Central Administrative Tribunal - Jaipur
Shyam Singh Rajpurohit vs Nehru Yuva Kendra Sangathan (Nykso), ... on 28 January, 2021
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OA No. 291/544/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 291/544/2019
Order reserved on 22.01.2021
DATE OF ORDER: 28.01.2021
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Shyam Singh Rajpurohit S/o Late Shri Jai Singh aged
around 57 years, R/o Quarter No. 9, Type-IV, CPWD
Colony Sector-2, Vidyadhar Nagar, Jaipur-302035
Now deputy director, Nehru Yuva Sangathan, Udaipur.
Mob. 9414474434 - Group-B.
....Applicant
Shri Amit Mathur, counsel for applicant (through Video
Conferencing).
VERSUS
1. Nehru Yuva Sangathan through its Director
General, Ministry of Youth Affairs & Sports
(Government of India), 4-Jeevan Deep Building,
Ground Floor, Parliament Street, New Delhi -
110001.
2. State of Rajasthan through its Secretary, Youth &
Sports, Government Secretariat, Jaipur-302005
(Raj.).
....Respondents
Shri Anand Sharma, counsel for respondent No. 1
(through Video Conferencing).
Shri V.D. Sharma, counsel for respondent No. 2
(through Video Conferencing).
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OA No. 291/544/2019
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"It is therefore prayed that the present original application made by the applicant may kindly be allowed. The order dated 28.06.2018 (Annex- A/1) and 26.12.2018 (Annex-A/2) may kindly be quashed and set aside. The directions may be issued to the respondent to give all consequential benefits to the applicant including promotion.
Any other relief or direction which this learned tribunal deems fit in the facts and circumstances of the case may also be passed in favour of applicant."
2. The brief facts of the case, as stated by the applicant, are that he was initially appointed on the post of Program Coordinator. He was eligible for promotion to the post of Regional Coordinator which was later on re-designated as Deputy Director. Though eligible for said promotion, he was kept on waiting list and instead juniors were given promotion to the post of Deputy Director. On 10.06.2010, he was served with a Memorandum under Rule 16 of CCS (CCA) Rules, 1965, (Annexure A/3), containing two charges; firstly that while working as Deputy Director 3 OA No. 291/544/2019 during the year 2008-09, he has allegedly taken additional charge of Member Secretary of Rajasthan Youth Board, Government of Rajasthan without taking approval of the competent authority and secondly during the period 2008-09, he issued an order for Shri. R.C. Paliwal to take over the additional charge of clerical work for which he was not competent. Though there was no need for appointment of an Inquiry Officer, yet the respondents appointed an Inquiry Officer to conduct an enquiry for charges levelled under Rule 16 of CCS (CCA) Rules, 1965. The applicant replied to the charge sheet. Considering the reply of the applicant and documents placed before it, the Inquiry Officer disproved the charges levelled against the applicant. Though the enquiry report was submitted on 22.03.2013 to the Disciplinary Authority but no action was taken by the Disciplinary Authority for few years and the matter was kept unnecessarily pending. In order to delay the matter further, the same was referred to the vigilance wing though the same was irrelevant. Finally, vide order dated 30.03.2016, (Annexure A/12), the enquiry report was served upon the applicant without any Disagreement Note. It is only on 18.01.2017, the respondents 4 OA No. 291/544/2019 issued Disagreement Note stating that the Chief Vigilance Officer and the Competent Authority are in disagreement with the I.O. Report. The applicant filed reply to the same on 08.02.2017 (Annexure A/15) pointing out several lacunas. The respondents after 1 and 1/2 years, on 28.06.2018, (Annexure A/1), passed orders imposing penalty of withholding of two increments for two years without cumulative effect. The applicant preferred an appeal against the same and the Appellate Authority rejected the said Appeal vide its order dated 26.12.2018 (Annexure A/2). Being aggrieved by the said orders, applicant filed the present Original Application for quashing and setting aside the same.
3. The respondent No. 1 vide its reply stated that the applicant while working as Deputy Director, State Office of NYKS at Jaipur had taken additional charge of Member Secretary of Rajasthan Youth Board, Government of Rajasthan without any approval or permission of the Competent Authority. Prior to accepting charge of another organization, the applicant was duty bound to take approval/permission from his employer i.e. NYKS. Consequent of his dual 5 OA No. 291/544/2019 charge and responsibilities (one in parent and other in another organization), the applicant could not do justice to the duties assigned to him by his employer. Apart from holding additional charge in another organization, he issued an order beyond his powers and authority, for another employee i.e. Shri. R.C. Paliwal working as Accounts Clerk-cum-Typist at District office of NYK, Jhunjhunu to take additional charge of clerical work in another organization i.e. Rajasthan Youth Board. Accordingly, the applicant was charge-sheeted and after reply, enquiry proceedings were conducted. The Disciplinary Authority while concluding the departmental enquiry proceedings, carefully considered the facts, circumstances, records and written say of the applicant and found the applicant guilty of the charges. Then Disciplinary Authority imposed penalty of withholding of two increments for two years vide order dated 28.06.2018 (Annexure A/1). Also the Appellate Authority rejected the appeal of the applicant as he did not find any reasons to interfere with the quantum of penalty and dismissed the appeal vide order dated 26.12.2018 (Annexure A/2). Both the impugned orders were well reasoned and speaking 6 OA No. 291/544/2019 one. In view of the same, applicant is not entitled to any relief as the orders passed by the authorities are just and proper.
4. The respondent No. 2 has not filed any written reply though several chances were given for the same. But he has orally argued raising preliminary objection that the applicant has not made Chairman, BoG of NYKS, which is a necessary party, who has passed the Appellate Order and which order has been challenged by the applicant. He relied on the judgment of the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and another, reported in AIR 1963 Supreme Court 786 as well as in the case of Poonam vs. State of Uttar Pradesh and Others, reported in (2016) 2 SCC 779, wherein it is held that a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Non-joinder of necessary party may be fatal. Therefore, in absence of necessary party, the present Original Application fails and deserves to be rejected.
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5. We have heard learned counsels for the parties at length through Video Conferencing and examined the pleadings minutely as well as the written submissions including the judgments cited by the parties.
6. The applicant besides reiterating his submissions further added that there are several lacunas and the manner in which the impugned orders are passed which clearly shows that they are non-speaking and non-reasoned. There was inordinate delay in completion of proceedings. It was minor penalty charge sheet and despite no witnesses, the Inquiry Officer took three years in submitting his report, which he did in 2013, though charge sheet was served on 10.06.2010 and reply was filed by the applicant within time, but the Inquiry Officer's report was communicated to the applicant only in 2016 and in 2017, he was served with Disagreement Note. It took four years to the respondents to convey the Disagreement Note and there is no justification for the said inordinate delay. It is due to pendency of enquiry, the applicant was deprived of his promotion to the post of Deputy Director. The matter was referred to Vigilance unnecessarily though not 8 OA No. 291/544/2019 required but with ulterior motive to delay the promotion of the applicant and his up-gradation. Disagreement Note does not contain any reasons but the same was issued only with the purpose to harass the applicant. Also the Disagreement Note is in violation of Rule 15 of the CCS (CCA) Rules, 1965. It is only after NOC for joining Youth Board was given, the order granting additional charge was passed. It was further stated that in past also various officers have taken additional charge without any prior approval. He has neither received any additional pay or allowances for the same nor the work of NYK was affected. In fact, he has suffered heavy losses being deprived of financial up-gradation as well as promotion due to the delay of the department in conducting enquiry and passing orders. He had followed the directions of the Hon'ble Governor and for the same he cannot be punished. The applicant, therefore, states that such act of the respondents is against the principles of natural justice and in violation of Articles 14 and 16 of the Constitution of India. Therefore, being aggrieved by the arbitrary action of the respondents, the applicant has filed the present Original Application for quashing and setting aside the 9 OA No. 291/544/2019 order dated 28.06.2018 (Annexure A/1) passed by Disciplinary Authority as well as the order dated 26.12.2018 (Annexure A/2) passed by the Appellate Authority and for all consequential benefits including promotion.
7. The respondents stated that there is no force in the argument of the applicant. It is submitted that the applicant was issued NOC on his request to apply for deputation post only and not for joining or taking additional charge in another organization. There is a procedure for applying and joining on deputation in another organization. The employee concerned has to follow and complete the procedure. The charge sheet was issued under Rule 16 of CCS (CCA) Rules, 1965 wherein opportunity was given to the applicant to submit his representation in his defence. As per rules, the reply of the applicant when found unsatisfactory, Disciplinary Authority decided to appoint Inquiry Officer to conduct the enquiry. As the Disciplinary Authority was not satisfied with the findings of the Inquiry Officer, he was empowered to take appropriate proceedings /take action in public interest. Therefore, Inquiry Report as well as Disagreement 10 OA No. 291/544/2019 Note was issued. Thereafter, the appeal of the applicant was decided by the Appellate Authority as per rules. It is to state that both the authorities have passed reasoned orders. It is further stated that the delay in concluding departmental proceedings was only due to procedural and administrative reasons and not intentional. It is further stated that the applicant was considered for promotion but the same could not be made effective due to the pendency of punishment. Therefore, the impugned orders dated 28.06.2018 as well as 26.12.2018 are just and proper and there is no violation of Articles 14 and 16 of the Constitution of India. The respondents stated that the scope of judicial review is limited in disciplinary proceedings and relied on the judgment of the Hon'ble Supreme Court in the case of State of Tamil Nadu & Anr. vs. M. Mangayarkarasi & Etc., reported in [2018] Supreme (SC) 1284.
8. The core question which requires to be adjudicated is whether due to inordinate delay in completion of disciplinary proceedings has delayed the promotion of the applicant and his up-gradation.
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9. As seen the applicant while working as Deputy Director was charge sheeted vide Memorandum dated 10.06.2010 (Annexure A/3) for two charges, firstly that while working as Deputy Director, NYKS, Jaipur (Rajasthan) during the year 2008-09 has allegedly taken additional charge of Member Secretary of Rajasthan Youth Board, Government of Rajasthan without taking approval / permission of the competent authority. His second charge was that he while working as Deputy Director, NYKS, Jaipur (Rajasthan) during the year 2008-09 has issued an order for Shri R. C. Paliwal, ACT, NYK, Jhunjhunu to take over additional charge of clerical work in Rajasthan Youth Board for which he was not the competent authority. In the statement of imputations of misconduct/ misbehaviour against the applicant, some of the high lights are as under:-
a) It was pointed that he was given NOC only for applying for deputation to the Department of Youth Affairs & Sports, Government of Rajasthan, therefore, he was supposed to obtain prior permission and relieving order from the Competent Authority i.e. DG, NYKS before joining the said post.
b) Negligence towards his duty of his parent department for which he was paid.
c) Post of Member Secretary in Rajasthan Youth Board is a full time post.12
OA No. 291/544/2019
d) Issued unauthorised order in favour of Shri R.C. Paliwal, ACT, NYK, Jhunjhunu to take over additional charge of clerical work in Rajasthan Youth Board from Shri Kamal Sharma, Rajasthan Rajya Krida Parishad, Jaipur.
10. It is seen that on 22.04.2009 (Annexure A/4), Govt. of Rajasthan had sent a communication to the Director General, NYKS that the services of the applicant are required in Rajasthan Youth Board, Jaipur as Secretary on deputation for three years and, accordingly, Govt. of Rajasthan issued order dated 12.11.2009 (Annexure A/5) stating that applicant will perform additional charge of Rajasthan Youth Board, Jaipur. Accordingly, the applicant on the same day assumed the charge of Member Secretary, Rajasthan Youth Board, Jaipur. He had informed the Zonal Director about his accepting the additional charge vide letter dated 04.12.2009 relying on the order dated 12.11.2009 presuming that as NOC was granted, therefore, there was permission for deputation. It was further pointed out that there were several instances in past as such where no prior permission of NYKS was obtained for taking appointment as Member Secretary. Also for the said post, no additional remuneration is paid neither he has violated the provisions of conduct rules.
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11. The applicant had submitted a detailed reply to the charge memorandum on 05.07.2010. The applicant had made all these submissions before the Inquiry Officer though there was no requirement of Inquiry Officer in minor penalty charge sheet. It is seen that the respondents had appointed an Inquiry Officer to conduct an enquiry where the charges levelled were under Rule 16 of the CCS (CCA) Rules, 1965. After considering the submissions of the applicant along with the documents placed by him, the Inquiry Officer disproved the charges levelled upon the applicant. The enquiry report was submitted by the Inquiry Officer on 22.03.2013 to the Disciplinary Authority wherein it was clearly pointed out that it was a normal practice of using officers of NYK in State Board or District Board and also that approval for additional charge of competent authority was existing. It is on 30.03.2016 (Annexure A/10) a letter was issued by Deputy Director (Vig.) under Rule 15 (1-a) of CCS (CCA) Rules, 1965 asking the applicant to submit his comments on the Inquiry Officer's report though he was not the disciplinary authority of the applicant. The said sub rule (1-a ) was substituted by 14 OA No. 291/544/2019 Rule-2 and Rule 2-a vide Govt. of India Notification dated 21.08.2000 which was published in the Gazette on 02.09.2000. It is clear that the Disciplinary Authority has to submit his points of disagreement along with the Inquiry Officer's report. But it is seen that the matter was kept unnecessarily pending as the said matter was referred to vigilance though there was no case of any misappropriation of funds. The applicant had replied to the said report on 13.04.2016 categorically pointing out the details and the manner in which he had accepted the additional charge. No Disagreement Note was submitted to him along with the Inquiry Officer's report on 30.03.2016, but the same was subsequently issued to him on 18.01.2017 (Annexure A/13) stating that though the Inquiry Officer has not proved the charges but the Vigilance Officer as well as the competent authority are in disagreement with the Inquiry Officer's report. Reply to the same was filed in detail by the applicant on 08.02.2017(Annexure A/15). It is seen that again matter was kept pending for another 1½ years and then Disciplinary Authority passed penalty of withholding of two increments for two years without cumulative effect vide its order dated 28.06.2018. 15 OA No. 291/544/2019 Against the said order, applicant preferred an appeal raising several issues which too was rejected by the Appellate Authority vide its order dated 26.12.2018.
12. After going through the pleadings in detail, it is seen that there is a preliminary objection raised by the respondent No. 2 against applicant for not impleading Appellate Authority i.e. Chairman BoG, NYK as party respondent which according to them is a necessary party. This objection cannot sustain as Nehru Yuva Sangathan is a party respondent and also respondent No. 1 as such has not raised any such objections and it is, therefore, deemed that they represent the Chairman also. Second aspect which draws our attention is to the fact that there is an inordinate delay in completion of the proceedings. Though there were no witnesses in the enquiry, the Inquiry Officer took three years to submit its report which was submitted on 22.03.2013. The Inquiry Officer has disproved the charges levelled against the applicant. It is sad to note that from 2013 till 2016 i.e. for almost 3 years, there was no development. On 30.03.2016, the Inquiry Officer's report was communicated to the applicant under Rule 15(1-a) of 16 OA No. 291/544/2019 CCS (CCA) Rules, 1965 without supplying Disagreement Note. It is only on 18.01.2017, Disagreement Note was issued to the applicant who replied to the same on 08.02.2017. Again the Disciplinary Authority took 1½ years in passing the penalty order dated 28.06.2018. Therefore, the manner, in which disciplinary proceedings were conducted, clearly shows the irresponsible and lethargic attitude of the respondents and their behaviour in delaying the proceedings shows that their intention was to harass the applicant for the reasons best known to them. It also shows that the respondents proceeded in the inquiry in a complete casual manner. There is no satisfactory explanation on the part of the respondents for the inordinate delay in conducting the departmental disciplinary proceedings. This protracted manner of the respondents in conducting the disciplinary proceedings should be avoided not only in the interest of the Government employee but in public interest and also in the interests of inspiring the confidence in the minds of the Government employees. As a matter of fact, mental agony and sufferings caused to the employee concerned due to unnecessary prolonged enquiry 17 OA No. 291/544/2019 conducted by the department should also be considered without any fault on his part in delaying the proceedings, which clearly affects his further promotions and other monetary benefits. Therefore, we are very clear in our minds that towards such conduct on the part of the department, we have to consider the nature of the charges, its complexity and on what account the delay has occurred. In the present case, as seen the delay is unexplained, therefore, prejudice is caused to the delinquent employee on the face of it. Normally the Courts should not interfere in such matters and the disciplinary proceedings should be allowed to take their course as per relevant rules but then if the inordinate delay in conducting such proceedings is clear then in such cases Courts have to intervene to see that the delinquent employee gets justice. Thus, for the delay in conducting the disciplinary proceedings, the delinquent employee cannot be made to suffer. Also the delinquent employee has a right to see that the disciplinary proceedings levelled against him are concluded expeditiously. We are in agreement with the judgments relied by the applicant on this aspect. The judgments of the Hon'ble Apex 18 OA No. 291/544/2019 Court in the cases of State of Madhya Pradesh vs. Bani Singh and another, reported in 1990 (Supp) SCC 738 as well as P.V. Mahadevan vs. MD, T.N. Housing Board, reported in (2005) 6 SCC 636 are very clear that unexplained delay in conclusion of the disciplinary proceedings is an indication of prejudice caused to the employee and, therefore, the same require to be quashed.
13. Besides delay on the part of the respondents, it is also noticed from the pleadings that there was a normal practice in the past that the employees of Nehru Yuva Kendra Sangathan also performed additional duties in Rajasthan Youth Board, Govt. of Rajasthan. The employees were not getting any financial benefits or additional remuneration for undergoing such duties. Pertaining to the question of NOC, it is seen that only after receipt of the communication dated 22.04.2009 (Annexure A/4) from the Hon'ble Minister of State, Department of Youth Affairs & Sports, Government of Rajasthan, Jaipur requesting Nehru Yuva Kendra Sangathan to place the applicant on deputation, the applicant took over the additional charge of Member Secretary of 19 OA No. 291/544/2019 Rajasthan Youth Board, Jaipur. He had to obey the duties of the higher official and, therefore, could not show technical reasons for grant of NOC and, therefore, he immediately informed Zonal Director, Rajasthan vide his letter dated 04.12.2009 that he has taken additional charge. No objections were raised by the respondents at that relevant time and, therefore, it cannot be said that the applicant has violated provisions of conduct rules. Also towards issuance of order by the applicant in respect of Shri R.C. Paliwal, ACT, NYK, Jhunjhunu for taking over the additional charge of clerical work in Rajasthan Youth Board, if seen, again it is clear that no additional salary was paid to Shri Paliwal nor any single instance is pointed out by the respondents that Shri Paliwal has failed in his duties. Merely alleging that such appointment of Shri Paliwal resulted in negligence of duties will not suffice. One more point which draws our attention and requires to be considered is that the Disciplinary Authority has not given any reasons in detail for disagreeing with the Inquiry Officer. It was required to give proper reasons for disagreeing with the Inquiry Officer's report. Recording of reasons in support ensures that the decision is reached according to law 20 OA No. 291/544/2019 and is not the result of caprice, whim or fancy or reached on the grounds of policy or expediency. Normally, a party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons, the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just. Therefore, it is clear that the Disciplinary Authority in the present case has failed to convey the tentative reasons for disagreeing with the findings of the Enquiry Officer. As rightly held by the Hon'ble Apex Court in the case of Punjab National Bank and Others vs. Kunj Behari Mishra, reported in (1998) 7 SCC 84 : 1998 SCC (L&S) 1783, opportunity of hearing to charged employee has to be given before reversing findings of the Inquiry Officer and tentative reasons are required to be given for such disagreement as by mere submission of enquiry report, the Disciplinary Authority does not bring an end to enquiry proceedings.
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14. In the light of the discussions made in the above paragraphs, we have no hesitation to quash and set aside the impugned order dated 28.06.2018 (Annexure A/1) as well as order dated 26.12.2018 (Annexure A/2) and, therefore, the same are quashed and set aside. Accordingly, the present Original Application is allowed. In view of quashing of the said orders, the applicant will be entitled for all consequential benefits including promotions. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER Kumawat