma, Asstt. Executive Engineer. BNut as per statement submitted by SI, Thantumliana, Vairangte Police Station the vehicle did not move on Silchar & Aizawl OA. 337 of 2017 5 road on 11.8.05 and 13.8.05. The record on log book was false.
(vi) Shri Mrinal Ch. Sarma, Asstt. Executive Engineer, had made official tour from Silchar to Sairang, Mizoram on 20.8.05 and from Sairang to Silchar on 30.8.05 by Tata Sumo. But as per register of transit camp, Shri Sarma, AEE had stayed continuously at Silchar from 14.8.05 to 31.8.05. Hence the above journeys were false."
3. Against the aforesaid Memorandum of Charge Sheet, applicant submitted a detailed statement/reply categorically denying the alleged charges and also submitted article wise reply in details on 23.05.2012. However, subsequently, the Disciplinary Authority had appointed the Inquiry Officer as well as Presenting Officer. After enquiring into the matter, the Inquiry Officer in his enquiry report dated 19.09.2016 had given the following findings.
"8 FINDINGS On the basis of above analysis and discussion of evidence in para-7.2.1 to 7.2.6.8, the findings on the articles of charge are as under:
Article of Charge at 7.1.2 (a): Proved 7.1.2 (b): Proved 7.1.2 (c): Proved OA. 337 of 2017 6 7.1.2 (d): Proved 7.1.2 (e): Not Proved 7.1.2 (f): Proved Hence, keeping in view the above analysis as in para-7.2.1 to 7.2.6.8 and also the doctrine of 'preponderance of probability', the article of charge as stated in charge sheet dated 12.03.2012 stands proved."
4. Thereafter, the Disciplinary Authority vide impugned Penalty Order dated 16.02.2017 had imposed major penalty of reduction of pay by one stage from Rs. 36380+6600 (GP) = (Rs. 42980/-) to 35130+6600 (GP)= (Rs. 41730/-) in the time scale of PB-3 Rs. 15600-39100 + GP Rs. 6600/- for a period of one and a half year w.e.f. from 16.02.2017, which was also upheld by the Appellate Authority vide Order dated 25.08.2017.
5. The learned counsel for the applicant Sri M. Chanda made the following pleadings:-
That, in the instant application, the short question which is involved as to whether Disciplinary Authority is entitled to impose major penalty under Rule 11(V) of CCS OA. 337 of 2017 7 (CCA) Rules, 1965, whereby penalty of reduction of pay by one stage from Rs.
36380+6600 (GP) = (Rs. 42980/-) to 35130+6600 (GP)= (Rs. 41730/-) in the time scale of PB-3 Rs. 15600-39100 + GP Rs. 6600/- has been imposed upon the Applicant in a most arbitrary and ex-facie illegal manner for a period of one and a half year (eighteen months) with effect from 16.02.2017 upon the present Applicant in absence of a single piece of evidence in the record of the enquiry proceedings/inquiry report dated 19.09.2016 besides the sole Complainant Shri Rafiquddin Barlashkar who was also an Assistant Engineer serving at the relevant time at the Brahmaputra Board had lodged a false complaint dated 22.02.2009 due to official rivalry alleging that the applicant had drawn false TA bills and also reimbursed false fuel bills/expenditure in the name of official tour by official vehicles from Silchar to Sairang, Mizoram on different dates during the year 2005 and as a result, impugned Memorandum of Charge Sheet dated 12.03.2012 had been instituted against the present Applicant under Rule 14 of the CCS (CCA) Rules, 1965 consisting 6 Article of Charges as evident from Memorandum of Charge Sheet dated 12.03.2012. But the said sole Complainant i.e. Rafiquddin Barlashkar, Assistant Engineer was neither listed as a prosecution witness nor he was examined during the course of the enquiry proceedings. The impugned Memorandum of Charge Sheet dated 12.03.2012 was instituted against the present Applicant on the basis of the said Complain dated 22.02.2009 lodged by said Shri Borlashkar of the Brahmaputra Board against the present Applicant.
OA. 337 of 2017 8
6. However, there were serious lapses in the procedure followed by the Inquiry Officer. The prosecution witness No. 1Shri Thantumiliana, Sub- Inspector of Vairengte Police Station, Mizoram who gave the most important prosecution document No. 1 (statement showing movement of department vehicle No. AS-01C/1040 did not move on different dates in the year 2005 on the Silchar-Aizawl road) was never examined during the course of the enquiry proceedings.
7. Further, the applicant produced two documents in support of his claim and submitted that-
(i) The said journey was performed by him in departmental vehicle on said dates i.e. letter dated 30.09.2011 issued by Officer-in- Charge PS, Vairengte addressed to Sh. M C Sarma in reply to his letter dated 25.06.2011 and letter dated 29.09.2015 issued by Superintendent of Police, Kolasib District, Kolasib addressed to Sh. M C Sarma, AEE in reply to his RTI application dated 19.09.2015;
(ii) On perusal of the RTI reply dated 29.09.2015, it is observed that SP, Kolasib has confirmed that the letter No. D/642/Vairengte Police Station dated 30.09.2011 was dispatched on 30.09.2011 OA. 337 of 2017 9 vide Vairengte Police Station Dispatch register but he did not confirm that the letter produced by the Charge Official is the same letter which was dispatched on 30.09.2011. SP, Kolasib had further stated that the issuing Officer could not be ascertained as a copy of which was not found in the office of Vairengte Police Station.
(iii) On a mere perusal of the observation and findings given by the inquiry officer again ignoring an overlooking the vital defence documents namely, Defence Document No. 1 i.e. RTI reply showing the statement of vehicle movement dtd. 30.09.2011 without any jurisdiction but relied upon the prosecution document dtd. 25.02.2009 issued by the Officer-in-Charge Vairengte Police Station under Kolasib District addressed to AEE Silchar Sub- Division No. 1 and complaint letter dtd. 05.08.2010 when such document was not examined or corroborated with the issuing authority namely Shri Thantumliana of Vairengte Police Station, since inquiry officer failed to secure his appearance before the inquiry proceeding either as prosecution witness or defence witness as such, authenticity of the vehicle movement statement issued by Shri Thantumliana SI, of Vairengte Police Station could not be established beyond doubt, on the face of the RTI reply Shri D. Sharma SI of Vairengte Police Station confirmed by the SP Kolasib and on that score alone the arbitrary findings recorded by the inquiry officer with regard to Article of charge at para 7.1.2 (b) is contrary to the evidence recorded in the inquiry proceeding and the said findings of the Inquiry Officer is liable to be set aside on that score alone.
(iv) However, SP Kolasib rather confirmed that the document dated 30.09.2011 was issued which is evident from dispatched register and issue No. D/642 Vairengte Police OA. 337 of 2017 10 Station. As such, such document cannot be ignored and overlooked by the IO while carried out analysis of evidence. However, SP Kolasib merely says that issuing Officer could not be ascertained as a copy of which was not found in the said Police Station, that does not mean that the defence document No. 1 obtained by the applicant cannot be termed as unauthentic document.
(v) It is pertinent to mention here that merely because copy of the RTI reply given to the applicant not retain in the Police Station, does not mean that the same was not issued by the Officer-in-Charge Vairengte Police Station when it is categorically admitted by the SP Kolasib that the Diary No. is there in the register of the Police Station.
(vi In view of the aforesaid factual position, the impugned Inquiry Report dated 19.09.2016 is liable to be set aside and quashed with exemplary cost along with the consequential impugned Penalty Order dated 16.02.2017 also impugned Appellate Order dated 25.08.2017.
8. Sri Chanda has also relied on the following Judgments in support of his arguments:
i. Narendra Mohan Arya Vs. United India Insurance Company Limited & Others, reported in (2006) 4 SCC 713.
ii. M.V. Bijlani Vs. Union of India & Others, reported in (2006) 5 SCC 88.
iii. Roop Singh Negi Vs. Punjab National Bank & Others, reported in (2009) 2 SCC 570.
iv. Hardwari Lal Vs. State of U.P. & Others, reported in (1999) 8 SCC 582.
OA. 337 of 2017 11 v. Income Tax Appellate Tribunal Vs. V.K. Agarwal & Another, reported in (1999) 1 SCC 16.
vi. Sher Bahadur Vs. Union of India & Others, reported in (2002) 7 SCC 142.
vii. Union of India & Others Vs. K.A. Kittu & Others, reported in (2001) 1 SCC 65.
viii. G.C. Jatav Vs. Secretary cum Chairman Standing Committee, ESIC & Another, reported in 2005 (1) SLJ CAT 280.
ix. Commissioner of Police, Delhi & Others Vs. Jai Bhagwan, reported in (2011) 6 SCC 376.
x. Life Insurance Corporation of India & Another Vs. Ra. Pal Singh Bisen, reported in (2010) 4 SCC 491.
xi. Kuldeep Singh Vs. Commissioner of Police & Others, reported in (1992) 2 SCC 10.
9. The learned Addl. CGSC for the Respondents Sri Amitabh Chakraborty has argued that the Charge Memo dated 12.03.2012, Inquiry Report dated 19.09.2016, Penalty Order dated 16.02.2017 and Appellate Authority's Order dated 25.08.2017 were based on the records and evidence of substance and findings of a departmental inquiry conducted as per due process of law. The falsification committed by the Applicant is clearly evident from the records and other authentic information received from the concerned OA. 337 of 2017 12 Police Station. That's why; these documents cannot be relied upon at any stage. The Disciplinary Authority found no merit in the case and proved that the Applicant is found guilty. The collected documents cannot be claimed as authentic documents and it has been proved by the RTI reply supplied by the Superintendent Police Kolasib District, Kolasib, Mizoram.
10. As per Sri Chakraborty, complaint against the Applicant was received from the Deputy Secretary, Ministry of Water Resources vide letter dated 31.12.2009. In the said letter, it was informed that the complaint was received from the CBI. The vehicle movement statement was received in Vigilance Cell, Brahmaputra Board vide letter dated 09.08.2010. After getting vehicle movement statement and other documents from Variengte Police Station, the matter was submitted to the Joint Secretary (JS) & CVO, Ministry of Water Resources vide letter dated 09.12.2011 for 1st stage advice of CVC. The Deputy Secretary (Vig), Ministry of OA. 337 of 2017 13 Water Resources advised intimation of major penalty against the applicant vide letter dated 13.05.2011. Thereafter, the only Memorandum dated 12.03.2012 was issued to the Applicant.
11. Sri Chakraborty has further submitted that the judicial review is not a review of decision but review of manner in which decision is made. Disciplinary Authority is the sole judge of the facts and the Appellate Authority can appreciate the evidence & not the High Courts and Tribunals. The burden of proof in departmental enquiries does not always lie on department but may shift to delinquent. In a disciplinary or a departmental inquiry, the question of burden of proof depends upon the nature of charges and explanation put forward by the delinquent. There is no such concept that burden of proof always lie upon the department in a disciplinary inquiry. The department is not expected to examine those other employees in the office to show that their acts or records could not have OA. 337 of 2017 14 formed the basis of wrong noting made by the delinquent. The discretion to impose penalty upon the delinquent official was exercised by the competent authority in a judicious manner.
12. Heard the learned counsel of both the sides; perused the relevant documents on record and went through the Judgments of the Hon'ble Apex Court. The enquiry proceedings against the Applicant were initiated based on a complaint lodged by Shri Rafiquddin Barlashkar dated 22.02.2009, also an Assistant Engineer and colleague of the Applicant serving in the Brahmaputra Board at the same time. The charges made were submission and reimbursement of false fuel bills/expenditure in the name of official tour by the Applicant on different dates during the year 2005. These seem to be made out of professional rivalry and jealousy by the complainant against the Applicant. However, there have been serious lacunae and lapses in the procedure followed by the Inquiry Officer. The OA. 337 of 2017 15 sole complainant - Shri Rafiquddin Barlashkar, Assistant Engineer was neither listed as a Prosecution Witness nor examined during the course of the enquiry proceedings. The Prosecution Witness No. 1 - Shri Thantumiliana, Sub-Inspector of Vairengte Police Station, Mizoram who gave the most important prosecution document No. 1 (statement showing movement of department vehicle No. AS-01C/1040 did not move on different dates in the year 2005 on the Silchar-Aizawl road) was never examined during the course of the enquiry proceedings. Prosecution Witness No. 1 did not appear in the enquiry proceeding despite repeated request/summons by the Commissioner for Departmental Enquiry and Enquiring Authority. The enquiry process got further muddied by the fact that the Defense document No. 1 i.e. RTI reply dated 30.09.2011 bearing Dispatch No. D/642.VRTE-P8/11 was deliberately not taken cognizance of by the Inquiry Officer, Disciplinary Authority and Appellate Authority. The Appellate Authority while passing the impugned OA. 337 of 2017 16 Appellate Order dated 25.08.2017 did not follow the procedure laid down in Sub-Rule 2 of Rule 27 of the CCS (CCA) Rules, 1965.
13. It is a settled principle of law that Courts and Tribunals are not Appellate Authority in Disciplinary Proceeding and should not ordinarily interfere with the decisions arrived at by the Inquiry Officer, Disciplinary Authority and Appellate Authority. But if the procedure in inquiry has been vitiated; there are procedural lapses and lacunae then that becomes a necessary and sufficient ground for the Courts/Tribunals to interfere in the Judgment and Order passed by the Inquiry Officer, Disciplinary Authority and Appellate Authority. Also when the findings arrived at are not based on hard incontrovertible evidence and facts and perverse orders passed then the Courts and Tribunals are duty bound to interfere.
14. In the light of the above, we are of the considered opinion that the instant O.A. has merit and OA. 337 of 2017 17 deserves to be allowed. Accordingly, we set aside and quash the impugned Office Memorandum dated 12.03.2012, impugned inquiry report dated 19.09.2016, impugned penalty order dated 16.02.2017 as well as impugned Appellate Order dated 25.08.2017 and direct the Respondents to restore the pay and allowances to the Applicant with all consequential benefits including arrear pay and allowances. The above exercise would be completed by the Respondents within a period of three months from the date of receipt of the certified copy of this Order. .
15. With the above directions and orders, the instant O.A. is allowed with no order as to costs.
(DR. SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
PB
OA. 337 of 2017