Rajasthan High Court - Jodhpur
Surendra Kumar Lotan vs Union Of India & Ors on 11 August, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 1029 / 2017
Surendra Kumar Lotan S/o Late Shri Sukhan Lal, aged about 60
Years, r/o House Number C-157, Krishna Nagar, New Pali Road,
District Jodhpur, Rajasthan.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Health,
Government of India, New Delhi.
2. Director General & Appellate Authority, Indian Council of
Medical Research, Ansari Nagar, New Delhi.
3. Director, Desert Medicine Research Centre, New Pali Road,
Jodhpur, Rajasthan.
4. Dr. A.P. Dass (Erstwhile Director-in-charge, DMRC, Jodhpur),
Flat No. 104, Asha Apartment, Hally Road, Conaght Place, New
Delhi.
5. Dr. Ramesh Chandra Sharma, (Erstwhile Deputy Director and
Officer-in-charge, DMRC, Jodhpur), 190, Anupam Apartment,
Meharoli, Badarpur Road, New Delhi.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Kuldeep Mathur
For Respondent(s) : Mr.M.S.Godara
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Order Reserved on 10.8.2017 Pronounced on 11.8.2017.
Per Hon'ble the Chief Justice
1. The petitioner joined service as LDC under the Union of India and earned promotion to the post of UDC and therefrom to the (2 of 13) [CW-1029/2017] post of Section Officer. The petitioner is a member of Scheduled Caste.
2. The problem commenced when the petitioner was posted in Jodhpur at the Desert Medicine Research Centre. One Dr.Ramesh Chandra Sharma was the Dy.Director and Officer Incharge of the said Medicine Centre. Acting as the disciplinary authority Dr.Ramesh Chandra Sharma instituted major penalty proceedings against the petitioner by issuing a charge-sheet and holding an enquiry, resulting in a penalty of compulsory retirement being inflicted upon the petitioner on 27.12.2006. The appeal filed resulted in partial success when vide order dated 28.5.2007 the appellate authority reduced the penalty from one of compulsory retirement to reduction in the lower stage for a period of 3 years.
The petitioner challenged the penalty as modified by the appellate authority before the Central Administrative Tribunal.
O.A.No.108/2008 filed by the petitioner was allowed. Vide order dated 5.5.2011 the Central Administrative Tribunal quashed the penalty levied.
3. In the meanwhile one Dr.A.P.Dass took over additional charge of the Medicine Centre and approved initiation of disciplinary action by approving a charge-sheet, which as per the petitioner, was on the same facts for which earlier charge sheet was issued and penalty levied which was set aside by the Central Administrative Tribunal. No fresh charge-sheet was served upon the petitioner and instead he was compulsorily retired under FR 56(j) vide order dated 3.2.2009. Challenge thereto before the Central Administrative Tribunal has resulted in a failure. Vide (3 of 13) [CW-1029/2017] impugned order dated 4.7.2016 the Original Application filed by the petitioner has been dismissed. The impugned decision has noted a large number of judgments on the subject of exercise of power under Rule 56(j) of the Fundamental Rules, but regretfully has not bothered to note the relevant facts.
4. On 13.7.2017 this Bench had directed the respondents to produce the record of the Screening Committee which recommended the petitioner to be compulsorily retired.
5. The relevant record has been produced. The record shows that no note was put up before the Committee containing the ACR record of the petitioner. On the contrary representations made by the petitioner, memos issued to him seeking explanation and his response thereto were placed before the Committee.
6. Since the findings of the Committee are in the nature of indicting the petitioner for wrong doings it has become our compulsion to note the entire contents of the report of the Review Committee. They read as under:-
"Report of a Review Committee Reference: DMRC letter No. Ref.
No.48/1/RR/Tech./DMRC/08 dated:24 December 2008 th The Review Committee consisting of the following Officers met on 8-10th January 2009 at DMRC, Jodhpur in reference to the above cited letter:
Dr. C.P.Batra, Scientist- E, NIMR, Delhi Dr. Tapas Chakma, Scientist - E, RMRC, Jabalpur The following points were brought to the notice of the Review Committee:
During the visit of the Director, NMIR, Delhi to DMRC, Jodhpur after taking over additional charge of the Centre on 12th and 29th August 2008, Shri S.K.Lotan, SO has alleged in (4 of 13) [CW-1029/2017] his application dated 3rd September 2008 as mentioned below:
A.1 That he has been harassed by the Ex-Officer-in-Charge and some other persons influenced by him since the last four years. He has mentioned that Dr. R.C. Sharma had constituted a SC/ST/OBC Cell for the Welfare of the reserved category of staff but it is a matter of grief that the officer/staff working under the same category are being admonished. Shri Lotan alleged that after an inquiry conducted by SC/ST Commission, Jaipur through SDM Jodhpur, it was found that Dr. R.C. Sharma has taken action against Schedule Caste category staff being prejudiced. The action on the inquiry report was to be taken by the Centre for which copies were sent to Dr. R.C. Sharma, Officer-in- Charge, DMRC, Jodhpur, Liasion Officer Shri Rajkumar Kalunda and Cell In-Charge Dr. S.P. Yadav and the Director- General, ICMR, New Delhi. But the applicant has not been intimated of the action taken in the matter till date. A.2 In the Second Para of his application Shri Lotan has stated that the visit of the Director to DMRC, Jodhpur along with Dr. R.C. Sharma on 12th August 2008 was felt dubitative which was proved true because, vide order dated 1.9.2008, all the staff working under the applicant was directed to submit their work to the other Section Officer.
The file related to recruitment to the post of Office Assistant was sent by the Head of Office to SC/ST/OBC Cell wherein it was found that disciplinary action has been approved by the Director on his first visit to the Centre on 13.8.2008. The applicant feels that the Director has been mislead otherwise the Director would have considered notes made by Shri Lotan and had taken decision for filling up of the above said post instead approval for taking disciplinary action against the applicant.
Shri Lotan has further mentioned that he has been punished earlier on the matter and his request is under consideration of CAT Jodhpur.
A.3 In the Third Para of his application, Shri Lotan has mentioned that he is an Officer belonging to Scheduled Caste category and he has lodged a complaint to the Commissioner, National SC Commission, New Delhi for the treatment being given to him at the Centre which is under consideration and the officers of the Centre are aware of the same. After considering the above details, the Director can visualize that in the Centre the applicant is not being given the normal treatment but his belonging to reserved category, he is being treated and his letters are not being received at the Centre.
A.4 In the last para Shri Lotan has mentioned that without consulting him, the Liasion Officer, Cell In-Charge and Head of Office are writing letters pertaining to SC/ST/OBC category of staff at higher level for which no record is (5 of 13) [CW-1029/2017] available in the Cell. For instance, against the inquiry of SDM Jodhpur, the Head of Office wrote a letter objecting to the report after 18 months. And that the present SDM has also endorsed the report. The above officers of the Centre have not taken any steps to resolve the problems. A.5 In the end, Shri Lotan has requested to stop the actions taken by the Competent Authority and to improve the administrative system so that a peaceful atmosphere can be created and daily work can be completed uninterrupted. After examining the above application of Shri S.K. Lotan, and other various documents and records; the following observations are made:
Consequent upon award of stoppage of three increments in the scale of pay of Section Officer w.e.f. 28.12.2006 ordered by the Director General, Indian Council Medical Research, New Delhi (being Appellant Authority) and reinstatement in service a Section Officer in Desert Medicine Research Centre, Jodhpur, Sh. S.K. Lotan resumed his duties in this Centre w.e.f 11th June 2007.
Soon after joining duties, Sh. Lotan was assigned the work, and instead of sticking to work he submitted a representation dated 6.7.2007 alleging inter alia that work assigned to him was more than the work allocated to the other Section Officer. It need not be emphasized that during the absence of Sh. Lotan - on suspension as also during Inquiry proceedings against him and till he re-joined duty after award of compulsory retirement vide order dated 27.12.2006, the other Section Officer was handling the entire administrative work of the Centre single handedly.
In fact, equitable work distribution between the two Section Officers and splitting assignments to thin areas of work to him and most of which come up only once/twice per quarter of year, did not justify for such a representation by him (Exhibit 1). Even otherwise also, he should have taken up such matter, if any, with the then Administrative Officer or Head of Office through personal discussions and could have avoided representation and subsequent correspondence. He had tried to exaggerate the nature of duties by splitting them, e.g., preparation of Pay Bills. It is obvious that who so ever will prepare the Pay Bill, he has to maintain the records of GPF/CPF and other relevant records attached with Pay Bill. This shows the ulterior motives of Shri Lotan to malign the office. This act of Sh. Lotan of non compliance of orders of the Competent Authority and indulging in undesirable and unnecessary correspondence attracts conduct rules.
On 18.6.2007, a letter no. S-26/Health-14/2005/SSW-II dated 6.6.2007 was received from National Commission for Scheduled Caste forwarding therewith a copy of the representation dated 25.5.2007 addressed by Sh. Lotan to (6 of 13) [CW-1029/2017] the Commission which inter alia referred to some complaints/inquiries which have already been settled/closed. Raising of such matters on 25.5.2007 when he had already been given personal hearing (Exhibit 2) by the Appellate Authority (Director General, ICMR) on 24.5.2007 brings forth contrary to this statement "Further, the Appellant stated that he did not consider that any action of the Disciplinary Authority at any time was the result of any sense of discrimination on Caste Consideration against the Appellant", the fact that he continues to act of giving cast color to his belonging to reserved category by alleging his superior officers to malign their image. The above act of Sh. Lotan needs serious consideration.
Though the matter was again clarified to the National Commission for Scheduled Caste through our letter dated 26.6.2007 (Exhibit 3) and there is no further correspondence from their end. But his act of addressing the Commission immediately after meeting the Appellate Authority also indicate his ulterior motives. Further it is noted that after his reinstatement, Sh. Lotan had made an appeal to the Director General, ICMR referring to some very old orders dated 7.12.2001, 2.2.2002 and 20.4.2004 raising inter alia the matter of deduction of 52 days EL under orders issued in 1999. This representation dated 9.7.2007 has been sent to the Appellate Authority directly, without following the procedure of proper channel. In this representation also he had made caste related assertions. It is unfortunate that Sh. Lotan is continuing to make wild allegations of caste bias on the then Officer-in- Charge (Dr. R.C. Sharma) by name, whereas, the whole matter of deduction of 52 days EL was decided and ordered by the then Officer-in-Charge in 1999-2000 (before Dr. R.C. Sharma became Officer-in-Charge). Thus allegation against Dr.Sharma has no substance. On the contrary it was Dr. Sharma who got his matter inquired into & reviewed by two outside/independent officers of the reserved category and as per their finding also the decision of the former Director-in-Charge, who was predecessor of Dr. Sharma, was as per the rules (Exhibit 4). It may be mentioned here that the appeal of Sh. Lotan was considered by ICMR and no grounds were found to warrant any revision of the decision taken in this matter. This was communicated to Sh. Lotan. Now, Shri Lotan has filed a petition before CAT Jodhpur for the above matter.
A copy of order regarding suspension of Smt. Sohani Devi, Peon was marked to Sh. Lotan by name with the (7 of 13) [CW-1029/2017] view that Smt. Sohani Devi was working in his section and also Sh. Lotan being looking after matters regarding SC/ST/OBC/General. Sh. Lotan raised the point by submitting representation as to why the copy of the order has been marked to him by his name indulging himself thereby in unnecessary and undesirable correspondence. Smt. Sohani Devi, Peon of the Centre, submitted her reply to the Charge-Sheet issued to her which Sh. Lotan got received through Sh. Shamshad Ali, UDC as Smt. Chandrakala, UDC looking after the work of inward diary was on leave. Sh. Shamshad Ali gave it to Sh. Lotan and the said letter has not been received in the office till date. For the same, Sh. Lotan was called upon to inform the where about of the letter of Smt. Sohani Devi. The reply of Sh. Lotan that he gave the said letter on the next day to Sh. Ladu Ram, Peon for making entry in the internal diary register was found to be false, unsatisfactory and doing work with utmost irresponsibility. Sh. Lotan was advised to be careful and not to repeat the same in future.
It has been observed that Sh. Lotan has been abstaining himself from duty during the office hours and called upon to explain as to why he abstained himself without information and/or obtaining proper prior approval of the Administrative Officer/ Officer-in-Charge for leave/leaving the office for personal/official work. His explanation was found to be unsatisfactory and was therefore advised to be careful in the future (Exhibit 5).
The act of making copies to his superiors including the Officer-in-Charge of the letters/circulars/memorandums etc. issued by him to the staff working under him indicates that Sh. Lotan has no knowledge of official procedures/rules and for this he was advised not to repeat such acts in future (Exhibit 6). However, he has raised this matter through his advocate and giving the caste bias color to the matter. The advocate has been given suitable reply separately. It may be emphasized that for every office/administrative matter, Sh. S.K. Lotan is making them caste bias to tarnish and malign the image of his superior officers of this Centre, which again shows his ulterior motive against his superiors. Sh. Lotan was entrusted with the work of preparing interest bearing & no-interest bearing registers and physical verification of store (Exhibit 7). It has been observed that instead doing the work, he indulged himself in undesirable and unnecessary correspondence wasting thereby time of his own as well as the office. In fact, it appears that Sh. Lotan does not know the work of physical verification of the store. He has been given full support and assistance by the staff attached with him for the above work but lack of knowledge of work and (8 of 13) [CW-1029/2017] supervisory capabilities, he failed to do the assigned the work. The Officer-in-Charge has, therefore, entrusted the work to other officers (Exhibit 8). Sh. Lotan has also raised such trivial matter through his advocate, making the issue caste bias which again indicate his ulterior motives.
All the staff members working in the administration were advised to maintain their daily diary and furnish the same to the Administrative Officer. Sh. Lotan did not comply to the orders and raised question that there is no question of his maintaining daily diary as he is an officer and not an employee. He has further raised this matter through his advocate and related with caste bias. The advocate has been suitably replied. This act of Sh. Lotan of non- compliance of the orders of the Competent Authority and making the issue caste bias indicate his disobedience and disrespect to his superiors.
It has been observed that Sh. S.K. Lotan is not able to take work or guide his subordinates for the work assigned to his section which shows his lacking in supervisory capabilities. Moreover he is in the habit of alleging his colleagues and subordinates for his non-performance. In this context, it is worth mentioning that he has mentioned in one of his office replies that he has relived Smt. Neelam Devi and Sh. Dharmpal, Assistants from his section for which he is not competent to do so (Exhibit 9). His act is most undesirable and against the administrative rules. Recently, he has sent a letter to Smt. Chanderkala, UDC by post regarding receipt of letters (Exhibit 10), which is most undesirable and unbecoming of a Govt. servant for which he has neither sought any approval of the Competent Authority nor put up the matter on file for seeking approval to issue such letters. Thus, creating a non-congenial atmosphere of work with his colleagues. He has also raised the point for Accounts Section for not functioning and not reconciling the accounts properly, which is not true because Sh. Lotan does not know the procedure of accounting system. It may also be mentioned here that the Centre stood first in submission of its accounts correctly and in time as well to the Council for the last two years. Sh. Lotan has, thus, been making wild allegations against other sections of the Centre. Since the information regarding depositing of cash refunded by the staff or received from outside is not being submitted to the accounts section timely, Sh. S.K. Lotan being in-charge of the imprest management work and Sh. Dharmpal doing the job of cashier were called upon to explain for the delay by the Drawing and Disbursing Officer. Upon this he made wild allegations against his colleagues and sections and also managed a note in this regard from Sh. Dharmapal against Sh. N.K. Bajaj, (9 of 13) [CW-1029/2017] Section Officer, which clearly appears to be his manipulative skills.
On the basis of information given by Sh.S.K.Lotan, a notice dated 28.11.2007 was received from Sh.Rajendra Bhatia, Advocate, Rajasthan High Court, Jodhpur in the name of Dr.R.C.Sharma, Officer-in-Charge, Dr.Karam Vir Singh, Deputy Director & Head of Office, Sh.Anup Sarin, Administrative Officer/Accounts Officer & Sh.S.C.Sharma, Ex-Administrative Officer to explain as to why the above officers are harassing to Sh.S.K.Lotan being him belonging to Schedule Caste category. It may further be mentioned that the Officer-in-Charge was on official tour on the day Sh.Lotan resumed his duty on 11.6.2007. In this context, it is stated that the Centre has no problem with Sh.Lotan of him belonging to a Scheduled Caste category and the above officers of the Centre have issued letters to Sh.Lotan within the administrative norms for carrying out the work efficiently in the best interest of the Centre and not in their individual capacity. Therefore, the act of Shri Lotan through his advocate Shr.Bhatia of addressing the letter by name is not in order. The allegations made in the above referred letter of Sh.Bhatia on behalf of Shri Lotan were baseless, false and having no truth in it. Hence, all the allegations were denied and replied suitably. Usually such complaints should have been addressed to the Directror General, ICMR, but instead of this Shri Lotan preferred to send a Legal Notice through advocate shows his ill intention against these officers. Consequent upon receipt of notice from the advocate on behalf of Shri Lotan, the Competent Authority constituted a Review Group to review the matter and submit its report. The Review Group found that Sh.S.K.Lotan, Section Officer has indulged himself in non-compliance of orders of the Competent Authority, non-performance of assigned duties, undesirable and unnecessary correspondence and writing letters to different organizations by making the office matters caste bias to gain the sympathy, lack of supervisory capability, alleging by making wild allegation against his colleagues and subordinates, lack in shouldering responsibilities to discharge assigned duties ever since he has been reinstated (Exhibit
11).
Shri Lotan was issued a Show Cause Notice on 21 st January 2008. First he insisted that Show Cause Notice be given in Hindi and when Hindi version was served to him, he refused to receive the same. In the meanwhile the Officer-in-Charge retired on superannuation and new Officer-in-Charge was appointed. Again, Shri Lotan was issued two (10 of 13) [CW-1029/2017] reminders dated 11th February & 11th March 2008 (Exhibit 12 & 13) directing him to submit his reply to the Show Cause Notice, which he did not. Few acts of commission and omission of Shri S.K.Lotan, Section Officer are as under:
1. Does not comply with the orders of his superiors. Ever since he has been reinstated on 11th June 2007, he is not obeying the orders issued to him.
Instead, he has been indulged in uncalled for and irrelevant correspondence. For his acts of commission and omission, he was issued Show Cause Notice dated 21st January 2008 and subsequent reminders dated 11 th February & 11th March 2008 by the Disciplinary Authority but he has not replied the same till date. This comes under willful insubordination and non-compliance of orders of Competent Authority and unbecoming on the part of Shri Lotan under conduct rules.
2. Disobedient: He disobeys the orders of his superiors such as maintenance of Daily Diary, distribution of work, receipt of weighing machine to be attached with the Franking machine, physical verification of stores, preparation of Interest & Non-interest bearing registers etc.
3. Non-performance of assigned duties: He refused to do the work mentioning that he has been punished for the same earlier. He has refused to complete the Rosters and written uncalled, irrelevant and baseless notes on the file which is unbecoming on the part of a Govt. servant. He did not comply with the orders to make Interest & Non-interest bearing registers properly and submitting to his superiors.
4. Non co-operative to his fellow colleagues: He never guides the fellow colleagues properly about the rules & regulations but writes notes on the files which results in demoralizing the subordinate staff and created a non-congenial atmosphere.
5. Give Caste Colour to all administrative matters and write letters to outside organizations/officers, including National Scheduled Caste Commission, Ministry of Health & Family Welfare, Director-General, ICMR, legal Notice etc., thus, defaming the Centre and its officers with ulterior motive. To quote an example, Shri Lotan was served with a memorandum dated 11 th May 2008 for not performing the duties assigned to him, Shri Lotan wrote a letter to the Commissioner, National Scheduled Caste Commission, New Delhi, thus, making the official matter caste biased.
6. Lack of supervisory capability: He always passes (11 of 13) [CW-1029/2017] his responsibility to his subordinates and in few cases he has relieved them from the section. Thus, lacks in supervisory capability to motivate and inspire the staff through team spirit. He is also making wild allegations against his colleagues and subordinates. Keeping in view the above facts, it was decided in consultation with the Director of the Centre to stop giving him work and the staff under the applicant was directed to submit their work to the other Section Officer. As mentioned above that Shri Lotan indulges himself in writing uncalled for, irrelevant & baseless notes on files and writes letters which results in wastage of time, manpower and cause unnecessary disruptions in smooth functioning of office work. Hence, it was decided not to receive such letters from him. He himself is not receiving the letters served on him and subsequently are sent by post. It is worth mentioning that the address given by him for correspondence is 4 l 19 pkSikluh gkÅflax cksMZ tks/kiqj- 392005 whereas, he is actually residing at lh-157, d`".kk uxj ikyh jksM tks/kiqj and from both the addresses, letters have been received back with remarks that "the receiver has refused to receive the letter (Exhibit 14). It may further be mentioned that in his Medical Reimbursement bills, Shri Lotan mentions his address C-157, Krishna Nagar, Jodhpur (Exhibit 15) and for correspondence he mentions 4 l 19 pkSikluh gkÅflax cksMZ tks/kiqj--392005 (Exhibit 16). This is resulting in lot of wastage of time & public funds. Under the circumstance explained above, the above committee is of the opinion that Shri S.K.Lotan is highly incompetent, disobedient, undisciplined officer trying to gain advantage of being Scheduled Caste in every trivial office matter giving caste colour which is very unfortunate. A sufficient time of one & half year was given to him to improve himself, which he failed till date. Thus, to create a good congenial working atmosphere the committee recommends stringent disciplinary punishment against Shri Lotan in the form of either
1. Compulsory Retirement under FR 56(j) or
2. Other capital punishment like dismissal from the Service."
7. Based on the recommendations of the Review Committee order dated 3.2.2009 was passed compulsorily retiring the (12 of 13) [CW-1029/2017] petitioner.
8. A perusal of the report of the Review Committee would show that there is not even a mention therein to the ACRs of the petitioner. The acts of commission and omission being six in number listed by the Committee towards the end of its recommendations are findings of fact akin to incriminating findings on which disciplinary penal action can be taken. Conscious of the said fact the Screening Committee recommended either compulsory retirement under FR 56(j) or a punishment like dismissal from service.
9. It is apparent that the Screening Committee has misdirected itself. The job of the Screening Committee was to look into the entire service records with emphasis on the ACRs of the petitioner.
10. Regretfully the Tribunal decided the matter without calling for the records of the Screening Committee.
11. Since we find that power under FR 56(j) has been used colourably we dispose of the petition quashing the order compulsorily retiring the petitioner under FR 56(j). We note that the petitioner has since attained the age of superannuation and thus we do not order his reinstatement but declare that the petitioner would be entitled to be treated to be in service till he would have attained the age of superannuation. Since as a result of the petitioner being compulsorily retired pension has been paid to him we direct that granting consequential benefits of pay to the petitioner pension received by him would be adjusted. The petitioner would be entitled to be treated in service for all purposes till he would have superannuated on attaining the age of (13 of 13) [CW-1029/2017] superannuation.
12. No cost.
(RAMCHANDRA SINGH JHALA)J. (PRADEEP NANDRAJOG)CJ.
Parmar