Central Administrative Tribunal - Delhi
Sh. Har Bhajan Singh vs The Union Of India And Others Through on 2 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 497/2010 New Delhi this the 2nd day of November, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Sh. Har Bhajan Singh, S/o Shri Sunder Singh, R/o A-983 Gharoli Dairy Farm, Mayur Vihar, Phase-III, New Delhi Applicant (Through Shri M.K. Bhardwaj, Advocate) VERSUS The Union of India and others through 1. The Secretary, Ministry of Consumer Affairs Food and Public Distribution, Department of Consumer Affairs, Krishi Bhawan, New Delhi. 2. The Director, Legal Metrology, Room No. 461 A, Krishi Bhawan, New Delhi. 3. Sh.P.A. Krishnamurthy, The then Director, Legal Metrology, Serving as Project Manager, CTZ, Barak No. 2/12, Jam Nagar House, New Delhi. Respondents (By Advocate Ms.Avinash Kaur) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
Sh. Harbhajan Singh, Deputy Director in the Department of Consumer Affairs is aggrieved by the imposition of penalty, by order dated 1.01.2010, of reduction by one stage in his basic pay in the time scale of pay for a period of one year with effect from the date of the order of penalty with further direction that he will not earn increments of pay during the period of reduction and on the expiry of this period the reduction will have the effect of postponing his future increments of pay. By order dated 12.01.2010, the Department of Consumer Affairs made the order of punishment effective. Both these orders have been assailed in this OA.
2. The facts of the case, as are necessary for the adjudication of this OA, have been narrated hereafter. The Applicant was posted as Deputy Director at the Regional Reference Standard Laboratory (RRSL), Ahmedabad during the years 1997 to 2000. He was transferred from Ahmedabad to RRSL Guwahati in 2000. On 2.10.2003 a Memorandum of Charge under Rule 14 of the CCS (CCA) Rules, 1965 was issued to him conveying eight articles of charge. The statement of the articles of charge is reproduced below:
Article-1 That the said Sh. Harbhajan Singh while functioning as Dy. Director (LM) and head of office at Regional Reference Standard Laboratory (RRSL), Ahmedabad during the period 13.11.1997 to 30.11.1999 misbehaved with the staff of RRSL, Ahmedabad often threatening them with dire consequences. He presented himself indecently before Kumari S.V. Jadav, UDC, the only lady official posted at RRSL, Ahmedabad. He used unparliamentary language with the staff as well as senior officers in the presence of the office staff of RRSL, Ahmedabad.
Article-II That during the aforesaid period and while functioning in the aforesaid office, the said Shri Harbhajan Singh, Deputy Director misused his officials position by living unauthorizedly in the premises of RRSL, Ahmedabad even while he was drawing HRA.
Article-III That during the aforesaid period and while functioning in the aforesaid office, the said Shri Harbhajan Singh, Deputy Director misused the official vehicle of RRSL, Ahmedabad for personal use without maintaining Log Book. He also claimed local TA as part of his TA claim for his official tour, though he went to Ahmedabad Railway Station in official vehicle.
Article-IV That during the aforesaid period and while functioning in the aforesaid office, the said Shri Harbhajan Singh, Deputy Director misused the official telephone installed in the RRSL, Ahmedabad by making personal trunk calls to his residence in Delhi and certifying those calls as official calls.
Article-V That during the aforesaid period and while functioning in the aforesaid office, the said Shri Harbhajan Singh, Deputy Director engaged a casual labour namely Sh.D.P. Singh without the valid expenditure sanction of the competent authority and allowed him to continue working till the completion of 240 days of casual engagement so as to enable him to claim appointment on a regular basis.
Article-VI That during the aforesaid period and while functioning in the aforesaid office, the said Shri Harbhajan Singh, Deputy Director presented a false claim of double HRA during his posting in the RRSL, Guwahati. This was despite the fact that Sh. Harbhajan Singh had claimed and was also sanctioned transfer TA for shifting his family from Ahmedabad, his last place of posting to Guwahati, his present place of posting.
Article-VII That during the aforesaid period and while functioning in the present place of posting at Guwahati, the said Shri Harbhajan Singh, Deputy Director remained absent unauthorizedly from his head quarters i.e. RRSL, Guwahati (i) from 20.4.2001 to 7.5.2001; (ii) from 14.5.2001 to 15.5.2001; and (iii) 13.6.2001 to 18.6.2001.
Article-VIII That during the aforesaid period and while functioning in the RRSL, Guwahati, the said Shri Harbhajan Singh, Deputy Director deliberately delayed the release of payment to the suppliers thus causing administrative problems and bringing bad reputation to the department. The enquiry officer in his report held charges in Articles IV, V and VI to have been established, charge in Article II to be partly proved and the charges in Articles I, III, VII and VIII to be not proved. The report of the enquiry authority was forwarded to the Applicant for his representation, which was given by him on 10.11.2004. The report of the enquiry authority was sent to the Central Vigilance Commission (CVC) for the second stage advice. The CVC advised imposition of a suitable major penalty on the Applicant. The matter was then sent to the Union Public Service Commission (UPSC) for seeking its advice with regard to the quantum of punishment. The UPSC advised that the proceedings against the Applicant should be dropped and he should be absolved of all the charges. The disciplinary authority disagreed over all with the UPSC and punishment was awarded to the Applicant.
3. The learned counsel for the Applicant contended that the copy of the second stage advice of the CVC was not given to the Applicant. The said advice should have been given along with the copy of the report of the enquiry authority. The learned counsel for the Applicant would contend that the second stage advice of the CVC was given to him only on 13.01.2010, after imposing punishment by order dated 01.01.2010. The second plea taken by the learned counsel is that the Memorandum of Charge was issued after nearly ten to eight years of the alleged misconduct. He would contend that the delay had caused serious prejudice to him in defending himself in the enquiry.
4. The only contention on behalf of the Respondents is that no prejudice has been caused to the Applicant by not giving him the copy of the advice of CVC and, in any case, the copy of the advice was given to the charged officer.
5. The issue regarding not providing the second stage advice of the CVC has been considered by the Honourable Supreme Court in State Bank of India and others Vs. D. C. Aggarwal and another, (1993) 1 SCC 13. It was observed thus:
4. Although correctness of the order passed by the High Court was assailed from various aspects, including the power of the High Court to interfere on quantum of punishment, in writ jurisdiction, but we propose to confine only to the question of effect of non-supply of CVC recommendations and if the order was invalid and void on this score only it is not necessary to decide any other issue. Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered at times, that such bodies like State Bank of India, who are assisted by a hierarchy of law officers, commit such basic and fundamental procedural errors that courts are left with no option except to set aside such orders. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself. In this case, the enquiry officer found two charges against the Applicant to be proved and recommended exoneration of the Applicant on the ground that the charges found to be proved were minor and of procedural nature. It appears that the Bank where Mr. D.C. Aggarwal was employed, directed the enquiry officer to submit the report through the CVC. The CVC examined the report and recorded its own findings on each of the charges and sent its recommendations to the Bank and advised imposition of a major penalty not less than removal from service. It is observed in the above judgment of the Apex Court that the Bank turned down the request of the Respondent (in that case) for a copy of the CVCs recommendations on the ground that the correspondence with the CVC is a privileged communication. In this context, the Apex Court has further observed as follows :
.Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the disciplinary authority. May be that the disciplinary authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order. Non-supply of the Vigilance report was one of the grounds taken in appeal. But that was so because the respondent prior to service of the order passed by the disciplinary authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned Additional Solicitor General that CVC recommendations are confidential, copy of which, could not be supplied cannot be accepted. Recommendations of Vigilance prior to initiation of proceedings are different than CVC recommendation which was the basis of the order passed by the disciplinary authority. The question of no prejudice being caused to the charged officer was also raised in the aforesaid case before the Honourable Supreme Court and answered thus:
Even the submission of no prejudice is not well founded. It is also important to note that in view of the advice of the UPSC to drop the charges against the Applicant, he has been punished mainly on CVCs advice, which makes it all the more necessary that it should have been given to the Applicant.
6. The delay caused in the service of the charge sheet cannot be considered after the enquiry is over, in which the Applicant has fully participated and not once raised the plea of prejudice due to delayed Memorandum of Charge before the enquiry authority or the disciplinary authority. In Government of A.P. Vs. Appala Swamy, (2007) 14 SCC 49, the Honourable Supreme Court has held that the issue of prejudice should be raised before the enquiry authority. The Applicant has not done so in the whole process of the enquiry. We are, therefore, not considering it.
7. In the result the OA succeeds on the ground that the second stage advice of the CVC was not given to the Applicant, which is a fatal error in the procedure followed. The impugned order of the disciplinary authority is quashed and set aside. The Respondents would have the liberty to proceed afresh from the stage of supply of the advice of the CVC along with the report of the enquiry authority and ask for the Applicants explanation and then pass the order after considering the same. This direction should be complied with within three months of the receipt of a copy of this order. Consequential benefits will abide by the final order, as we have set aside the impugned order on technical ground. No costs.
( L.K.Joshi ) ( V.K.Bali) Vice Chairman (A) Chairman /dkm/