Central Administrative Tribunal - Ernakulam
T Kasim vs Ut-Lakshadeep Administration on 9 April, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No.181/00186/2022
&
O.A No.181/00448/2022
Tuesday, this the 9th day of April, 2024.
CORAM:
HON'BLE Mr. JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr. K.V. EAPEN, ADMINISTRATIVE MEMBER
O.A No.186/2022
T. Kasim, aged 59 years, S/o Adima AC,
Block Development Officer, Chetlath,
residing at Therakkal House, Kadamat.
-Applicant
[By Advocate : Mr. R. Sreeraj]
Versus
1. The Administrator, Union Territory of Lakshadweep,
Kavaratti- 68255.
2. Union of India represented by its Secretary to the
Government of India, Ministry of Home Affairs,
New Delhi-110001.
-Respondents
[By Advocate : Mrs. Sreekala K.L, SPC for R-1 & Mrs. Sheela Devi I,
SPC for R-2,]
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O.A No.448/2022
T. Kasim, aged 60 years, S/o Adima AC, Retired Block Development
Officer, Chetlath, Union Territory of Lakshadweep
Residing at Therakkal House, Kadamat, Union Territory of
Lakshadweep. -Applicant
[By Advocate : Mr. R. Sreeraj]
Versus
1. The Administrator, Union Territory of Lakshadweep,
Kavaratti-682555.
2. The Advisor to the Administrator cum Principal Secretary,
Lakshadweep Administration, Collectorate, Kavaratti-682555.
3. The Inquiry Officer, The Special Secretary (Services/Home),
Office of the Special Secretary Finance & Planning,
Ground Floor, Lakshadweep Administration, Old District Panchayat
Building, Secretariat Complex, Kavaratti-682555.
4. Union of India represented by its Secretary to the
Government of India, Ministry of Home Affairs, New Delhi-
-Respondents
[By Advocate : Mr. Sreedutt S, ACGSC for R-4 & Mrs. Sreekala K.L,
SPC for R-1 to 3]
The Original Application having been heard on 18.03.2024, the
Tribunal on 09.04.2024 delivered the following:
O R D E R:-
K.V. Eapen, Administrative Member The two O.As, which have been filed by the same applicant, are in relation to his suspension from service and initiation of departmental 3 proceedings. They are taken together for a common order.
2. O.A No.448/2022 has been filed by the applicant who is a retired Block Development Officer, (a part of the Central Civil Service Group-B) in the Union Territory of Lakshadweep. The O.A has been filed to quash the departmental proceedings initiated against him, vide the Charge Memorandum dated 23.06.2022 at Annexure A1. It is submitted by the applicant that the proposal to hold an inquiry against him is without jurisdiction and also without any factual background or foundation. The Charge Memorandum at Annexure A1 is issued by the 2 nd respondent, Advisor to the Administrator cum Principal Secretary, Lakshadweep Administration, Kavaratti. It is submitted by the applicant that the said 2 nd respondent, who has issued the Charge Memorandum, is not competent to initiate the inquiry against him, as per the provisions of the CCS (CCA) Rules, 1965, as he is a retired Central Civil Services (CCS, Group-B) Officer. The Competent Authority to impose penalties with reference to Rule 11 is indicated at Serial No.32 (v) of Part II of the Schedule attached to the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for CCS (Group B) officers as the 'Administrator' Union Territory of Lakshadweep.
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3. The applicant submits that was placed under suspension while working as Block Development Officer, Chetlath in Lakshadweep. Prior to that, he had rendered 39 years of service under the Lakshadweep Administration. He was then about to retire on 30.06.2022 when the Charge Memorandum dated 23.06.2022 at Annexure A1 was issued on him. Earlier to that, he had been placed under suspension on 02.04.2022, vide the order produced at Annexure A2, by the Administrator, UT of Lakshadweep in exercise of the powers conferred under sub Rule (1) of Rule 10 of the CCS (CCA) Rules, 1965. The reason given in the suspension order dated 02.04.2022 at Annexure A2 was that a disciplinary proceeding was being contemplated against him 'for turning hostile in a CBI case during trial'. In this connection, the applicant submits that he had been 'questioned' by the Central Bureau of Investigation (CBI) under Section 161 of the Code of Criminal Procedure (CrPC) on 27.06.2009, while he had been working as SDO, Kavaratti. The matter was in connection with a land sale agreement between two parties. A copy of the said Section 161 statement alleged to have been given by him on 27.06.2009 is produced at Annexure A3. It is submitted by the applicant that the last two sentences in the said Annexure A3 statement were not given by him but have been recorded by the investigating officer on his own accord. He submits that since it was a 5 statement under Section 161 of the CrPC, he was also not required to sign it. Nor was the statement shown or read over to him.
4. In any case, almost 10 years after the statement was given in 2009, the applicant was examined as Public Witness ''PW-19'' in CC 1/2011 registered by the CBI on 21.01.2019 in the Court of Special Judge for CBI cases, Kavaratti. During the said examination, he was declared hostile and had been confronted by the Public Prosecutor in a cross examination in connection with the statement at Annexure A3. The applicant denied the suggestion that he had given a contrary statement to the Investigating Officer. He submitted that he stood firm in his deposition in relation to what he had actually stated in 2009. A copy of his deposition in CC 1/2011 on 21.01.2019 has been produced by him at Annexure A4. He submits that consequent to his examination in CC 1/2011, the CBI seems to have reported to the Lakshadweep Administration that his deposition before the Court, had been against the prosecution case as well as in contradiction to his previous statement. It was stated that his conduct had thus given undue advantage to the accused. Thereafter, purportedly acting on the basis of a Central Vigilance Commission (CVC) Order No.73/12/2005 dated 15.12.2005, the 1st respondent, Administrator, Union Territory of 6 Lakshadweep issued a notice asking him to show cause as to why disciplinary action should not be initiated against him under Rule 14 of the CCS (CCA) Rules, 1965. The applicant has produced a copy of this show cause notice dated 30.10.2019 at Annexure A5. Further, a copy of the aforementioned Order of the CVC No.73/12/2005 dated 15.12.2005 which was issued in relation to action against public servants serving as witnesses but turning hostile in trap and other cases of CBI, has been produced at Annexure A6.
5. It is the contention of the applicant that the Annexure A6 order of the Central Vigilance Commission has no application to the facts and circumstances of his case. It is submitted by him that the order at Annexure A6 is about Government servants who are being utilised as witnesses in cases of search, trap etc. It is noted in the Order that the CBI had brought to the notice of the CVC that, in a large number of cases, Government servants who were engaged as witnesses, were found to be resiling their original statements during trial on the plea that they had signed the Memorandum without reading the contents or that they had not witnessed the real proceedings etc. It is contended by the applicant that the phrase used in the said Order at Annexure A6 such as "who are engaged as such witnesses" 7
only refers to ''witnesses in cases of search, trap etc'' and to them alone. It is submitted that paragraph 2 of the said Order indicates that "it is obvious that these public servants, whose services are utilised by the CBI, are turning hostile for ulterior reasons". It is thus the applicant's contention that the phrase "whose services are thus utilised" means only those whose services are utilised as ''witnesses in cases of search, trap etc''. Also, the usage of the term "etc" after "search/trap" would not bring the present case within the purview of the Annexure A6 order, because of the principle of ejusdem generis. It is submitted that his case is drastically different from that of a witness in cases of trap, search etc, but is fully relied upon while issuing the Charge Memorandum at Annexure A1 on him. This is exhibited by its mention in the Statement of Imputation of Misconduct in the Charge Memorandum.
6. In any case, pursuant to the show cause notice at Annexure A5, it is submitted that he had submitted a reply to the 1 st respondent. He had denied that he had said anything before the Hon'ble Court intending to give undue advantage to the accused. He submitted that his statement under Section 161 of CrPC had been altered. He had felt it his duty and responsibility to depose the true and correct facts before the Hon'ble CBI Court. He also 8 submitted that any allegation triggered by the CBI by a report to the Administration would not fall under the category of misconduct, criminal wrong or an action against the State. Further, as explained above, the CVC order at Annexure A6 has no application in the facts of his case. A copy of the representation submitted by the applicant in reply to the show cause notice has been produced at Annexure A7.
7. The applicant then submits that after the representation dated 13.11.2019 at Annexure A7 was submitted by him to the Administrator, nothing more was heard from the respondents for more than two years. Then suddenly out of the blue, when his pension papers were being processed due to his impending retirement from service, the Annexure A2 order was issued on 02.04.2022 placing him under suspension with immediate effect on the ground that a disciplinary proceeding was being contemplated. He then filed the linked O.A No.181/186/2022 before this Tribunal. After this, just 7 days prior to his retirement from service on superannuation, he was issued the Charge Memorandum produced at Annexure A1 on 23.06.2022. He submitted a written statement, as required by the Memorandum, within the time stipulated, explaining why the proposal to hold an inquiry against him was not tenable. He again took the 9 ground in the written statement of defence, produced at Annexure A9, that the order of the CVC at Annexure A6 had no application to his case. All allegations of misconduct were categorically denied. However, contrary to his expectation that the respondents will drop the proposed proceedings, the applicant submits that, by order of the 2 nd respondent, Advisor to the Administrator, the Additional District Magistrate, Collectorate, Kavaratti, issued an order dated 22.07.2022, produced as the impugned order at Annexure A9, appointing an Inquiry Officer to inquire into the charges against him. The Inquiring Authority so appointed is the 3 rd respondent, Special Secretary Services/Home, UT of Lakshadweep.
8. It is the contention of the applicant that the initiation of the disciplinary proceedings against him is illegal as Annexure A1 Memorandum proposing to hold the inquiry against him has been issued by the 2nd respondent, who is the Advisor to the Administrator. It is submitted that the 2nd respondent is not competent to function as the Disciplinary Authority of the applicant. Further, the initiation of the proceedings itself is in any case arbitrary and hit by legal malice, since the same is solely on the strength of the Annexure A6 order of the Central Vigilance Commission, which is in no way applicable to the facts of his case. It is submitted by the 10 applicant that Rule 14 (2) of the CCS (CCA) Rules empowers the Disciplinary Authority to inquire into or appoint an authority to inquire into the allegations of misconduct alleged against a Government servant. Rule 14 (3) casts a duty to draw up the Memorandum of Charges on the Disciplinary Authority himself or to cause it to be drawn up. It is thus beyond any dispute that the Disciplinary Authority alone can initiate a disciplinary proceeding against the charged Government servant.
9. In this connection, the applicant also points to Rule 12 of the CCS (CCA) Rules which is in respect of Disciplinary Authorities. As per Rule 12 (2) (b) ibid, the penalties specified in Rule 11 can be imposed on a Government servant as far as a person appointed to a Central Civil Services Group B post included in the General Central Service is concerned by only 3 categories of persons as the Disciplinary Authority. They are, (a) by an authority specified in this behalf by a general or special order of the President or, where no such order has been made, (b) by the Appointing Authority or (c) the authority specified in the Schedule in this behalf. It is submitted by the applicant in this context that relevant in his case, there is no general or special order by the President specifying in any way the 2 nd respondent, 'Advisor to the Administrator', as the Disciplinary Authority for 11 the Central Services Group B posts in Lakshadweep. As already noted the Part II of the Schedule at Serial No.32 (v) has indicated that it is only the 1 st respondent (and not the 2 nd respondent) who is the Appointing as well as the Disciplinary Authority. Since it is the 1st respondent, the Administrator of the Union Territory of Lakshadweep, who is the Disciplinary Authority of the applicant, who was a Central Civil Services Group B Officer, only the said 1st respondent, Administrator of UT of Lakshadweep can issue Annexure A1 Memorandum and the Annexure A9 order appointing the 3 rd respondent as Inquiry Officer. Hence, both Annexure A1 Charge Memorandum and Annexure A9 Order fail on account of non competence and lack of jurisdiction.
10. It is submitted that jurisdiction or competency is something that goes to the root of an administrative action. If a particular thing is to be done in a particular manner by a particular authority, it has to be done in that manner by that authority alone. There is no escape from the said requirement on any pretext. It is contended by the applicant that no subsequent ratification can validate an action which was without jurisdiction in the beginning. The applicant refers to Laxman Dandappa Dhamnekar vs Management of Vishwa Bharati Seva Samiti [2001 8 SCC 378] in support that a 12 disciplinary action cannot be based on the breach of non statutory rules or administrative instructions which do not supplement rules or are inconsistent with them. In this case he submits that the disciplinary action against him was based solely on the Annexure A6 order of the Central Vigilance Commission. The Annexure A6 order is being read into the CCS (Conduct) Rules to make him guilty of misconduct. But for Annexure A6, the 2nd respondent has no case that the applicant had violated the requirements of the statutory CCS (Conduct) Rules, 1964.
11. In this connection the applicant again reiterates that the Annexure A6 order pertains only to government servants who, after actively participating in a trap, search etc. resile from their previous signed statements on flimsy grounds. In the present case, the situation was entirely different. There was no trap/search involved. Nor was there any signature on the statement prepared after a search/trap. The applicant had registered a sale deed in his official capacity as SDO. The Annexure A3 statement was a questioning under Section 161 CrPC and such a statement recorded has no evidentiary value at all. It only forms part of the case diary of the inquiring agency. It is not a signed statement. In any case, the last two sentences in the statement cannot be attributed to him and were only added by the 13 Investigating Officer to suit his own convenience. The applicant submits that he had only deposed the truth in the matter as a responsible Government servant. This does not amount to him resiling from his previous statement as contemplated in the Annexure A6 order of the Central Vigilance Commission. It is reiterated that Annexure A6 order is only in relation to deviation from previous signed statements from Government servants whose services were utilised in trap/search cases.
12. Thus, the applicant has relied on a couple of factors to make his case. First, it is his contention that it is only the 1 st respondent who can be the Disciplinary Authority. It was the 1 st respondent who had issued the Annexure A5 Show Cause Notice and had obtained the Annexure A7 reply to it. However, thereafter, it appears that the 2 nd respondent, who is a non- competent person, who initiated the disciplinary action by issuing Annexure A1 Memorandum. The 2nd respondent is in other words, an usurper in so far as the jurisdiction regarding initiation of the disciplinary action against a Central Services Group-B Officer is concerned. The applicant, therefore, submits that a Memorandum of Charge can be successfully assailed and subjected to judicial review on the ground that it is not in conformity with law or discloses bias or prejudgment or non application of mind. The 14 second factor that is contended by the applicant is that a Memorandum of Charge can also be assailed or reviewed if it doesn't disclose any misconduct, i.e., if it is vague or based on stale allegations or it is issued malafide or by an incompetent authority (Govt of AP vs MA Majeed (2006 8 SLR (AP-FB) 243). In the present case, it is submitted that the Annexure A1 Memorandum was not issued in conformity with the law which is the CCS (CCA) Rules. It has disclosed bias or prejudgment of guilt of the applicant. There is complete lack of application of mind. Further, it does not disclose any misconduct and it is issued malafide by an incompetent authority. It also reveals bias by prejudging his guilt. The tone and tenor of the Article of Charge at Annexure A1 exposes this bias. A number of cases are relied upon by the applicant at Ground (G) of the O.A in support of the above position. He also submits that the trial in CC 1/2011 is not finally over. There are no observations made by the CBI Court regarding the deposition made by him. Hence, there is no basis or any material to prejudge him. He, therefore, submits that the issue of the Charge Memorandum and the manner in which it has been drawn up clearly demonstrates that he is not likely to get any justice at the hands of the respondents.
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13. The applicant, therefore, seeks relief to quash the Annexure A1 Memorandum of Charges as well as the Annexure A9 order appointing the 3rd respondent as Inquiry Officer. He further seeks a declaration that the 2 nd respondent is incompetent to initiate disciplinary proceedings against him by issuing the Memorandum of Charges and by appointing the Inquiry Officer as he is not the disciplinary authority of the applicant as per Rule 12(2) of the CCS (CCA) Rules read with Part II of the Schedule, Serial No.32 (v). Further, he seeks a declaration that Annexure A1 Memorandum of Charges and Annexure A9 order of appointment as Inquiry Officer are void abinitio. He also seeks a declaration that Annexure A6 order of the Central Vigilance Commission pertains to search/trap witnesses which has no application to the facts of the present case since his is a case which had arisen from a statement made under Section 161 of the Code of Criminal Procedure and that Annexure A1 Charge Memorandum does not disclose any misconduct on his part. Finally, he seeks a declaration that since he had retired from service on superannuation on 30.06.2022 and there was no properly constituted inquiry proceedings pending against him on that date and hence no proceedings against him is possible under the CCS (CCA) Rules.
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14. These points made in the O.A have been countered in a reply statement submitted by the respondents on 21.09.2022. It is accepted that the applicant was placed under suspension under order dated 02.04.2022, issued with the approval of the Administrator as the Disciplinary Authority, pending the initiation of disciplinary action. The applicant at that time was working as BDO at Chetlath and was a Group-B gazetted Government employee. It is stated in the reply statement that the Memorandum of Charge was issued by the Advisor to the Administrator, with the approval of the Administrator who is the Disciplinary Authority. It is submitted that the post of Development Commissioner of UT of Lakshadweep Administration had been re-designated as Advisor to the Administrator of UT of Lakshadweep for administrative convenience vide an order dated 06.12.2016. The post of Development Commissioner had been declared Head of the Department in terms of the Delegation of Financial Powers, 1978. It is submitted that the action of the respondent was not vitiated by malafide or arbitrariness. It is submitted that the disciplinary proceedings against the applicant were initiated complying with the statutory rules as the Memorandum of Charge was issued by the Advisor to the Administrator, Lakshadweep Administration with the approval of the Administrator, who is the Disciplinary Authority.
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15. It is submitted that the disciplinary proceedings had been drawn up against the applicant when a statement made by him to Investigating Officer in a CBI case was resiled by him. He had changed his stand to the prejudice the interest of the prosecution. This had been done by him without any justification and with the objective of favouring the accused. In his deposition given in 2019 in front of the Court, the applicant had stated that he had not mentioned to the Investigating Officer that the land value in 2008 may be more than the land value in 2005. However, he had actually done so in his statement at Annexure A3. As he was a prosecution witness and had given a statement inconsistent with his previous statement to the Investigating Officer, the Court had itself declared him hostile. This act of the applicant by turning hostile during the trial had the potential to undermine the case and was thus against the public interest. The CBI had informed the Administration about this act. Action for initiating disciplinary proceedings was initiated on receipt of the said letter from the CBI dated 06.08.2019. Accordingly, the show cause notice was issued to him on 30.10.2019.
16. It is submitted by the respondents that the Disciplinary Proceedings were not initiated with the intention to suspend the applicant on the verge of 18 retirement. It was necessitated by his act in turning hostile and affecting the case prejudicially. His conduct was of a serious nature as stated in the letter of the CBI and thus it was felt that it needed to be curbed effectively. The CVC in its office order at Annexure A6 dated 15.12.2005 had made it clear that if a Government servant who made a statement in course of a preliminary inquiry, changes his stand during evidence in the inquiry and if such action is without justification or with the objective of favouring one or the other party, then his conduct can be considered as a violation of Rule 3 of the Conduct Rules rendering him liable for disciplinary action. It was felt that the conduct of the applicant by turning hostile and giving a statement inconsistent with previous statements constituted violation of Rule 3 of the Conduct Rules. The Central Vigilance Commission had advised that such unhealthy tendencies on part of public servants needed to be curbed effectively. It had advised that such misconduct, whenever reported by the CBI, should be viewed with seriousness and necessary disciplinary action should be initiated promptly. It was in pursuance of this direction that the disciplinary proceedings had been initiated against the applicant. It was reiterated in the reply statement that the contention of the applicant that the disciplinary proceedings against him was illegal as the Memorandum of Charge was issued by the 2 nd respondent, who is not 19 competent to function as the Disciplinary Authority, is baseless. It is submitted that the Memorandum of Charge was issued with the approval of the Administrator of the UT of Lakshadweep. Hence, it is prayed that the O.A may be dismissed.
17. When the matter was under consideration of this Tribunal on 03.10.2023, it was submitted by the learned Senior Panel Counsel (SPC) for the Lakshadweep Administration that a document regarding the initiation of disciplinary proceedings against the applicant was being filed. Accordingly, M.A No.856/2023 to accept the document at Annexure R1(b) was filed by the SPC. Annexure R1(b) was the extract of the note sheet of the file dealing with the issue of the Charge Memorandum, etc. against the applicant. It is submitted in the M.A that the notes were regarding the ex- post facto approval given by the 1 st Miscellaneous Applicant, the Administrator of the Union Territory of Lakshadweep, to the Charge Memorandum/appointment of Inquiry Officer on 02.09.2023. In other words, it seems admitted from the documents produced at Annexure R1(b), that the issued Memorandum of Charges dated 23.06.2022 produced at Annexure A1, was not with the prior approval of the Administrator, the Disciplinary Authority. It seems to appear that the respondents had realised 20 that they had not got the approval of the Administrator, but had only got the approval of the Advisor of the Administrator and, hence, put up a note as per Annexure R1(b) only on 22.08.2023, soon after the O.A was filed. They then got the ex-post facto approval of the Administrator as the Disciplinary Authority for the issue of the Memorandum of Charge and the appointment of Inquiry Officer. Thus it is clear from the records at Annexure R1(b), that ex-post facto approval for the Memorandum of Charge/Charge Sheet originally framed and issued on 26.03.2022, the appointment of Inquiry Officer on 22.07.2022 and appointment of Presenting Officer on 22.07.2022 had been taken from the Administrator only in August/September 2023, as the Competent Disciplinary Authority.
18. Later, the respondents also filed M.A No.891/2023, enclosing with it Annexure R1(c), which is a copy of the note sheet of the file in relation to the approval of suspension of the applicant and the initiation of departmental proceedings against him. It was ordered by the Tribunal on 20.11.2023 to produce the entire file dealing with the initiation of departmental proceedings. The learned Senior Panel Counsel for the Lakshadweep Administration, Smt. K.L. Sreekala then produced the files on 13.12.2023. The learned Counsel for the applicant, Shri. R. Sreeraj was 21 allowed to peruse the documents. The learned Counsel for the applicant after perusal of the original documents produced by the respondents Counsel's submitted a statement on 20.02.2024. It was pointed out by Counsel that the respondents have admitted the fact that the 2 nd respondent, Advisor the the Administrator was neither the Disciplinary Authority of the applicant, nor that he was empowered on that behalf by the President. However, it was the case of the respondents in the reply statement that the 1st respondent, the Administrator had approved the institution of the departmental proceedings against the applicant. It was submitted by the learned Counsel that, as specified in Ground (D) of the Original Application, when a particular thing has to be done in a particular manner by a particular authority, it has to be done in the said manner by that authority only. In other words, when the disciplinary proceedings had to be instituted by the 1st respondent and him alone, the statutory requirement cannot be waived by the 1st respondent by empowering someone else on his behalf by a so called ex-post facto 'approval'. The respondents had produced a file note portion at Annexure R1(c) to substantiate their case that the 1st respondent had approved the institution of disciplinary proceedings against the applicant. However, it was contended that the written and approved file notes only reveal that while there was a proposal by the office 22 to place the applicant under suspension and also to institute disciplinary proceedings against him, however, ultimately, approval was given by the 1 st respondent was only for placing the applicant under suspension and not for instituting disciplinary proceedings. Thus, the portion of the file notes produced in the M.A No.891/2023 along with Annexure R1(c) has defeated the claim of the respondents that the 1 st respondent had in fact approved the institution of the disciplinary proceedings against the applicant.
19. It was further submitted by the learned Counsel for the applicant that after going through the file notes, it is revealed that between 02.04.2022, which was the date on which the applicant was placed under suspension by Annexure A2 and 23.06.2022, which was the date on which the Memorandum of Charge at Annexure A1 was issued, the covered matter/ file was not at all placed before the 1 st respondent, Administrator of the UT of Lakshadweep. Instead, the file was sent to the 2 nd respondent, Advisor to the Administrator, seeking approval for instituting disciplinary proceedings against the applicant. The learned Counsel for the applicant submits that it is crystal clear from the file that it was the 2 nd respondent who had given approval for instituting the disciplinary proceedings and not the 1 st respondent, who had only given approval for placing the applicant under 23 suspension. The 1st respondent had not given the approval for instituting disciplinary proceedings as otherwise, there was no further necessity for any further file notes during the period between 02.04.2022 and 23.06.2022. Likewise if approval for initiation of disciplinary proceedings had been given earlier, as is being contended by the applicants in their reply statement, then there was no necessity for getting an ex post facto approval during the adjudication of the O.A. It is submitted that the 1 st respondent, Administrator cannot absolve himself of the liability to institute the disciplinary proceedings. A subsequent approval by him cannot confer jurisdiction on the 2 nd respondent to have instituted the disciplinary proceedings against the applicant contrary to the statutory mandate in Rule 13 of the CCS (CCA) Rules, 1965. The files reveal that there was usurpation of the authority of the 1 st respondent, Administrator by the 2 nd respondent, Advisor in the case, which is leading to complete anarchy.
20. We have given our consideration to these contentions and have seen the records produced. It appears fairly established that there had been no prior approval of the Administrator, before the Charge Memorandum at Annexure A1 or the appointment of the Inquiry Officer vide Annexure A9 had been issued. Annexure A1 is dated as was noted earlier on 23.06.2022. 24 The Annexure A9 appointment of Inquiry officer is dated 22.07.2022. These documents have been issued either by the Advisor to the Administrator or through his approval. This procedure appears to be against the provisions of the relevant CCS (CCA) Rules, 1965 particularly Rule 13 which reads as follows:
''Rule 13. Authority to institute proceedings (1) The President or any other authority empowered by him by general or special order may-
(a) institute disciplinary proceedings against any Government servant;
(b) direct a Disciplinary Authority to institute disciplinary proceedings against any Government servant on whom that Disciplinary Authority is competent to impose under these rules any of the penalties specified in Rule
11.
(2) A Disciplinary Authority competent under these rules to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 11 notwithstanding that such Disciplinary Authority is not competent under these rules to impose any of the latter penalties.'' 25
21. It is clear that only a notified or specified Disciplinary Authority can institute the disciplinary proceedings against a Government servant. Further, as per the Part II of the Schedule, Serial No.32 (v) of the CCS (CCA) Rules, 1965, for the Lakshadweep Administration for all General Central Group 'B' posts, the Appointing Authority is the Administrator. The authority competent to impose penalties and penalties which it may impose (with reference to item numbers in Rule 11) is also the Administrator. Hence, it is the Administrator & him alone and not the Advisor who is the Disciplinary Authority of the applicant who is a Central Civil Services Group-B Officer. It is the only the Administrator who could have issued or approved to issue the Annexure A1 Charge Memorandum and the Annexure A9 order of appointment of the Inquiry Officer. It is also a fact that approval of the Administrator seems to have been taken ex-post facto, after the issue of these two orders as is evidenced by the notes produced at Annexure R1(b). The file notes in this connection were initiated on 22.08.2023 with approval being given by the Administrator only in August/September 2023. Clearly it is only after this O.A was filed that the respondents realized that steps had been taken without proper approval. It is the case that such ex-post facto approval for issue of the Memorandum of Charges and for appointment of Inquiry officer and Presenting Officer is 26 illegal as it shows no proper application of mind by the Disciplinary Authority, before the order was issued. Hence, it suffers from the vice of legal malice and is ab initio, malafide.
22. After due consideration, we are of the opinion that there was definitely a major procedural irregularity committed by the respondents in this regard. This is evidenced in the file notes produced at Annexure R1(c) by M.A No.891/2023, which is a copy of the file note in relation to the approval for suspension and the initiation of disciplinary proceedings. It is clear from the initial note put up on 24.03.2022 that the Office had recommended both the suspension and the initiation of disciplinary action with the prior approval of the Administrator. It was also pointed out in that note that the officer concerned is Group B. However by the time the note reached the Administrator, the concerned Advisor in his note dated 31.03.2022 seems to have (at paragraphs 15 & 16) only asked for the approval of the Administrator for placing the applicant under suspension immediately. This is clear at paragraphs 15 & 16 of the note which only can be taken to have been approved by the Administrator, in the notes at Annexure R1(b).
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23. It can be suggested that the above was an unintentional oversight, as the file had been moving for approval of the Administrator for not only placing the applicant under suspension under Rule 10 of the CCS (CCA) Rules, but also for initiating disciplinary proceedings under Rule 14 of the CCS (CCA) Rules. It can be contented that the notes reveal that the file had moved for this purpose and that to read the file in such a limited manner as giving approval only for the suspension and not for the regular department action consequent to the last note put up by the Advisor to the Administrator at paragraphs 15 & 16 of Annexure R1(b) would be to take a somewhat 'technical view' of the proceedings. However, it is also an established fact that approval was not taken where it was legally required. In fact, the Charge Memorandum at Annexure A1 was even signed by the Advisor showing no approval by the Administrator, but as being approved only at the level of the Advisor. Hence, we cannot accept that the Charge Memorandum has been properly issued as it has not been approved by the competent or appropriate authority to initiate disciplinary proceedings in the case of the applicant. Nor has the Inquiry Officer been appointed by the appropriate/competent authority vide Annexure A7. Hence to this extent, we are in agreement with the contention of the applicant that the Annexure A1 Memorandum of Charge and Annexure A9 order need to 28 be quashed, and that the 2 nd respondent is incompetent to initiate disciplinary proceedings or appoint Inquiry Officer. Thus, the relief sought in the O.A at Paragraph 8 (1) & (2) are allowed.
24. However, in relation to Annexure A6 order of the CVC, we are unable to accept that the spirit of this order at Annexure A6 cannot be extended to the case of the applicant. The subject of this order is action against public servant serving as witnesses but turning hostile in trap and other cases of the CBI. Though the applicant made a great effort to say that 'the other cases' does not include matters such as statements being under Section 161 of CrPC we cannot accept this fully. We only find that the issue of the Memorandum of Charges at Annexure A1 as well as the appointment of Inquiry Officer vide Annexure A9 was not correct as it was not done properly. However, on the rest of the reliefs sought we are not making any further directions, especially in relation to the reliefs sought at Paragraph 8 (3) & 8 (4). In this connection, the learned SPC for the the respondents has also brought to our notice the judgment of the Hon'ble Supreme Court in Sunny Abraham vs Union of India (UoI) and Ors decided on 17.12.2021 (MANU/SC/128/2021), wherein, the Hon'ble Supreme Court had not interfered with the orders of the Tribunal therein. 29 The Tribunal had not allowed the quashing of the Charge Sheet on the ground that only ex-post facto approval was granted by the Finance Minister, even as the Charge Memorandum had been issued without his specific approval. However, the Tribunal had reserved liberty to the respondents to issue a fresh Memorandum of Charges under Rule 14 of the CCS (CCA) Rules as per rules laid down in the matter, if so advised. The Hon'ble Supreme Court did not interfere with that direction in paragraph 14 when it observed as follows:- ''We are conscious of the fact that the allegations against the Appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges Under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the department's power to pursue the matter has been reserved and not foreclosed.'' Going by this principle in this matter too we do not prevent the respondents from further moving for proceedings if so decided against the applicant keeping in view the rules, etc. applicable in his case.
25. Now we come to the matter in O.A No.181/186/2022. The only relief sought therein was to quash the suspension order dated 02.04.2022 against 30 the applicant, produced in that O.A at Annexure A1 (produced at Annexure A2 in O.A No,181/448/2022). It is clear that the passing of time and the fact that the applicant has since retired on 30.06.2022 makes the relief sought therein more or less infructuous. We cannot hold our finding in OA No.181/448/2022 against the respondents, who had placed the applicant under suspension, with the intention to draw departmental proceedings against him in their order dated 02.04.2022. The applicant having retired and having not worked during the period of suspension would only be entitled for the appropriate subsistence allowance for the period he was under suspension till his retirement. We have found the Annexure A1 order in O.A No.181/448/2022 illegal only because of issuance by a non- competent authority. However, we find the suspension was done legally. We cannot allow the relief in O.A No.181/186/2022 to regularize the period of suspension as duty with full salary and other benefits. We find that in the facts and circumstances that had obtained at that point of time, the suspension of the applicant cannot be termed as unjustified or arbitrary.
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26. The two O.As are disposed of with the directions as above. We make no order as to costs.
(Dated, 9th April, 2024)
K.V. EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
v
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List of Annexures in O.A No.186/2022
Annexure A1- True copy of the Order F.No.A-14/57/2022-COL dated
2.4.2022 issued on behalf of the 1st respondent.
Annexure A2- True copies of some of the appreciation letters received
by the applicant.
Annexure A3- True copy of the 161 Statement alleged to be given by
the applicant on 27.6.2009.
Annexure A4- True copy of the deposition of the applicant recorded by
the Court of Special Judge for CBI cases, Kavaratti in CC 1/2011 on 21.1.2019.
Annexure A5- True copy of the Show Cause Notice F.No.12/36/2019- Services/3330 dated 30.10.2019 issued by the 1 st respondent. Annexure A6- True copy of the Central Vigilance Commission Order No.73/12/2005 dated 15.12.2005.
Annexure A7- True copy of the representation dated 13.11.2019 submitted by the applicant to the 1st respondent.
Annexure A8- True copy of the Memo of Charges dated 23.06.2022. Annexure R1(a)- True copy of the CBI Statement.
Annexure R1(b)- True copy of the letter No.884/3/05(A)/09/CBI/ACB/Cochin dated 06.03.2019. Annexure R1(c)- True copy of the Office Order dated 15.12.2005. Annexure R1(d)- True copy of the Show Cause Notice dated 30.10.2019. Annexure R1(e)- True copy of the applicant was submitted explanation to the Show Cause Notice dated 13.11.2019.
Annexure R1(f)- True copy of the vide letter F.No.10/20/2011- SDO(KVT)-Part dated 02.02.2022.
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List of Annexures in O.A No.186/2022 Annexure A1- True copy of the Memorandum No.A-14/57/2022-COL dated 23.6.2022 issued by the 2nd respondent.
Annexure A2- True copy of the Order F.No.A-14/57/2022-COL dated 2.4.2022 issued on behalf of the 1st respondent.
Annexure A3- True copy of the 161 Statement alleged to be given by the applicant on 27.6.2009 No.RC 5(A)/2009-CBI/Cochin. Annexure A4- True copy of the deposition of the applicant recorded by the Court of Special Judge for CBI cases, Kavaratti in CC 1/2011 on 21.1.2019.
Annexure A5- True copy of the Show Cause Notice F.No.12/36/2019- Services/3330 dated 30.10.2019 issued by the 1 st respondent. Annexure A6- True copy of the Central Vigilance Commission Order No.73/12/2005 dated 15.12.2005.
Annexure A7- True copy of the representation dated 13.11.2019 submitted by the applicant to the 1st respondent.
Annexure A8- True copy of the Written Statement of Defence submitted by the applicant dt. 30.6.2022.
Annexure A9- True copy of the Order No.A-14/54/2022-COL/111 dated 22.7.2022 issued by the Additional District Magistrate. Annexure R1(a)- The true copy of the F.No.15036/2/2006-ANL dated 18.12.2009 issued by the Ministry of Home Affairs.
Annexure R1(b)- True copy of the file note with regard to the ex-post facto approval of memo of charge.
Annexure R1(c)- True copy of the file note with regard to the approval of suspension and initiation of disciplinary proceedings.
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