Central Administrative Tribunal - Delhi
Vijay Kumar Sharma vs Union Of India on 21 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1896/2012 Reserved on:21.03.2014 Pronounced on:21.05.2014 Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (J) Vijay Kumar Sharma S/o Late Shri Kishan Lal Sharma R/o 1/629, Mansarovar Park Shahadara, Delhi 110032. .Applicant Applicant in person. Vs. 1. Union of India Through the Controller General of Accounts M/o Finance, Deptt. of Expenditure 7th Floor, Lok Nayak Bhawan Khan Market, New Delhi 110003 2. Pr Chief Controller of Accounts O/o the Pr. CCA, CBDT, 9th Floor Lok Nayak Bhavan, Khan Market New Delhi 110003 3. Chief Controller of Accounts O/o the Pr. CCA, CBDT, 9thFloor Lok Nayak Bhavan, Khan Market New Delhi 110003 By Advocate: Shri V.S.R. Krishna. ORDER
Shri G. George Paracken, Member (J) The applicant in this Original Application is a retired official from the office of the Controller General of Accounts, Ministry of Finance, Department of Expenditure, Govt. of India. He has challenged the orders in the disciplinary proceedings initiated against him which culminated in the imposition of the minor penalty of reduction to a lower stage in the time-scale of pay by one stage for a period of two years upon him.
2. The brief facts of the case are that while the Applicant was working as AAO in the office of the Chief Controller of Accounts in the Ministry of Health and Family Welfare, the Chief Controller of Accounts, vide memorandum dated 13.12.2005, proposed to hold an inquiry against the applicant under Rule 14 of the CCS (CCA) Rules, 1965. The substance of imputations of misconduct or misbehaviour in respect of which the inquiry was proposed to be held were as under:-
Article I Sh. V.K. Sharma, AAO, IA Wing/IAP (Hqrs), Principal Accounts Office, Ministry of Health & Family Welfare, represented by his letter dated 8.9.2004 that he was suffering from ailments which was not allowing him to perform his duties in Internal Audit. He was directed to report for medical examination. He failed to comply with the Government instructions issued to him twice for undergoing Medical Examination at Dr. R.M.L. Hospital vide office order No. Pr. A.O./Admn./1/6(4)/2004-5/2819-20 dated 2.11.2004 and Pr. A.O./Admn./1/6(4)/2004-5/3506-08 dated 14.1.2005.
Article-II Sh. V.K. Sharma, AAO is willfully absenting from office unauthorisedly without prior approval/sanction of the Competent Authority for the following periods:-
12.1.05 to 2.3.05 10.03.05 onwards till date Article-III Sh. V.K. Sharma, AAO was deputed to carryout an important assignment of various DDOs under the Ministry to verify that funds utilized by them were as per Government prescribed instructions. However, Sh. V.K. Sharma, AAO, was willfully absenting from duties without caring the loss to Government.
Article-IV Shri V.K. Sharma, AAO approached directly to Cabinet Secretary, Chief Vigilance Commissioner, Secretary (Finance), CGA and to various other esteem authorities of the Government of India in violation of all Rules of Though Proper Channel and against general decorum of the office.
Article-V Shri V.K. Sharma, AAO made false derogatory, defamatory and malicious allegations against his superior officers including Principal Accounts Officer (Admn.) and Controller of Accounts, Ministry of Health and Family Welfare, without any corroborative evidence/records to tarnish their image and reputation.
Article-VI Shri V.K. Sharma, AAO has not submitted the requisite documentary proof of tax saving bonds purchased during the financial year 2004-5 despite his categorical assurance for the same resulting in non-settlement of his tax liability for the said year and put loss of revenue to the Government to the extent of Rs.15052/-.
3. On receipt of the aforesaid Memorandum, vide his letter dated 28.12.2005, the Applicant denied the aforesaid charges. However, as the Respondents have been proceeding with the enquiry, he challenged the aforesaid Memorandum before this Tribunal vide OA No. 600/2006. The said OA was disposed of, vide order dated 14.08.2006, directing the Applicant to appear before the Medical Board on 25.09.2006. However, later vide Annexure A-5 letter dated 14/15.10.2008 the Deputy Director of Accounts, CBDT (Head Quarter), informed the Chief Controller of Accounts, M/o Health and Family Welfare that the Respondent No.3, namely, the Chief Controller of Accounts (CBDT (Head quarter) decided to quash the aforesaid Memorandum in toto and thereby dropping the disciplinary proceedings initiated against the Applicant. The CCA, CBDT has also directed the Chief Controller of Accounts, M/o Health and Family Welfare to issue necessary orders for the regularization of the so called unauthorized absence of the Applicant as duty for all purposes. They have also called for the findings/report of the Inquiry Officer, the record relating to the direction to the Applicant to undergo medical examination which included his medical check up as they were of the opinion that the Applicant was of sound mind and he is a sincere and prudent officer. The said letter reads as under:-
OFFICE OF THE PRINCPAL CHIEF CONTROLLER OF ACCOUNTS CENTRAL BOARD OF DIRECT TAXES 9TH FLOOR, LOK NAYAK BHAWAN, KHAN MARKET NEW DELHI No.PCCA/CBDT/CDN-I/C.S/VKS/2008-09/1207 Dated:14/15.10.2008 To The Chief Controller of Accounts M/o Health & Family Welfare 145-A, Wing-A, First Floor Nirman Bhawan, New Delhi Subject: Disciplinary proceedings against Sh. V.K. Sharma, Asstt A.O.-regarding.
Respected Sir, I am to invite your kind attention to the judgment dated 14th August, 2006 of the Honble Central Administrative Tribunal (CAT) New Delhi pronounced in the OA No.600 of 2006. It is mentioned that in view of the aforesaid judgment and also on careful consideration as well as perusal of all articles of charges contained in Memorandum No.Pr. AO/Admn./1/6(4)/3141 dated 13rd December, 2005 which initiates Disciplinary proceedings against Sh. V.K. Sharma, AAO, under the Rule 14 of CCS(CCA) Rules, the Chief Controller of Accounts, CBDT, New Delhi who is present Competent Disciplinary Authority for Sh. V.K. Sharma, AAO, has decided to quash the aforesaid memorandum in toto and thereby dropping finally the disciplinary proceeding initiated by you office against him. However, the Disciplinary Authority has further desired as under:-
1. That in the compliance of the judgement dated 14th August, 2006 of the Honble Tribunal necessary order for the regularization of the so called unauthorized absent of Sh. V.K. Sharma as duty for all purposes may kindly be issued by your office because your office is the main respondent in the above reference OA.
2. That up to findings/Reports of the Inquiry officer appointed by you office vide letter no. Pr.O/ADMN./1/6(4)/2004-05/1667-72 dated 6th July, 2006 may please be forwarded to this office.
3. That it is on record that Sh. V.K. Sharma, AAO was being insisted upon to undergo such a Medical Examination which included his mental check-up. The details of prevailing need along with his leave application on Medical ground may please be furnished to this office. Because this office is of the opinion Sh. V.K. Sharma is sound mind person and is sincere and prudent officer.
This issued with the approval of the CCA, CBDT, New Delhi.
Copy to:
The Chief Controller of Accounts, CBDT, M/o Finance, D/o Revenue for information please.
Sh. V.K. Sharma, AAO, w.r.t. his representation dated 17.09.2008 under provisions contained in encloser 1 below Government of India order 26 below Rule 3 of CS Conduct Rule.
(C. Maheshwaran) Deputy Controller of Accounts CBDT (Head Quarter)
4. However, according to the Applicant, some of the subordinate officers of the Respondent No.3 threatened to revive the charge unless he pay a bribe of `25,000/-. As the Applicant did not give any such bribe, a notice dated 12.01.2010 was issued to him for preliminary hearing on 18.01.2010. Immediately on 16.01.2010, he informed the Enquiry Officer Shri Sandeep Saxena, Controller of Accounts that his appointment was unlawful and illegal as neither any disciplinary proceedings was pending against him nor he was appointed by the competent disciplinary authority viz CCA for initiating disciplinary proceedings against the group B officers of Central Civil Accounts Service. He has also pointed out that, vide OM dated 01.09.2009, Shri Dalip Kumar, CA has already been appointed in his case as the Inquiry Officer. He has also got a notice dated 05.02.2010 issued to the Respondents calling upon them to withdraw the unlawful disciplinary proceedings initiated against him. As the Respondents have been going ahead with the enquiry, on 28.02.2010 he approached this Tribunal vide OA 732/2010 but it was disposed of on 04.03.2010 without notice to the Respondents as the Applicant informed this Tribunal that he will co-operate in the enquiry. The said order reads as under:-
3. The Applicant is allowed to withdraw the Application and the Respondents are directed to ensure that inquiry is completed within three months and the disciplinary case within three months thereafter. However, if the prescribed time scheduled is not kept up, the Applicant is granted liberty to approach the Tribunal again. OA is dismissed as withdrawn.
5. Thereafter, the Inquiry Officer, vide his report dated 13.05.2010, held that the Articles of charge-I, II, III, IV and V have been sustained and Article of charge VI was not sustained. According to the said report, a notice for preliminary hearing was issued by the Enquiry Officer (Sandeep Saxena) on 12.01.2010 to the Applicant for the hearing to be held on 18.01.2010. On receipt of the said notice, the Applicant sent a letter dated 16.01.2010 mentioning therein that he did not admit Shri Sandeep Saxena as the Inquiry Officer. However, the Enquiry Officer, vide letter dated 25.01.2010 asked him to submit any additional information/facts. Applicant again informed the Inquiry officer through his advocates letter dated 05.02.2010 that the competent authority has already dropped the charge the new Disciplinary Authority has again forced the disciplinary proceedings against him. However, according to the Inquiry Officer, as the Applicant has not recognized the proceedings are valid, drawn his conclusion based on the case presented by the Presenting Officer, and the written statement of defence dated 28.12.2005 submitted by the Applicant in the original Disciplinary Authority i.e. Chief Controller of Accounts, M/o Health and Family Welfare. Thereafter, the Inquiry Officer made his assessment of the different article of charge and held that except Article VI all other charges have been sustained against the Applicant. The relevant part of the said report is as under:-
Assessment of Inquiry Officer Article of Charge I xxxx xxxx xxxx xxxx Assessment 3.4 The documents provided by the prosecution unambiguously show that the CO did not present himself for medical examination as required by his superior authority. COs own admission before the Honble Court that he had no intention of undergoing medical examination clearly establishes prosecutions contention that the CO deliberately avoided appearing before the medical board and thereby willfully disobeyed directions by his superior authorities. The article of charge I is sustained against the CO.
Article of Charge II Assessment 3.8 The charge is for two spells of absence 12.01.2005 to 02.03.2005 and 10.03.2005 till the date of the charge sheet. His absence from duty during the first spell is established from his own leave applications and the joining report given by him on 03.03.2005. The question is whether his absence was authorized or unauthorized. The records show that his leave was not sanctioned and that this was also communicated to him on 25.01.2005. The CO seems to have assumed that mere submission of application for leave was sufficient to regularize his absence.
3.9 The second spell is unusually long and this is the period when the CO alleged harassment by his superior authorities and also filed a case in the CAT, besides representing to several high authorities in the Government. He finally joined duty after the CAT order on 21.08.2006. The documents on record would suggest that he was not attending office during this period. His leave record show this entire period as unauthorized absence. He himself has mentioned in the endorsement to CCA M/o Health and Family Welfare of his representation dated 1.4.2005 to CVC that he had been absenting from duty since 10.3.2005. His contention is that he was either compelled or unable to attend for want of money, as his salary remained unpaid due to his concocted unauthorized absence. He also denies the allegation that he sent an empty envelop to his office on 22.03.2005 and maintains that the envelop contained his leave application. This contention does not seem to be consistent with the grounds mentioned by him earlier on his leave application i.e. mother and mother-in-law suffering from hypertension. Even the application for extension of leave (dated 1.2.2005) is on his domestic situation not being normal. The contention that the office compelled him to remain absent by not paying him is salary also do not seem justified as salary is payable only for duty and/or authorized absences.
3.10 To sum up, while the first spell of absence of the CO is covered by his leave applications, albeit not sanctioned, there are no applications on record to cover the second spell of his absence. The rules are clear that the leave cannot be claimed as of right. That his leave had not been sanctioned was also communicated to him on both the occasions. The article of chare II is, thus, sustained against the CO.
Article of Charge III xxxx xxxx xxxx xxxx Assessment 3.14 As per the document provided by the prosecution the CO was assigned internal audit duty from 29.11.04 onwards till 13.9.05. The report shows that he attended to the assigned work only between 29.11.04 and 17.12.04. Afterwards, the report shows that he had not attended any of the subsequent audit programmes and had remained absent from the headquarters in between audit programmes.
3.15 The CO in his letter of defense has not provided any evidence suggesting that he attended any of the prorammes mentioned by the prosecution. Moreover, it follows from the conclusion drawn in respect of Article II that the CO remained absent from duty and, therefore, there was no question of his attending to the work assigned to him during this period. There is nothing in the available records to conclusively prove the loss to Government due to the absence of the CO. The article of charge III is sustained against the CO to the extent mentioned in this paragraph.
Article of Charge IV & V xxxx xxxx xxxx xxxx Assessment 3.19 The perusal of the representations made by the CO to various authorities in Government, as per the documents listed in the charge sheet, would show that these are essentially in the nature of complaints against his superior officers, including allegations of his harassment. It is but natural for him not to route his complaints through the official channels involving the same officers he was complaining against.
3.20 However, it must be noted from the available documents that the CO has made complaints of harassment and leveled charges of corruption against every single officer dealing with his case, including his Chief Controller of Accounts, Controller of Accounts, and Senior Accounts Officer in the Ministry of Health and Family Welfare, his present Controller of Accounts and Senior Accounts Officer in the CBDT, and the previous as well as the present Inquiry Officer. The records show that he had even filed a civil suit against CCA, Ministry of Health and Family Welfare, which was set aside by the Court. It is clearly beyond the scope of this inquire to go into the merits of the charges leveled by him. However, it must be said that it would be too much of a coincidence if all these officials working in different offices at different points in time were to collude against him and were also indulging in corrupt practices. This inquire can only conclude that the available records do point to malicious intent on his part to tarnish the image of his superior officers. The article of charge IV & V is sustained against the CO to the extent mentioned in this paragraph.
Article of Charge VI xxxx xxxx xxxx xxxx Assessment 3.24 The details of income and savings submitted by the CO in his income tax statement show that he had claimed a rebate under section 88 of the Income Tax Act on account of proposed investments of Rs.30,000/- in infrastructure bonds. He had also recorded an undertaking on the body of the statement that he would produce the documentary proof of purchase by the close of the financial year. As per this statement, his remaining tax liability for the year worked out to Rs.14,832/-, which was to be deducted from his salary payable in the months of January and February, 2005. As the CO remained absent thereafter and wasnt paid salary for this period, his tax liability remained unsettled. His tax liability for the year was recalculated to Rs.15,052/- after disallowing the rebate claimed for investments in infrastructure bonds and taking into account non-payment of salary for the months of January and February, 2005.
3.25 The available records show that no tax was deducted from his salary paid till November 2004. The contention of the CO is correct to the extent that it was the responsibility of the DDO to have deducted the tax dues on pro-rata basis every month. Had it been done the quantum of the unsettled liability would have been much less. Further, the liability remained unsettled due to extraordinary situation leading to non-payment of salary for January and February 2005 to the CO. But for this, the DDO would have been expected to recover the remaining tax (with or without the claimed rebate) for the salary payable in the last two months of the year 2004-05 and therefore, it would be unfair to hold the CO responsible for DDOs inability to deduct his tax dues. Moreover, it cannot be ascertained from the available documents if the liability actually remained unsettled and resulted in loss of revenue to the Government. Under the circumstances prevailing at that time, the onus of settling his tax liability was with the CO, which he claims to have done, although not supported with any documentary evidence. Assuming his claim to be true, the CO can at best be held responsible for not providing the evidence of settlement of his tax liability. The article of charge VI does not sustain against the CO. A copy of the aforesaid report was furnished to him, vide respondents letter dated 21.05.2010, to enable him to submit the representation, if any, against the same. He accordingly, submitted a representation on 01.06.2010 pointing out the various lacuna in the report. He has also submitted that the Inquiry Officer was in possession of the aforesaid order of the Tribunal dated 04-03-2010 as the copy of the OA No. 732 of 2010 along with the said order was sent to him by the Tribunal. But the Inquiry Officer suppressed that material fact in his Inquiry report and did not sent any intimation of his ex-parte inquiry to the Applicant. He has also stated that the observation of the Inquiry Officer was false as it has been expressly mentioned in the Tribunals order dated 04.03.2010 that the applicant was ready to undergo the proceeding and he was ready to extent his full cooperation to the Inquiry Officer and that was the reason that he had withdrawn the OA. Despite that, the Inquiry Officer did not call him for any hearing in gross contempt of this Tribunals direction. In fact, the Inquiry Officer was in a hurry to rush the proceeding ex-parte on account of his personal bias and also at the instance of Sh. Sushil Pal, CA (CBDT). Further, the Applicant has stated that the instant ex-parte inquiry report is in gross transgression of the Government of Indias Instruction No. 7 Below Rule 14(23) of CCS(CCA) Rules, 1965 which lays down the procedure for holding ex-parte. It says that Notices of all hearing should be served upon the accused or communicated to him unless the first Notice says that the Inquiry will continue from day to day. However, out of personal bias, the Inquiry Officer did not bother to issue any notices after the notice for the Preliminary Hearing held on 18.01.2010 was issued. The Inquiry Officer has, thereby deprived of his right to take his defense purposively. Further, in the ex-parte Proceedings, the entire gamut of the Inquiry should be gone through. However, in para 1.8 which is the introductory para of the Inquiry report itself, it has been recorded that the Inquiry Officer did not follow any such proceedings. Again, in the ex-parte proceedings, the Inquiry officer has to examine the records and witnesses to enable him to come to a valid conclusion as to the culpability of the charged officer based on the evidences led before him. But as per his own admission, the Inquiry officer has not called for the witness as per list of witness upon whom statements charges against the Applicant were to be sustained. The Inquiry officer violated the aforesaid settled law position. The Inquiry Officer rushed the proceedings ex-parte by side lining the statutory rules position and the material evidences and material witness of the Applicant. Thus, the Inquiry Officer has concluded the proceeding without the statement of the prosecution witness and without defense witnesses and also of without sending any notice either to the prosecution witnesses or to the Applicant or his witnesses for any hearing. Further, in an ex parte proceeding, if the charged Officer remains absent himself at one stage, it does not take away his right to attend the Inquiry at any other subsequent stage. In this case Applicant did not appear in the Preliminary hearing held on 18.01.2010 and represented before the Inquiry officer the proceedings to be unlawful/Illegal. However, the Inquiry Officer was duty bound to call the Applicant for the subsequent stages of the proceedings particularly when he was fully prepared to undergo the proceedings and to co-operate with the Inquiry officer in view of the Tribunals Order dated 04-03-2010 in the OA No. 732 of 2010 (supra). But, the Inquiry Officer himself admitted in his report that the Applicant made complaint against him and also against Sh. Sushil Pal whereas making such assessment was neither within the scope of the inquiry nor there is any article of charge to that extent. The Applicant has also submitted that according to the Government of India Instruction No. 17 Below Rule 14(23) of CCS(CCA) Rules-1965 which states that whenever an application is moved by a Government servant against whom disciplinary proceedings are initiated under CCS(CCA) Rules, against the Inquiry Officer on the ground of the bias, the proceedings should be stayed and the application referred along with the relevant material, to the appropriate reviewing authority for considering the application and passing the appropriate order thereon. However, in the instant case, despite the Inquiry Officers own admission in the para 3.20 of the Inquiry Report about the compliant against him by the Applicant, the Inquiry Officer did not stop the proceedings and also did not wait for the mandatory order of the Pr. Chief Controller of accounts(CBDT) who was reviewing the authority. Conversely, the inquiry Officer continued the proceedings ex-parte in connivance with Sh. Sushil Pal. The Inquiry Officer has also not taken into consideration that the Memo dated 13-12-2005 initiating the proceedings has already been quashed in toto by Smt. Bharti Dass, the former CCA(CBDT) who was a equally competent disciplinary authority like the present disciplinary authority. That the Applicant asserts that there is no provision in the CCS(CCA) Rules that the successor disciplinary authority at his sweet will resume or reopen such disciplinary cases. The Inquiry officer has also wrongfully mentioned in the Para No. 1.19 of the Introduction that the Applicant had furnished his written statement for defense for the Articles of the charges on 28.12.2005. The said written statement only transpires that the Applicant had raised objections before the Authorities that when OA No. 1719 of 2005 was pending adjudication before the Tribunal then there was no justification for the Authorities of M/o H&FW to issue the charge sheet. The Applicant had, therefore, every right to file his defense statement when the proceedings were resumed as per direction of the Tribunal dated 04-03-2010 in OA No. 732 of 2010.
6. However, the Disciplinary Authority, vide its order dated 23.07.2010, imposed a minor penalty of reduction to a lower stage in the time scale of pay by one stage for a period of two years. In the said order, the Disciplinary Authority has stated that there was no doubt in the contention of the applicant that the ex-parte inquiry is to be conducted as per laid down procedure. But the Inquiry Officer has prepared his report on the basis of the documentary evidences only. It was also observed that no witnesses have been examined further, no written brief of Presenting Officer was obtained and no notices were issued by the Inquiry Officer. However, according to the Disciplinary Authority, it was the duty of the applicant to inform the Inquiry Officer that he would participate in the inquiry. The Disciplinary Authority issued a further order in continuation to the earlier order dated 23.07.2010 ordering that the following period of unauthorized absence of the applicant during the year 2005-2006, will be treated as dies non for all purpose i.e. leave, increment, pension etc:-
12.01.2005 to 02.03.2005 10.03.2005 to 20.08.2006
7. The applicant filed an appeal dated 02.09.2010 before the Appellate Authority against the orders of the Disciplinary Authority dated 23.07.2010 and 30.07.2010. As the Appellate Authority did not take any action on the said appeal, the applicant filed OA No.3097/2011 before this Tribunal and this Tribunal vide its order dated 29.08.2011, directed the respondents to decide the appeal and to pass a speaking and reasoned order. Pursuant to the aforesaid directions the Appellate Authority passed the impugned order dated 02.11.2011 dismissing the appeal of the applicant. The relevant part of the said order reads as under:-
1. Your representation dated 01.06.2010 has duly been taken up and therefore, the Orders dated 23.07.2010 and 30.07.2010 passed by Sh. M. Sridharan, Jt. CGA are well in order and conform to statutory rule position.
2. As per part II Sl. No.33 of Schedule of CCA (CCS) Rules, in respect of CCS Gr. B the Authority competent to impose penalties which it may impose with reference to Rule 11 is CCA or Jt. CGA in a Ministry or Department where there is no CCA.
Now, when the Orders dated 23.07.2010 and 30.07.2010 in respect of Sh. V.K. Sharma, AAO were passed then the post of CCA in O/o PCCA, CBDT was lying vacant and therefore another competent authority in terms of rules has considered the matter and passed orders. Accordingly there is no violation of rules as alleged in the appeal.
3. The Disciplinary Authorities are indicated by the statutory rules i.e. Part II Sl. No.33 of Schedule of CCS (CCA) Rules. It is not upto the delinquent employee to state his preference in the matter. The records indicate that you had even refused to recognize, admit or accept the duly appointed Inquiry Officer.
4. The Orders passed are the quasi-judicial nature and the decision has been made by Jt. CGA (authority competent to impose penalties) as per rules. At that time there was only one Disciplinary Authority.
5. The communication dated 15.10.2008 was an inter departmental communication seeking clarification. Hence, the disciplinary proceedings were not dropped against you. In fact the matter stands settled by the decision of the Honble Tribunal in OA no. 732/2010 dated 04.03.2010 filed by you, wherein the Honble Tribunal had accepted the conduction of inquiry and directed to complete it within three (03) months.
Order 9 below Rule 15 of CCA CCS) Rules only relates to disposing of the disciplinary proceedings as early as possible within the stipulated time limit.
6. You are partially quoting the Order dated 23.07.2010 of Disciplinary Authority. Full para 6(C) of Order dated 23.07.2010 of the Disciplinary Authority also reads as On going through the records it is clear that the Inquiry Officer has prepared his report on the basis of documentary evidences only but in the concluding lines of the same para of Order dated 23.07.2010 this has also been very categorically mentioned that on receipt of Order dated 04.03.2010 passed by Honble CAT, it was the duty of Sh. V.K. Sharma, AAO to inform Inquiry Officer that he would participate in the inquiry.
Further, Honble Tribunal, Principal Bench, New Delhis Order dated 04.03.2010 states that In spite of cooperation with the Inquiry Officer, if the inquiry is not finalized in a specified time frame, the applicant would be granted liberty to challenge the same dilatory action of the respondents. It may also be mentioned that the said Orders of Honble Tribunal were not received in the office of respondents and respondent came to know about the said Orders only through the representation dated 01.06.2010 from Sh. V.K. Sharma, AAO which he submitted as a reply to the Inquiry Report.
In view of the penalties under Rule 11 of CCS (CCA) Rules, 1965 and DoPTs O.M. dated 28.10.1985 it is stated that holding of an enquiry for minor penalties is the discretion of the Disciplinary Authority. However, the inquiry was conducted and Charged Officer was given opportunity to adduce his defence, but he refused to recognize the Inquiry Officer and also did not co-operate with the Inquiry Officer in the finalization of the proceedings. In view of the stand of Shri V.K. Sharma, there was no other alternative but to complete the disciplinary proceedings in terms of the Honble Tribunals order dated 4.3.10.
7. Inquiry officer had examined the written statement of defense submitted by charged officer vide letter dated 28.12.2005. Further, the Inquiry Officer has granted two more opportunities to you vide his letter dated 12.01.2010 and 25.01.2010 to either appear before him in person or produce any evidences but you failed to cooperate with the inquiry by stating that you refuse to accept the Inquiry Officer. Under such circumstances there was no other alternative but to proceed with the inquiry.
8. While going through the records it is very clear that the Inquiry Report has been prepared on the basis of documentary evidences. The same has been considered in Order dated 23.07.2010 of the Disciplinary Authority.
9. The Order dated 04.03.2010 by Honble Tribunal, Principal Bench, New Delhi has directed that the enquiry be completed within three months from the date of its issue and disciplinary case within three months thereafter.
10. The Order dated 04.03.2010 by the Honble Tribunal New Delhi was received by respondents only with representation dated 01.06.2010 by Sh. V.K. Sharma, AAO and by that time the Inquiry Report had been submitted by the Inquiry Officer. After that following Honble Tribunal directions the disciplinary case has been finalized within stipulated time frame. Clearly, there is no disobedience of Honble CATs Order dated 04.03.2010.
In view of the above, no material fact has been brought to the notice to Appellate Authority by Sh. V.K. Sharma, AAO (now retired) which could justify his appeal for quashing the Orders dated 23.07.2010 and 30.07.2010 issued by the Disciplinary Authority. The appellate authority finds that the inquiry has been conducted as per rules and regulations and that the charged officer has been given all opportunities to state his defense. Thus taking into consideration the records of the inquiry, there is no justification to interfere with the orders dated 23.07.2010 and 30.07.2010 of the disciplinary authority.
The Appellate Authority, therefore, upholds the Orders dated 23.07.2010 and 30.07.2010 issued by the disciplinary Authority.
8. The applicant has challenged these impugned orders in this OA seeking the following reliefs:-
1. To quash and set aside the impugned Penalty orders dated 23.07.2010 (Annexure A-1) dated 30.07.2010 (Annexure A-2) and 02.11.2011 (Annexure A-3).
2. To direct the Respondents to restore the stage of pay of the Applicant which was prevailing at the time of his voluntary retirement.
3. To direct the Respondents to pay all the pay and allowances for the forced unauthorized absent period mentioned in penalty order dated 30.07.2010.
9. The respondents have filed their reply wherein they have stated that the applicant has failed to point out any valid ground in support of his aforesaid reliefs. They have contended that the inquiry was conducted in accordance with the principles of natural justice. They have also stated that there is no truth in the allegation of the applicant that the inquiry was conducted behind his back. According to them in spite of several notices, the applicant chose not to participate in the inquiry for the reasons best known to him. Therefore, the inquiry was held ex-pate.
10. We have heard the applicant, appearing in person and the learned counsel for the respondents Shri V.S.R. Krishna. Basically, the charge against the Applicant is that he was on willful and unauthorized absence from duty from 12.01.2005 to 02.03.2005 and from 10.03.2005 to 20.08.2006. Further, he failed to comply with the instructions given to him to undergo Medical examination at R.M.L. Hospital. The other allegation that the Applicant has approached the higher authorities directly ignoring the rule of through proper channel. Yet another charge was that the Applicant has made false derogatory, defamatory and malicious allegations against his superior officers. The aforesaid charge was issued to him by the Chief Controller of Accounts, M/o Health and Family Welfare on 13.12.2005. The Applicant has challenged the aforesaid charge before this Tribunal vide OA 600/2005. Even though this Tribunal did not quash and set aside the aforesaid charge, the undisputed fact is that his disciplinary authority i.e. the Chief Controller of Accounts, CBDT, New Delhi under whom he was later working, vide his letter dated 15.10.2008, quashed the aforesaid memorandum in toto and dropped all the charges. The said Disciplinary Authority has also directed the Chief Controller of Accounts, M/o Health and Family Welfare to regularize the so called unauthorized absence of the Applicant. The said Disciplinary Authority was also of the view that the Applicant was of sound mind, sincere and prudent. The aforesaid decision/direction of the Disciplinary Authority was absolutely unambiguous and, therefore, the disciplinary inquiry initiated against the Applicant vide Memorandum dated 13.12.2005 stood dropped on 15.10.2008. A copy of the aforesaid direction of the Disciplinary Authority was also communicated to the Applicant. Therefore, there was no reason for the Applicant to believe that the aforesaid Article of Charges were still pending against him. Moreover, after, the Respondents themselves did not take any action in the matter for one year and three months i.e. from 15.10.2008 to 12.01.2010. But suddenly on 12.01.2010, the Joint Controller General of Accounts, CBDT, the new Disciplinary Authority has decided to hold the enquiry against the Applicant on the charges which have already been dropped on 15.10.2008 and appointed Shri Dilip Kumar, Controller of Accounts as the Enquiry Officer. He declined to serve as the Inquiry Officer in the case. Therefore, another Controller of Accounts Shri Sandeep Saxena was appointed as the Enquiry Officer. The Applicant, vide his letter dated 16.01.2010 informed Shri Sandeep Saxena that the resumption of enquiry is unlawful and illegal as the purpose behind it was extraneous. The Applicant submitted that when the disciplinary case against him has already been closed and the charges have been dropped, there was no question of any resumption of the proceedings on the same charges. The Disciplinary Authority arbitrarily did not consider the aforesaid submission of the Applicant and went ahead with the enquiry. The only explanation forthcoming much later from the Appellate Authority is that the aforesaid order dated 15.10.2008 dropping the charges was only an inter-departmental note. But the said contention is absolutely wrong as stated earlier as the copy of the said letter was endorsed to the Applicant and the Disciplinary Authority itself did not proceed further against him for over one year. Therefore, reason for reviving the Articles of Charge issued to the Applicant is nothing but extraneous.
11. The Applicant then approached this Tribunal vide OA No.732/2010 and argued his case in person. Unfortunately, a coordinate Bench of this Tribunal without going into the aforesaid aspect of the case, dismissed the OA as withdrawn at the admission stage itself vide order dated 04.03.2010. Further, this Tribunal directed the Respondents to complete the enquiry within three month. But, the Inquiry Officer did not give any notice to the Applicant with regard to the next date of the proceedings before him and proceeded against him stating that the enquiry was being conducted under extraordinary circumstances where the charged officer has refused to recognize the proceedings as valid, in spite of the fact that the Applicant has already assured this Tribunal that he will cooperate in the Enquiry. The Inquiry Officer thereafter, held that the objection raised by the Applicant way back on 28.12.2005 in the previous enquiry as his defence statement and considered the documents provided by the Presenting Officer. He has also not bothered to examine a single witness. Finally, he submitted his report on 13.05.2010 holding that except charge VI all other charges have been proved. It is seen that the Inquiry Officer was totally biased and whimsical in his attitude. As a result, he did not bother to follow rules and instructions regarding holding ex-parte inquiry. Rule 14(20) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, provides for holding ex-parte enquiry. The said Rule reads as under :
(20) If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.
12. Under the said rules, the Director General, P&T have issued instruction as to how ex-parte enquiry has to be held.
Those instructions have been incorporated as Rules 63 and 64 in P&T Manual Volume-III. The said instructions are as under:-
63. Whenever an official continues to remain absent from duty, overstays leave without permission and his movements are not known or he fails to reply to official communications, the disciplinary authority may initiate action under Rule 14 of the CCS (CCA) Rules, 1965. In all such cases, the competent authority should, by a registered A.D. letter addressed to the official at his last known address, issue a charge-sheet in the form prescribed for the purpose and call upon the official to submit a written statement of defence within a reasonable period to be specified by that authority. If the letter is received undelivered or if the letter having been delivered, the official does not submit a written statement of defence on or before the specified date or at a subsequent stage does not appear in person before the Enquiry Officer, or otherwise fails or refuses to comply with the provisions of CCS (CCA) Rules, the enquiring authority may hold an ex parte enquiry. The notices of all hearings should be served on the accused or communicated to him unless the first notice says that the enquiry will continue from day to day. In ex parte proceedings, the entire gamut of the enquiry has to be gone through. The notices to witnesses should be sent, the documentary evidences should be produced and marked, the Presenting Officer should examine the prosecution witnesses and the enquiring authority may put such questions to the witnesses as it think to be fit. The enquiring authority should record the reasons why he is proceeding ex parte and what steps he had taken to ask the accused official to take part in the enquiry and avail of all the opportunities available under the provisions of Rule 14 of the CCS (CCA) Rules. In such a case, the details of what has transpired in his absence, including depositions, should be furnished to the accused officer. During the course of enquiry, the accused is free to put in appearance and participate in the enquiry. If the accused appears in the enquiry when some business has already been transacted, it is not necessary to transact the same business again unless the accused official is able to give justification to the satisfaction of the Enquiry Officer for not participating in the enquiry earlier. The competent authority may, thereafter, proceed to pass the final orders dismissing or removing the official from service after following the prescribed procedure.
64. The procedure outlined above can be observed in the case of a Government servant whether permanent or temporary remaining absent without authority etc. Such a government servant should not be placed under suspension but when an official who is under suspension disappears and cannot be contacted at his last known address, the suspension orders should be lifted and the proceedings in the manner stated above initiated for his removal in absentia.
13. Rule 9(23) of the Railway Servants (Discipline and Appeal) Rules, 1968 also contain identical provisions which reads as under:-
(23) If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.
14. Under the said rules also, the Respondent-Railways have issued instructions as to how ex-parte enquiry has to be held vide Railway Board Circular No.E (D&A) 69 RG/6-20 dated 18.06.1989. The relevant part of those instructions are as under:-
Thus the essential ingredients of an ex-parte enquiry are:
(a) The articles of charges must be delivered to the delinquent,
(b) He should either -
(i) not submit his defence, or
(ii) otherwise fail or refuse to comply with the provision of Rule 9.
Thus when a charge memorandum was sent per Registered Post but came back undelivered and was later not pasted at the working place, the memorandum was taken as not served, and ex-parte was not justified.
How to hold ex-parte inquiry- For holding an ex-parte inquiry the articles of charges must be properly served on the Railway employee either in person, or as per registered post, or by pasting at the working place, as the case may be. If the employee does not give the defence despite being served with the memorandum of charges; or after having given the defence, does not turn up, or having turned up, does not sit in the inquiry then the ex-parte inquiry can be held. An ex-parte enquiry demands all the formalities of the normal enquiry e.g. (a) the inquiry officer must be appointed unless the disciplinary authority may decide to inquire himself; (b) he must fix the date and place of inquiry; (c ) he must hold the inquiry and call all the witnesses and documents as cited in the memorandum of charges; (d) get the documents duly proved and record the evidence of witnesses so as to prove the charge; (e) where the delinquent had not turned up in the inquiry and adjournment has been given with a view to hold ex-parte inquiry, if he does not turn up on the next occasion, then notice of intention to hold ex-pare enquiry should be given; (f) findings of inquiry must be duly drawn.
Ex-parte procedure-Ex-parte proceedings does not mean that all the witnesses should be recorded strictly as per Evidence Act. This proceeding means that Inquiry Officer can be proceeded on the basis of the material available to him in absence of delinquent. If at any stage the Inquiry Officer comes to the conclusion that further enquiry is necessary, it is open to him to do so. But his discretion cannot be fettered by the Evidence Act, Article 311(2) principles cannot be interpreted to reduce the principles of natural justice to a ratio ad absurdum. If the delinquent waves his right of hearing, he has to blame himself. He cannot be allowed, after the completion of enquiry, to turn round and say that the principles of natural justice have been infringed since no oral inquiry was held. He cannot be allowed to play fast and loose with the Inquiry Officer.
Where he did not appear in inquiry which was decided without getting his written brief, no fault can be found on this count. The question of filing a written brief in such a case does not arise and there is no need to ask the delinquent to file a written brief.
15. The Disciplinary Authority was also very whimsical and arbitrary in his approach. Even though he himself was of the view that the inquiry was held not in accordance with the prescribed procedure, he accepted the aforesaid report of the Enquiry Officer. The observation of Disciplinary Authority was as under:-
(c) There is no doubt in the contention of the Sh. V.K. Sharma that the ex-parte inquiry is to be conducted as per laid down procedure. On going through the records of inquiry it is noticed that I.O. has prepared his report on the basis of documentary evidences only. No witnesses have been examined. Further, no written brief of P.O. was obtained and no notices were issued by I.O. From the above admission by the Disciplinary Authority, it is quite clear that the report of the Enquiry Officer was perverse and he conducted the enquiry in violation of the provisions of Sub-Rules (14), (16) and (17) of Rule 14 of the CCS (CCA) Rules, 1965, which are as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
xxxx xxxx xxxx (16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
16. The Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 has held that mere tendering of documents is not sufficient but they have to be proved in the inquiry. The relevant part of the said judgment reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
17. The Appellate Authority has also not been fair in its consideration of the Appeal. It took a factually incorrect and arbitrary view that the letter dated 15.10.2008 dropping the charge against the Applicant was an inter departmental communication seeking clarification where was the said communication was an unambiguous order trapping the charge in toto and copy of the same was also endorsed to the Applicant. Where the disciplinary authority has already dropped the charge, after lapse of more than one year the new incumbent Disciplinary Authority cannot resume the enquiry. The Appellate Authority has also failed to appreciate that in spite of the Disciplinary Authoritys own admission that the Enquiry Officer has not conducted the enquiry in accordance with the rules, it rejected the Applicants appeal and upheld the Disciplinary Authoritys order.
18. In the above facts and circumstances of the case, we find merit in the contentions of the applicant. We, therefore, allow this OA and quash and set aside the impugned Inquiry Officers report dated 13.05.2010, Disciplinary Authoritys orders dated 23.07.2010 and 30.07.2010 and Appellate Authoritys order dated 02.11.2011. Accordingly, we direct the respondents to restore the pay of the applicant reduced at the time of his retirement. Further, we direct the Respondents to release the withheld increments of the Applicant during the period of reduction. Further, as already ordered by the Disciplinary Authority in its earlier order dated 15.10.2008, the absence of the Applicant for the period from 12.01.2005 to 02.03.2005 and 10.03.2005 to 20.08.2006 shall be regularized by granting the leave of the kind due including Extra Ordinary Leave with or without pay as the case may be. As the Applicant has already retired from service, his terminal benefits shall also be revised accordingly and up-to-date arrears of pay and allowances and terminal benefits shall be paid with interest at GPF rate. The aforesaid directions shall be complied with within a period of two months form the date of receipt of a copy of this order. In the facts and circumstances of the case, the Respondents shall also pay cost of Rs.10,000/- (Rupees Ten Thousand) as cost of litigation to the Applicant within the aforesaid period.
( Shekhar Agarwal) ( G. George Paracken )
Member(A) Member (J)
/vb/