Central Administrative Tribunal - Delhi
Shri D.S. Thakur vs Union Of India on 21 February, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.2998/2010 MA No.2330/2010 Reserved on : 20.01.2012 Pronounced on : 21.02.2012 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri D.S. Thakur, Aged 63 years, S/o Late Shri Maharaj Singh Thakur, R/o K-102, Sarita Vihar, New Delhi-110076.
Applicant (By Advocate : Shri M.K.Bhardwaj) Versus
1. Union of India, Through The Secretary, Ministry of Finance, Department of Expenditure, Govt. of India, New Delhi.
2. The Comptroller and Auditor General of India, 9 Deen Dayal Upadhyay Marg, New Selhi-110124.
3. The Principal Accountant General (A&E)-I, Lekha Bhawan, Jhansi Road, Gwalior-474002.
Now Accountant General (A&E)-I, Lekha Bhawan, Jhansi Road, Gwalior-474002 (M.P.).
Respondents.
(By Advocate : Shri J.P. Saxena) : ORDER :
Dr. Ramesh Chandra Panda, Member (A) Shri D.S. Thakur, the applicant herein, was issued the Presidential Order dated 12.05.2010 (Annexure-A1) by imposing the penalty of withholding of 10% of monthly pension for a period of three years. Feeling aggrieved by the above order, the applicant is before the Tribunal in the present OA praying for the following relief (s):
i) To quash and set aside the impugned charge memo dated 03.09.1998 and the subsequent proceedings as well as the punishment order dated 12.05.2010.
ii) To direct the respondents to restore the pension of the petitioner and release all the consequential benefits including arrears of pay.
iii) To direct the respondents to give 18% interest on the belated payment of retirement dues i.e. gratuity, and communication etc.
iv) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicants.
2. Brief facts of the case would disclose that while working as Sr. Accounts Officer in the office of the Accountant General (Accounts and Entitlement)-II, MP at Gwalior, he is alleged to have committed a grave misconduct in the sense that he in a pre-planned manner along with some employees and outsiders held meeting/demonstration and delivered provocative speech on 6th, 10th and 12th March, 1997 and forcibly confined the Accountant General (AG in short) by surrounding his chamber within the office premises in wrongful manner during and beyond the office hours. He also incited the employees to remain absent enmasse and forcibly entered the chambers of the Accountant General on 6th March, 1997 and physically assaulted the Accountant General and damaged Government property like telephone and furnitures in the chamber. He, thereafter incited the staff and undertook the gherao of Accountant General and wrongfully prevented him from going out of his chamber right upto 8.30 p.m. and the AG could come out of chamber only with the protection of local police. As the alleged misconduct of the applicant was prejudicial to the public order which amounted to serious offence like wrongful restraint, criminal trespass and inciting his own colleagues and as he subverted the discipline which amounts to grave misconduct, accordingly, the disciplinary action was initiated against him and charge sheet vide Memorandum dated 03.09.1998 was served upon the applicant. The English version of the details of the charges of misconduct framed against him reads as follows :-
Articlewise details of the charges of misconduct framed against Sh. D.S. Thakur, Senior Accounts Officer for committing misconduct in the office of the Accountant General (Accounts & Entitlement)-I, Madhya Pradesh, Gwalior.
ARTICLE-I That the above mentioned Sh. D.S. Thakur, Senior Accounts Officer has done an act of misconduct that on 06.03.97, he took some other persons with him inside the office and gathered the employees and brought some persons from outside the office and started an assembly from 01.00 PM and gave exasperated speech to incite all the employees. Thereafter, at about 03.00 PM, before the time when the Accountant General was to come to his office room, he took the crowd of people with him and gathered outside the office room of Accountant General and Deputy Chief Accountant (Administration) and put hurdles in the way of the Accountant General and did demonstration there. He took the employees to take part in the assembly and for doing demonstration without their will and consent and crated problems in their official works.
That the above said act of Sh. D.S. Thakur being a Government Office is an act of indecency and indiscipline.
ARTICLE-II That the above mentioned Sh. D.S. Thakur, Senior Accounts Officer has done an act of misconduct that on 06.03.97, he provoked some employees and other outsiders to forcibly enter inside the office of the Accountant General (Accounts)-I and attacked on the Accountant General and threw the telephone instruments lying on the table kept inside the office of the Accountant General. The above mentioned Sh.D.S. Thakur threw the files kept on the table of he Accountant General and provoked the crowd to switch off the lights of the room and to break the chairs and sofas lying inside the office of the Accountant General. Sh. Thakur threatened Principal Accountant General and Deputy Accountant General (Admn.) to kill them and declared that no Supervisory Officer, if appointed as Inquiry Officer will conduct the inquiry. Sh. Thakur with the help of crowd forcibly kept the Principal Accountant General and Deputy Chief Accountant (Administration) in the chamber of the Principal Accountant General and did not allow them to go outside the office after closing of the office hours i.e. at 06.00 PM. The above said officers were only able to go outside their office at 8.30 PM when the Additional Superintendent of Police and Additional District Magistrate made arrangements of their security. In this way, the above mentioned Sh. D.S. Thakur continuously created an environment of fear and terror.
That the above said act of Sh. D.S. Thakur being a Government Officer is an act of indecency and indiscipline.
ARTICLE-III That the above mentioned Sh. D.S. Thakur while on his duty as a Senior Accounts Officer has committed a misconduct in the office of Accountant General (Accounts & Entitlement)-II that on 10.03.1997, he gave exasperated speech to provoke the employees and provoked the employees to gather outside the office by leaving their official work apart and threatened all the employees not to give any statement regarding the said incident and in this way, the above mentioned Mr. Thakur created an environment of fear and terror.
That above said act of above mentioned Sh. D.S. Thakur, Sr. A.O., being a Government Employee is an cat of indiscipline and misconduct.
ARTICLE-IV That the above mentioned Sh. D.S. Thakur, has committed a misconduct , while on duty as Senior Accounts Officer in the office of Accountant General (A&E)-II. That on 12.03.1997, he closed the main gate of the office building from 7.30. a.m. and created hurdles for the employees entering inside the office building, and the continued to give exasperated speech during the entire working hours, and stopped all the employees to take part in their official activities and gathered a mob of persons on 13.03.1997 also from 7.30 a.m. and did not allow any of the employees to enter inside the office premises and therefore, the above mentioned Sh. D.S. Thakur created an environment of fear and terror.
That above said act of above mentioned Sh. D.S. Thakur, Sr. A.O., being a Government Employee is an act of indiscipline and misconduct.
3. As the applicant denied the charges detailed enquiry was conducted and the Inquiry Report was submitted on 02.04.2009, the conclusion and the findings of the Inquiry Officer reads as follows :-
CONCLUSIONS MADE BY THE INQUIRY OFFICER (A)
(i) CHARGE NO.1 From the analysis mentioned in Para Part-VI (i), this fact is clearly proved that assembly and demonstrations were done in the office and Sh. Thakur gave exasperated speech during the said assembly and he surrounded the Accountant General and Deputy Accountant General. In this regard, the prosecution has filed the statements of many persons as its evidence, but have not produced any witness. Absence of witnesses does not prove the seriousness of the said incident and its occurrence, as there would have been such circumstances in which producing a witness is not possible. In view of all the evidences, witnesses and circumstances and on the basis of the analysis made in Para Part VI (i), I reach on the conclusion that this charge is proved against Sh. Thakur.
(ii) CHARGE NO.2 From the analysis made in Para Part VI (ii), it is proved that the telephones and sofas were broken/ shattered and attack was made on the Accountant General. In view of all the evidences, witnesses and circumstances and on the basis of the analysis made in Para Part VI (ii), I reach on the conclusion that this charge is proved against Sh. Thakur.
(iii) CHARGE NO.3 From the analysis made in Para Part VI (iii), I reach on the conclusion that this charge is proved against Sh. Thakur.
(iv) CHARGE NO.4 From the analysis made in the Para Part IV (iv), I reach the conclusion that this charge is proved against Sh. Thakur.
(B) BRIEF :
Therefore, as mentioned above I found that all the charges mentioned in the said charge sheet are proved against Sh. Thakur.
4. A copy of the Inquiry Report was supplied to the applicant who submitted his representation on 29.04.2009. After considering the said representation, the Disciplinary Authority concluded on 11.06.2009 that all the charges were held as proved. As the applicant was a Gazetted Officer and had retired on superannuation on 31.03.2007, the Disciplinary case was, therefore, referred to the second respondent i.e. the Comptroller and Auditor General of India on 12.06.2009 for processing the case to get Presidential Order under Rule 9 of the CCS (Pension) Rules, 1972. He forwarded the same to the Ministry of Finance for obtaining Presidential order under the said rules. In consultation with the Union Public Service Commission, the first respondent on receipt of the advice considered the proved charges as grave and imposed on the applicant the penalty of withholding of 10% monthly pension for a period of three years. Assailing the said penalty order, he is before this Tribunal in the instant OA.
5. Highlighting the background of the case, Shri M. K. Bhardwaj, learned counsel for the applicant, would submit that applicant was not involved in the alleged misconduct as stated in the charge sheet. Delay of more than 12 years to complete the disciplinary proceedings as the charge sheet was issued to him in September, 1998 and the Presidential order has been issued in May, 2010 there has been an inordinate and unexplained delay which has caused serious prejudice to the applicant. In this context, Shri Bhardwaj places his reliance on the judgment of Honble Supreme Court in the mater of M. V. Bijlani versus Union of India reported in JT 2006 (4) 476 and submits that as the respondents have not explained the reasons for delay, the entire disciplinary proceeding is liable to be quashed mainly on the grounds of inordinate delay. Further, he submits that the co-delinquents of the applicant, namely, Satish Chandra Saxena and Shri J. B. Mishra, though charge sheeted but have been exonerated and the charges framed against them have been dropped vide order dated 25.01.2010 and 2.07.2008 respectively, but proceeding against the applicant has been continued penalizing him which is discriminatory approach of the respondents. His another contention was that the charges framed against the applicant did not have the list of witnesses for whom the Article of Charges were to be sustained. Thus, not indicating the list of witnesses in the charge sheet is violation of the mandatory provisions of Rule 14 (3) (ii) (b) of CCS (CCA) Rules. Thus, his contention is that the charge sheet is incomplete, indefinite and illegal and he relied on the judgment of this Tribunal in the case of Shyama Prasad Mitra versus Union of India and Others (1987) 3 ATC 281. There was violation of Rule 14 (4) of CCS (CCA) Rules as the applicant was not supplied the copies of listed documents in Annexure-A3 of the charge sheet. In this regard, Shri Bhardwaj places his reliance on the judgment of Honble Apex Court in a catena of judgments namely in the cases of Judicature at Bombay versus Shashi Karan Patil AIR-2000 (SC) 22; Kashinath Dixit versus Union of India AIR 1986 (SC) 2118 ; State of Assam and Another versus M. K. Das 1971 (1) SCR 87; Sawai Singh versus State of Rajasthan 1986 (2) SCR 957; Chandrama Tiwari versus Union of India 1987 Supp. SCC 518; State of UP versus Mohd. Sharif (1982) 2 SCC 376 and the judgment of Calcutta High Court in the matter of Eastern Coal Field Ltd. Versus Amresh Roy 2000 (3) SLR 2002 and judgment of this Tribunal in S. R. Shere versus Union of India [OA No.2071/04 decided on 04.12.2006].
6. His another limb of contentions relates to the fact that in 4 Articles of charges, more than 20 officials working in the office of AG, Gwalior have been mentioned but they have not been called for tendering evidence in the enquiry, to defend their statements, despite, the applicant questioning the authenticity of such statements in the course of the enquiry on 25.05.2001. This, Shri Bhardwaj submits, violates the CCA (CCA) Rules on the subject and places his reliance on the judgments in Sukhendra Chandra Das versus Union of India AIR 1962 Tripura 15; Union of India versus T. R. Verma TR 1957 SC 882; Central Bank of India versus P. C. Jain AIR 1969 SC 983; Narendra Prasad Yadav versus State of M.P. (2007) 1 SCC 681; State of UP versus Ravindra nath Chaturvedi 1995 Supp (3) SCC 522; UOI versus Mohd. Ibrahim (2004) 10 SCC 87; Bhupendra Pal Singh versus Director General of Civil Aviation (2003) 3 SCC 633; M/s Barelli Electric Supply Co. Ltd. Versus The Workmen and Other 1971 (2) SCR 67 and Roop Singh Negi versus PNB (2009) 2 SCC 570. Referring to the said judgments, he submits that the applicant did not have an opportunity to cross examine such witnesses and as such there was violation of the mandatory provisions of Rule 14 (15) of the CCS (CCA) Rules, 1965. In support of this contention, he places his reliance on the judgments of State of M.P. Versus Chintaman AIR 1961 SC 1923; Khem Chand versus UOI AIR 1958 SC 300; Modula India versus Kanakshaya Singh Deo (1988) 4 SCC 619.
7. Further, it is submitted by the applicants counsel that the Enquiry Officer has referred to the FIR filed in the case of the alleged incident and such FIR reference in the EOs report is violative of the Government instructions in OM dated 13.04.1967. The IO has relied on the news items which are not admissible piece of evidence against the applicant and hence, Shri Bhardwaj places his reliance on the judgments of Apex Court in the cases of Aghnoo Nageria versus State of Bihar AIR 1966 SC 119; Nisar Ali versus State of Uttar Pradesh AIR 1957 SC 366; Habib versus State of Bihar AIR 1972 SC 283 and State of Bombay versus Rusy Mistry AIR 1960 SC 391. His main contention in this regard is that the IO has taken into account extraneous factors into consideration which are not admissible as per law. The IO did not take into account the additional affidavit filed by Shri S. N. Wale who has given in writing that the applicant was all along sitting in his chamber in 6th March, 1997, the date on which the alleged misconduct is reported to have taken place. Another set of contention is that the Disciplinary Authority has not applied his mind and merely depending on the findings of the Enquiry Officer, has imposed the major penalty against the applicant. On the above ground of non-applicability of mind, he places his reliance on the judgment of Honble Supreme Court in the case of State of Bihar versus Laxmi Shankar Prasad (2202) 10 SCC 351. The Disciplinary Authority has not come to any definite conclusion that the alleged misconduct was grave in nature warranting withholding of pension under Rule 9 of CCS (Pension) Rules. He further submits that the Disciplinary Authority has merely adopted the advise of the Enquiry Officers report and the UPSC report and imposed the punishment. Shri Bhardwaj, therefore, urges that the OA should be allowed and the applicants withheld pension should be restored back to him.
8. On receipt of notice from the Tribunal, the respondents have entered appearance through Shri J. P. Saxena, learned counsel for the respondents and filed their reply affidavit on 22.12.2010. It is submitted that the alleged misconduct was subversive of discipline and against the public interest amounting to the conduct wholly unfair and unbecoming of a government servant. Shri Saxena, therefore, submits that the respondents have taken the disciplinary action properly and places his reliance on the judgment of Honble Supreme Court in the matter of Kendriya Vidyalaya Sangathan and Another versus Satbir Singh Mahla 2008 (4) SCC 445. His contention is that the Disciplinary Authority after consulting the concerned authorities and having gone through the findings of the Enquiry officer has held the charges as proved and considering the same as grave, inflicted the penalty of withholding of 10% monthly pension of the applicant for a period of 3 years. This, he submits, is proportionate to the proved misconduct. Refuting the allegation of the applicant that he was not supplied documents, Shri Saxena would refer to the applicants application available at Annexure-A2 of the OA to state that he was informed vide Memo dated 28.12.1998 that the statement of defence to be submitted by him under Rule 14 (5) (a) of CCS (CCA) Rules is limited to admitting or denying the charges indicated to him. For such admission or denial supply or inspection of such documents was not necessary. However, it was stated that when the enquiry commenced all requisite documents and copies of all original documents were supplied and those were received/inspected by the applicant. It is, therefore, not appropriate for the applicant to contend that he was denied reasonable opportunity by not providing the relevant documents required for his defence. Shri Saxena relied on the judgment of Honble Supreme Court in the case of Debotosh Pal Choudhary versus Punjab National Bank 2002 (8) SCC 68. His submission is that as per the CCS (CCA) Rules, the Disciplinary Authority may provide the list of witnesses or not in case the documentary evidences are available the same can be relied upon during the enquiry and as per sub Rule 15 of Rule 14, the Enquiry Authority may in its discretion allow the Presenting Officers to produce evidence not included in the list given to the delinquent officer. In the present case, he submits, calling for witnesses was not necessary. With regard to the listed document at Sl. No.25, not supplied to the applicant, he submits that the said document was not available and, therefore, could not be supplied to the applicant. Further the victim of the alleged misconduct of the applicant was Shri Y. R. Midha whereas the charge sheet was issued by Shri Shekhawat. Therefore, the Disciplinary Authority was not the victim and, as such, the Disciplinary Authority acted as per law and was not influenced by the complainant. Refuting the allegation that the inordinate delay has caused prejudice to the applicant, Shri Saxena would submit that the enquiry took longer time mainly because of the applicants non cooperation in the matter. With regard to the affidavits filed by Shri L. S. Raizada and Shri S. N. Wale, it is contended that the said affidavits have no evidentiary value as they did not present the affidavits before the IO. He further submits that after the detailed enquiry report was received and the defence statement has been received from the applicant, the Disciplinary Authority consulted the UPSC but the UPSCs advise though has been considered but the Disciplinary Authority has taken an independent decision without being influenced by the UPSC. Therefore, no prejudice had been caused to the applicant and the principle of natural justice has not been violated. He places his reliance on the judgment of Honble Supreme Court in the matter of Union of India and Another versus T. V. Patel (2007) 4 SCC 785. Referring to the dropping of charges against Shri Satish Chandra Saxena and Shri J. B. Mishra, the co-delinquents of the applicant, learned counsel would submit that the Respondent No.3 was the Disciplinary Authority in the case of the applicant, whereas Shri Satish Chandra Saxena and Shri J. B. Mishra never worked under the control of 3rd respondent. Therefore, applicants case cannot be linked with those two officers. It is contended that the names of the authors of the documents listed along with the charge memo clearly indicated the names of the persons whose statements were recorded in their official capacity not as private persons. Therefore, there was no need to give separate list of witnesses and this has not violated the enquiry proceedings. Shri Saxena would place his reliance on the judgments of Honble Supreme Court in the matters of Krishna Chandra Tondons versus Union of India AIR 1974 SC 1589; State Bank of Bikaner & Jaipur verus Prabha Dyal Brover (1995) 6 SCC 279; Director General of Indian Council of Medical Research versus Dr. Anil Ghosh (1998) 7 SCC 97, AIR 1998 SC 2592 and Ashok Kumar Mongra versus UCO Bank 2000 (2) SLI Del. 337. His contention is that the Enquiry Officer has strictly followed the principles and procedures laid down in the CCS (CCA) Rules and the documents/statements indicated in the charge sheet were the official documents received from various officers in their official capacity. Those are not the evidences of the witnesses and, therefore, there was no need to examine the authenticity of such documents and statements. However, 3 officers were examined and they have been shown the original documents who did not deny their statements appeared in the documents which form part of the enquiry. The IO felt it not necessary to call for the officials in the said enquiry and there was no violation of the CCS (CCA) Rules. It is ,therefore, contended that the principles of natural justice has been followed both by the Enquiry Officer and Disciplinary Authority. Punishment of withholding of 10% monthly pension for a period of three years is also proportionate and the penalty imposed is legally sustainable. He, therefore, argues that the OA should be dismissed.
9. Having heard the contentions of the rival parties, we have perused the pleadings and large number of judgments relied on by the respective parties. We may refer to some of those judgments which will be relevant in the present case. The main controversy for our determination is (a) about the compliance of the principles of natural justice in providing the documents and examination of witnesses, and (b) whether the proved misconduct is grave enough to impose penalty under Rule 9 of CCS (CCA) Rules.
10. With regard to the issue of violation of principles of natural justice, many elements were canvassed. We may analyse the same. The main ground was that the list of witnesses having not been enclosed to the charge memo, the same should be treated as incomplete and quashed. We note from the IOs report that enquiry has revealed that written documents as evidence have been filed by the prosecution. The document No.5 has mentioned that if any person would appear as witness against the applicant there was a threat that such persons would suffer wrong consequences outside the office. In the background of such threat, it was but natural that the prosecution would not like to bring any officers/persons as the witness. This fact has been taken note by the Enquiry Officer while analyzing the evidence on the charge mentioned in Article No.1 and held that the enquiry proceedings conducted even without getting the list of witnesses to be examined on behalf of the prosecution would not vitiate the proceedings but the absence of such list does not make the charge memo incomplete or illegal. Thus, we are of the considered opinion that not enclosing the list of witnesses in the charge memo has no way vitiated the disciplinary proceedings initiated against the applicant.
11. One more argument was that the applicant has not been supplied with the copy of the documents listed in the charge memo along with the charge memo which did not give him the opportunity to submit his defence statement properly. The close perusal of Rule 14 and Rule 15 of CCS (CCA) Rules manifest that the statement of defence required to be submitted by the applicant in response to the charge was only limited to admission or denial of the charges communicated to him. For such admission or denial there is no need to provide copies of the documents and statements listed in the charge memo, nor even there is need for inspection of documents. Therefore, the Disciplinary Authority was competent not to have provided the relevant documents relied on by the prosecution in support of the charges. It is appropriate for us to note that all the statements and the documents which have been indicated in the charge, the copies of those documents were given at the start of the enquiry by the Presenting Officer and IO has also permitted access to the applicant to inspect other documents and records. This aspect has also been brought by the Enquiry officer in his report. During the enquiry, under Article 3 of the charge, the Enquiry Officer has mentioned that the defence counsel raised the issue that the documents, statements and evidences are all false documents and have been prepared with connivance to falsely implicate the accused officer. He even demanded the handwriting experts available to check Document No.1 & 2. The IO, during the enquiry held on 12.11.2002, verified the handwritings and gave a clear ruling that there was no need to 3rd party to come to verify the documents about its authenticity. On the other hand, the IO took note that there was no difference appeared to be found in the handwriting specimen and the documents filed by the prosecution and from the perusal of the documents filed by the prosecution, the Article 3 of the charge stood proved.
12. Non examination of witnesses to authenticate their statements was another ground raised on behalf of the applicant with a plea that he did not get an opportunity to cross examine them. The respondents have replied that the documents which were required not to be authenticated are the documents available from the official records and the 3 witnesses who appeared on behalf of the prosecution authenticated the official documents. Therefore, there was no need to bring in witnesses to authenticate their respective statements which form part of the official records. It is understood from the IOs report that these documents and statements form part of the enquiry initially done when the alleged misconduct took place. Copies of these documents and statements having been provided to the applicant at the beginning of the enquiry, he had the opportunity to rebut the evidences gathered in such documents. In the absence of examination of witnesses by the prosecution, there was possibility of cross examination. With regard to granting opportunity to the delinquent officer to defend his case properly, we would place our reliance on the judgment of Honble Supreme Court in the case of Dr. Anil Ghosh (supra), wherein, it has been held that where neither the Enquiry Officer nor the Disciplinary Authority has relied on the representation made against the delinquent officer for arriving at his conclusion such delinquent officer cannot make a grievance of the denial of the reasonable opportunity on grounds of non supply of copies of those representations. Therefore, to raise issue that he did not have the opportunity to cross examine the witnesses who are not brought in by the prosecution, does not hold any ground.
13. Another set of contention was that extraneous matters have been considered by the IO while coming to the conclusion against the applicant. Counsel for the applicant cited the FIR report and the news paper cuttings which have not been authenticated by the concerned witnesses. It is seen from the Enquiry Report that copy of the FIR and the news paper cuttings on the alleged misconduct have been given to the applicant as part of the statements and documents listed in the charge memo. The IO has referred to those as facts of the allegation. The applicant was in receipt of copy of these FIR and news paper cuttings. Hence, those cannot be considered to be extraneous to the enquiry.
14. After a close scrutiny of the evidence led during the enquiry, we find that the IO has followed the principles of natural justice while conducting the enquiry. Even the order passed by the competent authority though has referred to the advise of the Union Public Service Commission but we find that the competent authority has not been influenced by the views expressed by the UPSC. The orders of the Disciplinary Authority passed on 12.05.2010 and communicated to him on 21.05.2010 is legally sustainable as the decision of the competent authority is an independent decision though appropriate consultations have been done.
15. We may refer to the next issue of penalty imposed on the applicant under Pension Rules. In order to assess whether the charges are grave enough or not, we may briefly refer as to how the IO has arrived at the conclusion that all 4 articles of charges are held as proved and whether those are grave. Let us briefly refer to the charge. The applicant was involved in the unlawful assembly and demonstration done in the AG office. The applicant gave exasperated speech in the said assembly. He surrounded the AG and Deputy AG. Further, it is held as proved that the applicant has been instrumental in damaging the telephones, sofas and attack on the AG. This, in our considered opinion, is sufficient enough to hold the charge as grave, and the Disciplinary Authority has very rightly held such charge as grave as has been found to be proved in the enquiry. In view of the above, the competent Disciplinary Authority having held the charge as proved and the same being grave in nature and the applicant superannuated on 31.03.2007 the Disciplinary Authority has invoked Rule 9 of CCS (Pension) Rules and imposed the penalty of withholding of 10% of monthly pension for a period of three years on the applicant. This, in our considered opinion, is proportionate to the grave nature of the proved misconduct. In Union of India & Anr. Versus G. Ganayutham (1997) 7 SCC 463, it is held by the Apex Court that President has the power to withheld a particular percentage of pension of a retired delinquent officer against whom the charges have been held as grave and proved and such action cannot be interfered with unless such action is found to be unreasonable or irrational. In the present case, we find that the judicial review of the action of the Disciplinary Authority is not called for as we find the penalty order is reasonable, rational and proportionate.
16. In Kendriya Vidyalaya Sangathans case (supra) the Honble Supreme Court while considering the orders passed by the Tribunal relating to the penalty imposed on the respondent as disproportionate, the Apex Court while setting aside the Tribunals order held that A teacher has to be a role model in the Society. He is a guru who sets an example for the students. A person who physically assaults the Principal of the Institution is, in our opinion, not fit to be a teacher. In the instant case, a comparison can be given that the applicant was an employee of the AGs office and AG was the senior most officer of his department, the alleged misconduct found to be proved reflects that the AG has been gheroed, prevented to do his official duties and assaulted. These are the facts on record which have been brought in the enquiry. Therefore, this Tribunal restrains itself to interfere in the punishment which has been awarded on the applicant for the said grave misconduct.
17. An important contention was about the delay in completion of the disciplinary proceedings. It was contended that the alleged misconduct took place in the year 1998 and the punishment was imposed on the applicant in May, 2010 and the period thus taken is unexplained by the respondents. A careful study of the Pleadings, Enquiry Report, representations received from the applicant and the process undertaken in getting the Presidential order passed would manifest that (i) at the enquiry stage the applicant was not fully cooperating with the Enquiry Officer and (ii) as the applicant retired, the Presidential Order was to be passed by the Government. The entire decision making process has taken time which, in our opinion, is not undue in the matters of the alleged misconduct as has been indicated in this case. We, therefore, do not find any merit in the contention that the delay has caused prejudice to the applicant.
18. We examined the ground of discrimination raised by the applicant in the sense that the co-delinquents of the applicant were departmentally dealt by the Disciplinary Authority as was in case of the applicant, but they were exonerated whereas the applicant was inflicted with a penalty. It is clear that the nature and extent of co-delinquents involvement in the alleged misconduct and that of the applicant being dissimilar and magnitude of involvement in the misconduct committed by the co-delinquents compared to the applicant would be far different for which no comparative analysis could be done to extend the same benefit of exoneration to the applicant. Thus, the question of discriminatory treatment meted out to the applicant does not hold ground calling for our intervention.
19. Having considered the totality of facts and circumstances of the case, and guided by the extant statutory provisions in imposing the punishment of withholding 10% of monthly pension for a period of 3 years on the applicant, we come to the considered conclusion that there are no grounds on which this Tribunal should interfere in the punishment imposed on the applicant by the competent Disciplinary Authority.
20. Resultantly, finding no merits in the OA, the same is dismissed, leaving the parties, however, to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/