Central Administrative Tribunal - Ernakulam
A. Kunjuraman vs The Comptroller & Auditor General Of ... on 5 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 895 of 2009
Tuesday, this the 05th day of July, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
A. Kunjuraman,
S/o. R. Ayyan,
Senior Auditor - SRA-III Section,
Office of the Principal General (Audit),
Kerala, Trivandrum,
Residing at : "ZIGMA", RRA-22(A),
Rose Nagar, Sreekaryam P.O.,
Thiruvananthapuram : 695 017 ... Applicant.
(By Advocate Mr. T.C. Govindasamy)
v e r s u s
1. The Comptroller & Auditor General of India,
Government of India, New Delhi.
2. The Principal Accountant General (Audit)
Kerala, Thiruvananthapuram.
3. The Deputy Accountant General (Admn.),
O/o. The Principal Accountant General (Audit)
Kerala, Thiruvananthapuram.
4. Shri S. Nagalsmy,
Principal Accountant General (Audit)
Kerala, Thiruvananthapuram.
5. Shri V. Ravindran,
Principal Accountant General (A&E)
Andhra Pradesh, Hyderabad. ... Respondents.
(By Advocate Mr. V.V. Asokan)
This application having been heard on 13.06.2011, the Tribunal on
05.07.11 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant in this O.A is a Senior Auditor in the office of the Principal Accountant General (Audit), Kerala, Thiruvananthapuram. He had participated in certain programmes of protest held on 12.01.2007,17.04.2007 and 01.06.2007 against the suspension of one Senior Accountant of A&E Office in connection with the issue of 'one rank one pension'. He was served with Annexure A-3 Memo dated 16.04.2007 and Annexure A-7 Memo dated 06.06.2007 to show cause why action should not be taken against him for violating the provisions of CCS (Conduct) Rules, 1964. As the explanation submitted by the applicant was not satisfactory, the Disciplinary Authority issued a charge sheet vide Annex A-10 Memo dated 20.08.2007. The enquiry officer and presenting officer were appointed. A copy of the enquiry report was endorsed to the applicant vide A-14 Memo dated 22.07.2008. The Disciplinary Authority after taking into consideration of all aspects and gravity of misconduct, imposed the penalty of reduction of one stage from Rs. 7600/- to Rs. 7425/- in the pre-revised scale of Rs. 5500-9000 for a period of two years with cumulative effect as per Annexure A-1 order dated 28.08.2008. The Appellate Authority as per Annexure A-2 order dated 24.12.2008 confirmed the same. Aggrieved, the applicant has filed this O.A. challenging the Annexure A-1 order of the Disciplinary Authority and Annexure A-2 order of the Appellate Authority and sought the following reliefs:
(i) Call for the records leading to the issue of Annexures A-1 and A-2 and quash the same and direct the respondents to grant all consequential benefits arising therefrom as if Annexures A-1 and A-2 had not been issued at all;
(ii)Award costs of incidental to this application;
(iii)Pass such other orders or directions as deemed just and fit and necessary in the facts nd circumstances of the case.
2. The applicant submits that there is no evidence on record to substantiate the charges levelled against him. No evidence at all was placed on behalf of the Disciplinary Authority and no documents were proved in the manner known to law. The applicant further submits that there is absolutely no misconduct on his part. The charges said to have been proved against him does not constitute a misconduct falling within the ambit of that term. The order of the Appellate Authority is contrary to Rules 27 of CCS (CCA) Rules and the same does not satisfy the requirements specified under the rules. The Appellate Authority failed to notice that the penalty imposed cannot be operated in the revised Pay Band with Grade Pay. The penalty imposed on the applicant is discriminatory in as much as those who were working under the Accountant General (A&E) alleged to have committed similar offences on the same day were hauled up only under Rule 16 of the CCS (CCA) Rules and imposed the minor penalty of withholding of annual increment, when a major penalty was imposed on him under Rule 14.
3. In the reply statement filed by the respondents, they submitted that Annexures A-1 and A-2 orders were issued after following the procedure prescribed in the CCS (CCA) Rules, 1965. The intention of the applicant for remaining in the office premises even after office hours shows his intention to participate in the illegal congregation in front of the portico of the main building of the Accountant General (A&E) Kerala. The Disciplinary Authority, taking into consideration of the contention of the applicant that he he had remained in the Section upto 5.30 p.m., dropped the charges contained in Article I. However, his participation in the illegal activities after office hours was unbecoming of a Government servant violating the clause (iii) of sub rule 1 of Rule 3 of the Conduct Rules and clause (ii) of Rule 7 of the CCS (Conduct) Rules, 1964. The applicant had applied for casual leave for the forenoon on 17.04.2007 on the ground of urgent personal matter, which was sanctioned by the competent authority in good faith. However, the applicant came to the office on 17.04.2007 and participated in the dharna held on 17.04.2007. As regards the demonstration on 01.06.2007, the applicant was warned not to indulge in such activities in future. However, the issuance of warning does not prevent the disciplinary authority from taking disciplinary action under the relevant provisions of the CCS (CCA) Rules. Annexures A-1 and A-10 are issued by the competent authority in respect of the applicant. The applicant had indulged in activities which were coming under the ambit of misconduct as defined in the CCS (Conduct) Rules. The Disciplinary Authority is competent to impose dies non under the provisions of the Fundamental Rule
17. The applicant has not brought any material evidence to prove against the charges framed against him. The order Annexure A-1 does not need any revision on account of the new pay scale. The applicant had not brought any complaint on this issue since the date of implementation of the pay revision orders with effect from 01.09.2008. The charge sheet issued to the applicant was for initiating major penalty. Reduction of increment in the scale of pay with cumulative effect is the lowest penalty included in the major penalties (v) to (ix) contained in Rule 11 of the CCS (CCA) Rules, 1965.
4. In the rejoinder, the applicant submitted that the part of CCS (CCA) Rules dealing with the reduction in stage is no longer capable of operation in the absence of any amendment to the rules or proper clarification regarding the same. The charge sheet alleged that the applicant participated in the demonstration held in the premises of the office of the Accountant General (A&E) at 4.40 p.m. On 12.01.2007. But no evidence was adduced during the enquiry to substantiate the allegation It is clear from Annexure A-8 memo that the warning issued to the applicant was in culmination of disciplinary proceedings initiated in Annexure A-7 memo. The disciplinary proceedings were ended in warning. In State of Uttaranchal vs. Kharak Singh, 2008 INSC 1366 (13 August 2008), Hon'ble Supreme Court had observed that domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not and so, care must be taken to see that these enquiries do not become empty formalities. It was further submitted that if in a given case a higher authority and a lower authority are having concurrent powers and if the higher authority exercises such power then the lower authority cannot continue exercise of the same power. The post of Sr. Dy. Accountant General carries pay in PB-4 Rs. 37400-67000 with Grade Pay of Rs. 8700/- whereas the Dy. Accountant General carries pay in PB-3 Rs. 15600-39100 with Grade Pay of Rs. 6600/-. The Sr. Dy. Accountant General who is of the rank of Director of Audit draws higher pay scale/pay band and GP whereas the authority who has chosen to impose the penalty is only the rank of Dy. Diector of Audit drawing lesser pay. The Principal Bench of the CAT in its order dated 02.02.2010 in O.A. No. 2944/2009 observed that if a person is to be charged with lack of integrity and devotion to duty, specific instances in that regard shall have to be mentioned. Simply mentioning that the applicant had conducted himself in a way that he had shown lack of integrity and devotion to duty would not be enough. The applicant further drew our attention to Government of India decision No. MHAO.M. No. 6/26/60-Estt.(A) dated 08.06.62. In support of his arguments, the applicant relied on the decisions of the Apex Court reported in AIR 1962 SC 1166, AIR 1969 SC 983, AIR 1999 SC 677, 2006 SCC (L&S) 919, (2009) 1 SCC (L&S) 152 and (2009) 1 SCC (L&S) 398.
5. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. V.V. Asokan, learned counsel for the respondents and perused the materials on record.
6. Out of 9 charges against the applicant, the charges VII to IX pertain to participation in the demonstration held on 01.06.2007 at 12.45 p.m. In front of the chamber of Principal Accountant General (Audit), Kerala, Thiruvananthapuram. The applicant was warned not to indulge in such activities in future. The stand taken by the respondents in the reply statement that issuance of warning is only an administrative action and it does prevent the Disciplinary Authority from taking disciplinary action under the relevant provisions of CCS (CCA) Rules, is at variance with the finding of the Appellate Authority in Annexure A-2 order dated 24.12.2008. The Appellate Authority had given its finding as under :
"8. The Disciplinary Authority had come to the conclusion that the three charges in Articles VII, VIII & IX were proved. But it is noticed that Shri A. Kunjuraman was already issued a warning dated 10.07.2007 by the disciplinary authority for his participation in the demonstration and placed a copy in his CR dossier for his act on 1.6.2007. Thus, the disciplinary authority had already taken action on this charge. Hence the undersigned comes to the conclusion that the charged official should not be punished twice for the same charge. Therefore, Shri A. Kunjuraman is relieved of the charges VII, VIII and IX."
In our considered view, the finding given by the Appellate Authority is correct. An employee should not be punished twice for the same charge. The Disciplinary Authority had concluded that the charges against the applicant for participation in the demonstration on 01.06.2007 merited a warning only and placed a copy of warning in his CR dossier. The proposed disciplinary action against the applicant was closed by the competent authority by issuing the said warning. Therefore, the charges VII to IX are treated as dropped.
7. The remaining six charges against the applicant are as under :
"ARTICLE I That the said Sri.A.Kunjuraman, while functioning as Senior Auditor in the office of the Principal Accountant General (Audit) Kerala, participated in the demonstration/agitation held on 12/01/2007 at 4.40PM in the premises of the office of the Accountant General (A&E) Kerala, and blocked the passage of the Accountant General (A&E) Kerala at 5.30PM on the said date and also shouted slogans against the Accountant General (A&E) and his administration. By participating in the activities as aforesaid, the said Sri.A.Kunjuraman, Senior Auditor, showed lack of devotion to duty and violated clause (ii) of Sub rule 1 of Rule 3 of CCS (Conduct) Rules, 1964, which states that every Government servant shall at all times maintain devotion to duty.
ARTICLE II That the said Sri.A.Kunjuraman, while functioning in the aforesaid office and in the aforesaid capacity, participated in the activities as stated in Article I in connection with the service matter of another employee, which is violative of the provisions contained in clause (ii) of Rule 7 of CCS (Conduct) Rules 1964 which states that no Government Servant shall resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government Servant.
ARTICLE III That the said Sri.A.Kunjuraman, while functioning in the aforesaid office on the aforesaid date and time, blocked the passage of the Accountant General (A&E) Kerala, which resulted in his removal by the police from the office premises. By participating in the aforesaid activity, the said Sri.A.Kunjuraman, Senior Auditor acted in a manner unbecoming of a Government Servant violating clause (iii) of Sub Rule 1. of Rule 3 of CCS (Conduct) rules, 1964 which states that every Government Servant shall at all times do nothing which is unbecoming of a Government Servant. ARTICLE IV That the said Sri.A.Kunjuraman, while functioning in the aforesaid office and in the aforesaid capacity participated in the demonstration/ dharna held on 17/04/2007 at 10.40 AM in the office premises in connection with 'One Rank One Pension' issue. By participating in the demonstration held in the office premises on the aforesaid date and time, Sri. A. Kunjuraman, Senior Auditor failed to maintain devotion to duty and violated the provisions contained in clause (ii) of Sub Rule 1 of Rule 3 of CCS (Conduct) rules, 1964 which states that every Government Servant shall at all times maintain devotion to duty.
.
ARTICLE V That the said Sri.A.Kunjuraman, while functioning in the aforesaid office , and in the aforesaid capacity, participated in the demonstration/dharna held on 17/04/2007 in connection with the service matter of another employee. Thus he violated the provisions contained in clause (ii) of Rule 7 of CCS (Conduct) rules , 1964 which states that no Government Servant shall resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government Servant.
ARTICLE VI That the said Sri.A.Kunjuraman, while functioning in the aforesaid office in the aforesaid capacity, participated in the demonstration/dharna held on 17/04/2007 disobeying the instructions of the administration and giving false ons for availing casual leave, thereby acting in a manner unbecoming of a Government Servant violating clause (iii) of Sub Rule 1 of Rule 3 CCS (Conduct) rules, 1964 which states that every Government Servant shall at all times do nothing which is unbecoming of a Government Servant."
8. The Enquiry Officer gave his findings in regard to Articles of charges I to III as under :
" The Presenting Officer could not prove the presence of the charged official in the place of demonstration/agitation to substantiate the charges as per items (i) to (iii) above. xxxxxxxx xxxxxxxx xxxxxxx But as per the charge sheet, there is no allegation that the charged official had participated in any activities from 5.40 p.m. to 6.15 p.m. However, based on the letter dated 09.05.2007 (Exh.P2) submitted by the charged official, his participation in a peaceful demonstration after 5.30 p.m. on 12.01.2007 has been proved considering the preponderance of probability in this case. Hence the charges under Articles I, II & III to the extent of participation of the charged official in a peaceful demonstration after 5.30 p.m which resulted in his removal by the police have been proved."
(emphasis supplied)
9. The Enquiry Officer has given two findings in regard to charges I to III.
(i) the Presenting Officer could not substantiate the charges under Articles I to III; (ii) The very same charges to the extent of participation of the charged official in a peaceful demonstration after 5.30 p.m, which resulted in his removal by the police have been proved. The Enquiry Officer has already observed that there is no allegation that the charged official had participated in any activities from 5.40 p.m to 6.15 p.m. What is held as proved is participation in a peaceful demonstration after 5.30 p.m. The Disciplinary Authority has no hesitation to state that the applicant "has not breached the provisions contained in clause (ii) of Sub Rule 1 of Rule 3 of the CCS (Conduct) Rules". As held by both the Enquiry Officer and Disciplinary Authority, the first charge against the applicant is not proved. We find the same in order.
10. Charge of violation of clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964 under Article II, is held along with Article V as untenable as explained hereafter.
11. As regards Charge III, in the absence of a charge that the applicant had participated in any activities after office hours on 12.01.2007 which is unbecoming of a Government servant, the Disciplinary Authority and the Appellate Authority could not have held as per CCS (CCA) Rules that the applicant did any act unbecoming of a Government servant. Therefore, the imposition of a penalty on the applicant on a charge that was not raised against him is patently illegal. In 2006 SCC (L&S) 919, M.V. Bijlani vs. Union of India and Others, the Apex Court held as under :
"25. It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence yo prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
(emphasis supplied) In the instant case, the finding of the Enquiry Officer that the charged official had participated in a peaceful demonstration after 5.30 p.m which resulted in his removal by the police is not a misconduct alleged against the applicant in the charge sheet. The Apex Court held in AIR 1962 SC 1166, Rameshwar Prasad and Others vs. State of Bihar and Another, that a peaceful and orderly demonstration would fall within the freedom of speech.
12. The Enquiry Officer held that the charges as per Articles IV, V and VI of the Articles of charge as per Annexure-I of the charge sheet have been conclusively proved. The charges framed against the applicant as per Articles IV, V & VI are that (i) the charged official participated in the demonstration/dharna held on 17.04.2007 at 10.40 a.m. in the office premises in connection with 'One Rank One Pension' issue; (ii) the charged official deserted his work place, gave false reason for availing half day's casual leave on the forenoon of 17.04.2007 and participated in the demonstration/dharna held on 17.04.2007 disobeying the instructions of the Administration issued in circular dated 16.04.2007; Article IV pertains to violation of clause (ii) of Sub Rule (1) of Rule 3 of CCS (Conduct) Rules, 1964 which reads as under:
"3. General :
(1) Every Government servant shall at all times -
(i) ............
(ii) maintain devotion to duty "
The applicant had while on sanctioned leave, participated in the demonstration held on 17.09.2007 at 10.40 a.m. Participation in a demonstration in a service related matter while on sanctioned leave does not involve non-performance of duty or desertion of duty or obstruction to performance of duty by others. Therefore, the Enquiry Officer, the Disciplinary Authority and the Appellate Authority erred in not holding that the charge of not maintaining devotion to duty at all times does not stick to the applicant.
13. Article V of the Article of charges pertains to the alleged violation of clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964, which states that no Government servant shall resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant. Clause (ii) of Rule 7 of the CCS (Conduct) Rules, 1964, does not mention demonstration/dharna. It prohibits strike. As per New Oxford Advanced Learner's Dictionary, 'Demonstration' means a public meeting or march at which people show that they are protesting against or supporting somebody or something whereas 'Strike' means to refuse to work as a protest. Strike is cessation of work. What is prohibited in clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964 is cessation of work, not demonstration. What constitutes a 'strike' under Conduct Rules is explained in Government of India, MHA O.M. No. 25/23/66- Ests.(A) dated 09.12.1966 as under :
"(2) Interpretation of what constitutes a "strike" under the Conduct Rules - Rule 7 (ii) of the Central Civil Services (Conduct) Rules, 1964, provides that no Government servant shall resort to or in any way abet any form of strike in connection with any matter pertaining to his service or the service of any other Government servant. Instances have come to the notice of Government where employees resort to various methods of protests for redress of grievances, some of which are tantamount to strike. References have been received seeking clarification whether certain acts are covered under the definition of 'strike' and if so, whether action can be taken against such employees for violation of the Conduct Rules.
It is, therefore, clarified that 'strike' means refusal to work or stoppage or slowing down of work by a group of employees acting in combination and includes -
(i) mass abstention from work without permission (which is wrongly described as "mass casual leave");
(ii) refusal to work overtime where such overtime work is necessary in the public interest;
(iii) resort to practices or conduct which is likely to result in or results in the cessation or substantial retardation of work in any organization. Such practices would include, what are called, 'go-
slow', 'sit-down', 'pen-down', 'stay-in', 'token', 'sympathetic' or any other similar strike; as also absence from work for participation in a Bandh or any similar movements.
Government servants who resort to action of the above kind violate Rule 7 (ii) of the Central Civil Services (Conduct) Rules, 1964, and disciplinary action can be taken against them. It may be noted that the list of activities which are covered under the definition of strike as enumerated above is only illustrative and not exhaustive. It only clarifies the position in respect of practices which are often resorted to at present."
As the applicant has not refused to work and as he was on sanctioned leave, the Enquiry Officer, the Disciplinary Authority and the Appellate Authority are clearly wrong in holding that the applicant has violated Rule 7(ii) of the CCS (Conduct) Rules. Participation in a demonstration is not a misconduct in terms of the provisions of Rule &(ii). Instances of coercion or physical duress are not specifically stated in the charge sheet.
14. As regards the Charge VI, the applicant has admitted that by taking eligible leave, he had participated in the dharna held on 1.04.2007. He had given false reason for availing casual leave on the forenoon of 17.04.2007 to participate in the dharna. Therefore, the conclusion of the Enquiry Officer, Disciplinary Authority and Appellate Authority that the applicant had acted in a manner unbecoming of a Government servant violating clause (iii) of Sub Rule (1) of Rule 3 of CCS (Conduct) Rules, 1964 which states that every Government servant shall at all times do nothing which is unbecoming of a Government servant, is in order.
15. Out of nine charges, only one charge of participating in the dharna on 17.04.2007 while on casual leave, which was availed by giving false reason is proved beyond doubt. For the above misconduct, imposition of major penalty which though is in the lowest rung of major penalties enunciated under Rule 11 of the CCS (CCA) Rules, in our view, is shockingly disproportionate and discriminative especially when other employees who participated in the dharna on 17.04.2007 have been awarded a minor penalty. In the order at Annexure A-1, the disciplinary authority had after imposing the penalty of reduction to one lower stage under the aforesaid Rules, further ordered that 17.04.2007 and 01.06.2007 would be treated as "Dies-non" and shall not count for any purpose. On the forenoon of 17.04.2007, the applicant was on sanctioned leave. Further, 'Dies-non" is not a penalty listed in CCS (CCA) Rules, 1965, and therefore, it should not have found a place in the Annexure A-1 order.
16. In the result, we hereby quash and set aside the Annexure A-2 order dated 24.12.2008 and remand the case to the appellate authority, the second respondent, for reconsideration of the penalty imposed on the applicant within a period of three months from the date of receipt of a copy of this order.
17. The O.A. is allowed as above with no order as to costs.
(Dated, the 05th July, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.