Central Administrative Tribunal - Delhi
Surinder Singh vs The Secretary on 13 January, 2012
Central Administrative Tribunal
Principal Bench
OA NO. 128/2010
New Delhi this the 13th day of January, 2012
Honble Mr.G.George Paracken, Member (J)
Honble Dr. A.K.Mishra, Member (A)
Surinder Singh
S/o Shri Dalbir Singh
CDA (AF), R.K.Puram,
New Delhi-110070.
. Applicant
(By Advocate: Sh. E.J.Verghese)
Versus
1. The Secretary,
Ministry of Defence (Finance),
New Delhi-110001.
2. The CGDA
West Block V, R.K.Puram,
New Delhi-66.
3. The PCDA
HQRS, Hutments,
DHQ PO
New Delhi-110011.
.. Respondents
(Present: None)
O R D E R
Honble Shri George Paracken:
This is the second round of litigation by the applicant before this Tribunal. In the first round of litigation, the applicant challenged the Annexure A-16 order of the disciplinary authority dated 25.4.2003 imposing upon him the punishment of compulsory retirement from service w.e.f. 30.4.2003 and the Annexure A-17 order of the Appellate Authority dated 31.12.2003 rejecting his appeal dated 4.6.2003 and the reminder dated 8.9.2003, vide OA No.1169/2004 and the same was allowed by setting aside the aforesaid orders but with liberty to the respondents to proceed further in the matter in accordance with law, mainly on the following grounds:
(1) The officer who passed the order of punishment was not competent to pass the same, not being the disciplinary authority of the respondent.
(2) Though the inquiry officer had held that three charges were partly proved and two charges were not proved, the disciplinary authority disagreed with the same and held all the charges as proved, but before recording the disagreement no opportunity of making representation to the applicant was given.
(3) A copy of the second stage advice obtained from CVC was not given to the respondent.
2. The Honble High Court of Delhi, vide its judgment in WP (C) 3369-71/2006 dated 10.10.2007, upheld the aforesaid order of the Tribunal with certain modifications. Thereafter, in compliance of the aforesaid order/judgment, the applicant was reinstated in service and kept him under deemed suspension w.e.f. 1.5.2003 and further proceed against him which culminated in the impugned Annexure A-1 (colly.) order of the Disciplinary Authority dated 3.9.2008 once again imposing upon the punishment of compulsory retirement from service and the order of the Appellate Authority dated 2.7.2009 upholding the same by rejecting his appeal dated 25.11.2008.
3. Before we proceed further with this order, it is necessary to consider the basic facts of this case. The charge against the applicant was that he did not maintain absolute integrity and conducted himself in a manner unbecoming of a Government servant thereby attracting the provisions of Rule 3 (1) (i) of CCS (Conduct) Rules, 1964 on different counts and the five articles of charges framed against him were as under:
ARTICLE-I That the said Shri Surendra Singh, SA while functioning as SA in M section during the period 16.6.94 to 22.8.95 failed to discharge his duties effectively as provided for in Defence Audit Code & Defence Accounts Department Office Mannual Part-II Vol-I which led to processing of payment against 22 fraudulent claims to firms mentioned in Enclosure-I to the tune of Rs.19.47 lakhs approx. Thus the said Shri Surendra Singh, SA failed to maintain devotion to duty and conducted himself in a manner unbecoming of Govt. servant thereby violating the provisions of Rule 3(1)(ii) and 3(1)(iii) of CCS Conduct Rules 1964.
ARTICLE-II That during the aforesaid period while functioning in the aforesaid office the said Shri Surendra Singh, SA failed to detect that (i) the fraudulent claims have been floated against fake sanctions purported to have been issued by Ministry of Defence/DGOS that (ii) the contingent bills have not been preferred by officers of DGOS authorized to do so, and that (iii) the appropriate procurement procedure relevant to the value of the Store procured has not been followed. The said Shri Surendra Singh, SA also failed to ensure that budget allotment was available for effecting the procurement. Thus the said Shri Surendra Singh, SA failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant, thereby violating the provisions of Rule 3(1)(ii) and 3(1)(iii) of CCS Conduct Rules 1964.
ARTICLE-III That during the period and while functioning in the aforesaid office, the said Shri Surendra Singh, SA processed the payment of the 22 fraudulent claims to the tune of Rs.19.47 lakhs approx. as Senior Auditor in M Section, although the expenditure as per the fake sanctions was debitable to the Revene Head Ordnance Store, contrary to the functions of the M Section as prescribed in chapter VIII of OM Part XII read in conjunction with chapter VI of the Office Mannual Part-II Vol-I and without even getting the bills noted in Accounts Section as prescribed vide para 437 OM Part-II Vol-I. Thus the said Shri Surendra Singh, SA failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant thereby violating the provisions of Rule 3(1)(ii) and 3(1)(iii) of Central civil Service (Conduct) Rules 1964.
ARTICLE-IV That during the period and while functioning in the aforesaid office, the said Shri Surendra Singh, SA processed/payments against 22 fraudulent claims to the tune of Rs.19.47 lakhs approx. with undue haste and without reasonable care & caution. The bills were authorized for payment either on the same day or the next day of the receipt of the claims. Although even the fake sanctions attached with the fake bill stipulated procurement by following the prescribed procurement procedure yet the payment was made without ensuring that the prescribed procurement procedure had been followed. Thus the said Shri Surendra Singh, SA failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant thereby violating the provisions of Rule 3(1)(ii) and 3(1)(iii) of Central civil Serivce (Conduct) Rules 1964.
ARTICLE-V That during the period the said Shri Surendra Singh, SA while functioning in M section of this office during the period 16.6.94 to 22.8.95 processed 22 bills amounting to Rs.19.47 lakhs approximately. Though the concerned bills related to Store Contract Section, these were processed in M Section without obtaining orders of the appropriate authority and without following prescribed procedure. The above act of Shri Surendra Singh, SA resulted in fraudulent payment to the tune of Rs.19.47 Lakhs approx. to the alleged suppliers and caused pecuniary loss to the Govt. The above act indicates complicity with the alleged suppliers and also exhibits failure on the part of Shri Surendra Singh, SA to maintain absolute integrity. Thus the said Shri Surendra Singh, SA failed to maintain absolute integrity and conducted in a manner unbecoming of a Govt. servant thereby violating the provisions of Rule 3(1)(ii) and 3(1)(iii) of Central Civil Service (Conduct) Rules 1964.
4. The Inquiry Officer held that the Charges No.I to III have been proved partially and charge No.-IV and V have not been proved. The analysis of evidence and the conclusion of the said report was as under ANALYSIS OF EVIDENCE:
The prosecution has stated that the CO processed 22 bills at Ex.P/1/1 to P/1/22 amounting to Rs.19.47 lakhs approx. in M Section whereas these bills should have been processed in Store Section, which is a violation of the functions of M Section as prescribed in Chapter VIII of OM Pt. XII read in conjunction with Chapter VI of OM Pt. II Vol.I. This aspect has already been discussed in Article I & the charge against the CO has not been established.
The prosecution has also stated that there were other visible irregularities/inconsistencies in these bills as brought out in evidence for Art. II which were ignored by the CO. The prosecution continues that the CO himself has committed certain irregularities in processing the bills in question such as non-verification of specimen signature, not getting the bills routed through Accounts Section & Processing the bills in undue haste without following the prescribed procedure. Each of these aspects has been discussed in analysis of evidence in Article II. It has been concluded that the charge that the CO has not verified specimen signature is partially proved. On the charge of non-routing the bills through Accounts Section, the CO has been found lacking in discharge of his duties. The charge of processing the bills with undue haste without adopting prescribed procedure has not been proved. Hence, the charge of complicity of the CO with the alleged suppliers is not proved convincingly or beyond doubt and as a result the charge that Sh. Surender Singh, SA failed to maintain absolute integrity is also not proved.
CONCLUSION First part of the charge that Sh. Surrender Singh, SA while functioning in M Section processed 22 bills amounting to Rs.19.47 lakh approximately without obtaining orders of appropriate authority and without following prescribed procedure which caused loss to the Govt. is not proved.
The second part of the charge that the act of Shri Surender Singh, SA indicates complicity with the alleged suppliers and also exhibits failure on the part of Sh. Surender Singh, SA to maintain absolute integrity is not proved.
Hence the Article of charge is not proved.
11. SUMMARY OF CONCLUSIONS ARTICLE I Partially proved.
ARTICLE II Partially proved.
ARTICLE III Partially proved.
ARTICLE IV Not proved.
ARTICLE V Not proved.
5. The disciplinary authority, vide its Annexure A-16 order dated 25.4.2003, considering the totality of the case, gravity of misconduct and all other relevant records imposed the penalty of compulsory retirement from service upon the applicant. Applicant filed an appeal dated 4.6.2003 against the aforesaid order of the disciplinary authority but the same was dismissed vide Annexure A-17 order of the appellate authority dated 31.12.2003. The applicant challenged the aforesaid orders of the disciplinary authority and the Appellate Authority in their cases in OA-1169/2004. Another delinquent officer Sh. S.B.Sinha has calso challenged similar orders in his case in OA-915/2004. This Tribunal, vide order dated 21.7.2005 (Annexure A-18), clubbed both the aforesaid OAs held that the impugned orders cannot be sustained in law citing various grounds. The relevant part of the said order is reproduced as under:
11. On careful consideration of the rival contentions of the parties and perusal of the material on record, Rule 2(9) of the Rules ibid defines the authority empowered to make appointments to a post, which the government servant for the time being holding. The disciplinary authority has been defined under rule 2(g), which is competent the authority to impose penalty specified in rule 11 of the Rules ibid. The disciplinary authority has been defined in rule 12(3) of the Rules, according to which, the disciplinary authority is an appointing authority specified in the schedule or rules.
12. It is no more res integra that disciplinary authority has been defined in statutory rules framed vide SRO 43 on 7.3.3001 vide Notification by Govt. of India, Ministry of Defence (Finance) As per these rules, it is also no more res integra that while working in the office of Deputy Controller General of Defence Accounts (Administration ) holder of Group C post, the competent authority to impose penalty under rule 11 of the Rules ibid is the Deputy Controller General of Defence Accounts.
13. The interpretation of the respondents that a decision taken to initiate disciplinary proceedings against the applications was that the Memorandum issued to them pertained to the period of 1998 when the applicants were posted in the office of Principal Controller of Defence Accounts. As such, the applicants would be judged with reference to that date and there is no illegality in imposition of punishment by Principal Controller of Defence Accounts. This has been justified as per the provisions of Rule 13(2) according to which a disciplinary authority is one who is by a general and special order of the President is empowered to institute proceedings and impose punishment under rule 11 of the Rules ibid.
14. Apex Court in State of Tripura & Ors. Vs. Priyabandhu Chakroborty, 1997(11) SCC 405, while dealing with the issue of competence of appointing authority and when conflicted with the disciplinary proceedings which were initiated by and other authority when Superintendent of Police was entrusted with the power after 10.3.1982 through a notification the Apex Court ruled that though charge sheet was issued by the Superintendent of Police the proceedings would have to be treated as the proceedings pending o the date of notification dated 10.3.1982 and had to be dealt with if such proceedings under the regulation adopted by notification dated 10.3.1982 and the following observations have been made.
6. In view of the aforesaid provisions contained in clause (o) of Regulation 861, as substituted by notification dated 17.2.1968, the Superintendent of Police was competent to initiate proceedings against the Superintendent of Police on 11.5.1981 was in accordance with the powers that were conferred on the Superintendent of Police under notification dated 17.2.1968. Since the proceedings were properly initiated by the Superintendent of Police, the said proceedings should be treated as proceedings pending on the date of issue of notification dated 10.3.1982 and by virtue of clause 3 of the said notification the said proceedings had to be dealt with as if such proceedings were the proceedings under the regulations adopted by the notification dated 10.03.1982. Since the Superintendent of Police had been conferred disciplinary powers in respect of Constables under the notifications dated 10.3.1982, he was competent to pass the order dated 27.4.1982. In these circumstances, we are unable to uphold the judgment of the High Court taking the view that the Superintendent of Police was not competent to punish the respondent. The said order of dismissal must, therefore, be upheld and, for the same reason, the order dated 11.8.1982 passed by the appellate authority must also be upheld.
15. If one has regard to the above, both the applicants were posted with the Principal Controller of Defence Accounts at the time when proceedings were initiated the authority competent to act as a disciplinary authority being the appointing authority would be which, as per SRO 43, is competent to impose punishment and as per powers delegated by the President through SRO 43. At the time of imposition of punishment on both the applicants, they were undisputedly posted in the General Controller of Defence Accounts (Admn.) with the Deputy Controller. As such, that authority is the competent authority to impose punishment. The statutory rules, which had been adopted under Rule 13 and 11 of the rules ibid, cannot be over-ridden and have to be strictly complied with. Merely because the applicants, at one point of time, were posted elsewhere, the status of disciplinary authority has to be viewed in the context of and at the time of issuance of the final order.
16. It is trite law that even if the incompetent authority issues a charge-sheet yet would not vitiate the enquiry after the punishment order is passed by the incompetent authority and upheld in Inspector General of Police vs. Thavasiappan, 1996 (2) SSC 145.
17. In this view of the matter and that no case law produced by the respondents to the contrary at the relevant time when it has been decided to impose punishment upon the applicants, they wee posted in the office of Deputy Controller General of Defence Accounts (Administration) and as such only Deputy Controller of Defence Accounts, who was the competent disciplinary authority being the appointing authority of the applicants authorized to act under Rule 11 of the Rules ibid, the punishment imposed by an authority suboridiante to the appointing authority not only vitiates statutory rules, SRO 43 but is an infraction to Article 311 of the Constitution of India and the orders passed cannot be sustained in law.
18. Another infirmity, which vitiates the proceedings, is non-furnishing of second stage CVC advice to the applicants.
19. The Apex Court in State Bank of India vs. D.C.Aggarwal (supra), observed as under:-
5. Reliance was placed on sub-rule (5) of Rule 50 which reads as under:
(5) Orders made by the Disciplinary Authority or the Appointing Authority as the case may be under sub-rules(3) & (4) shall be communicated to the employee concerned, who shall also be supplied with a copy of the report of inquiry, if any. It was urged that copy of the inquiry report having been supplied to the respondent the rule was complied with and the High Court committed an error in coming to conclusion that principles of natural justice was violated. Learned Additional Solicitor General urged that the principle of natural justice having been incorporated and the same hainv been observed the Court was not justified in misinterpreting the rule. The learned counsel urged that the Bank was very fair to the respondent and the disciplinary authority after application of mind and careful analysis of the material on record on its own evaluation, uninfluenced by the CVC recommendation passed the order. It was emphasized that if the exercise would have been mechanical the disciplinary authority would not have disagreed with CVC recommendations on punishment. Learned counsel submitted that, in any case, the disciplinary authority having passed detailed order discussing every material on record and the respondent hainv filed appeal there was no prejudice cause to him. None of these submissions are of any help. The order is vitiated not because of mechanical exercise of powers or for non-supplying document is to contest its veracity or give explanation. Effect of non-supply of the enquiry report but for relying and acting on material, which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and contrary to fair and just inquiry. From the letter produced by the respondent, the authenticity of which has been verified by the learned Additional Solicitor General, it appears the Bnak turned down the request of the respondents for a copy of CVC recommendation as The Correspondence with the Central Vigilance Commission is a privileged communication and cannot be forwarded as the order passed by the appointing authority deals with the recommendation of the CVC which is considered sufficient. Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the disciplinary authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the findings of guilt are same as in the CVC report but it being a material obtained behind back of the respondents without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order. Non-supplying of the Vigilance report was one of the grounds taken in appeal. But that was no because the respondent prior to service of the order passed by the disciplinary authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned Additional Solicitor General that CVC recommendations are confidential, copy of which could not be initiation of proceedings are different than CVC recommendations are confidential, copy of which could not be initiation of proceedings are different than CVC recommendation which was the basis of the order passed by the disciplinary authority.
20. Moreover, CVC Circular No.99/Vigil/66 dated 28.9.2000, which has been incorporated as a mandatory compliance under rule 15 of the CCS(CCA) Rules ibid vide a government decision provides as under :-
(B) Advice of CVC also to be furnished Para 3.6 (iii), Chapter XI and para. 8.6, Chapter XII of the Vigilance Manual, Vol.I, provide that the advice tendered by the Central Vigilance Commission is of a confidential nature meant to assist the Disciplinary Authority and should not be shown to the concerned employee. It also mentions that the Central Vigilance Commission tenders its advice in confidence and its advice is a privileged communication and, therefore, no reference to the advice tendered by the Commission should be made any formal order.
2. The Commission has reviewed the above instructions in view of its policy that there should be transparency in all matters, as far as possible. The Commission has observed that the Honble Supreme Court had held a view in case State Bank of India vs. D.C. Aggarwal and another (date of Judgment 13.10.1992) that non-supply of CVCs instructions, which was prepared behind the back of respondent without his participation, and one does not know on what material, which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. Further, the Honble High Court of Karnataka at Bangalore, in Writ Petition No.6558/93, has also observed that if a copy of the report (CVCs advice) was furnished to the Delinquent Officer, he would have been in a position to demonstrate before the Disciplinary Authority either to drop the proceedings or to impose lesser punishment instead of following blindly the directions in the CVCs report.
3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e., first stage advice is obtained on the investigation report before issue of the charge-sheet, and second stage advice is obtained either on receipt of reply to the charge-sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the representation of the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings again him. Therefore, a copy of the Commissions first stage advice may be made available to the concerned employee along with a copy of the charger-sheet served upon him for his information. However, when the CVCs second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IOs report to give him an opportunity to make representation against IOs findings and the CVCs advice, if he desires to do so.
In view of the position stated above, Para. 3.6 (iii) Chapter XI and para.8.6., Chapter XII of the Vigilance Manual, Vol.I and also Para.2 of the Commissions letter No.6/3/73-R, dated 20.8.1973 may be treated as deleted.
Para 12.4.4 of Special Chapter on Vigilance Management in Public Sector Banks and para 22.6.4 of the Special Chapter on Vigilance Management in Public Sector Enterprises envisage that the inquiring authorities, including CDIs borne on the strength of the Commission, would submit their reports to the Disciplinary Authority who would then forward the IOs report, along with its own tentative views to the Commission for its second stage advice. The existing procedure in this regard may broadly continue. The Disciplinary Authority may, after examination of the inquiry report, communicate its tentative views to the commission. The Commission would thereafter communicate its advice. This, along with the Disciplinary Authoritys views, may be made available to the concerned employee. On receiving his representation, if any, the Disciplinary Authority may impose a penalty in accordance with the Commissions advice or if it feels that the employees representation warrants consideration, forward the same, along with the records of the case, to the Commission for its reconsideration.
6. That, if on the receipt of the employees representation, the concerned Administrative Authority proposes to accept the CVCs advice, it may issue the orders accordingly. But it the Administrative Authority comes to the conclusion that the representation of the concerned employee necessitates reconsideration of the Commissions advice, the matter would be referred to the Commission.
21. In this light of the decision of D.C.Aggarwals case (supra) and the decision of the Division Bench of this Tribunal in OA No.3019/03 decided on 16.7.2004 in Girish Trivedi vs. Union of India & Ors., we are of the considered view that a prejudice has been caused to the applicants by non-supply of second stage of CVC advice which was mandatory to be served. Whereas the disciplinary authority took a view to impose punishment of dismissal yet CVC advice as per the reply of the respondents recommended for a major penalty. Non-furnishing of the second stage advice has precluded the applicants to call upon the disciplinary authority to impose other lesser punishment as a major penalty than compulsory retirement. This has vitiated the enquiry.
22. Enquiry is also vitiated in the light of final view taken by the disciplinary authority on disagreement whereas the trite law is that nothing precludes the disciplinary authority to take a tentative view and after accord of reasonable opportunity to the delinquent to take a final decision whereas the disagreement notes in both cases show that whatever has not been fully proved and disproved by the enquiry officer, the disciplinary authority considered the charge proved and thereafter accorded an opportunity to comment to the applicants. Thus, in our considered view, is a pre-determination of the issue and taking final stock of the matter and show cause notice is mere formality and a post decisional hearing. The observation of the Apex Court in Yoginath D. Bagdes case (Supra) is relevant to be highlighted, which is as under:
39. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges leveled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to prove, at this stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the Disciplinary Authority that the findings already recorded by the Enquiry Officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.
40.The Disciplinary Committee consisted of five Senior most Judges of the High Court which also included the Chief Justice. The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal for service. In the above view of the matter, punishments cannot be sustained in law. Leaving other grounds open, these OAs are allowed. Impugned orders are set aside. Respondents are directed to reinstate the applicants in service forthwith. However, if so advised, they are at liberty to proceed further in accordance with law. No costs.
6. The respondents challenged the aforesaid order of the Tribunal in the case of the applicant before the Honble High Court of Delhi in WPC No.3369-71/2006 and the High Court, vide its Annexure A-19 judgment dated 10.10.2007 disposed of the same with certain modifications. The High Court agreed with the findings of the Tribunal that the disagreement note furnished by the disciplinary authority to the applicant was not tentative in nature and relying upon the judgment of the Apex Court in Yoginath D.Bagde vs. State of Maharashtra, JT 1990 (6) SC 62 it was held that such punishment imposed upon the applicant was not sustainable. However, relying upon the judgment of Managing Director, ECIL Vs. B.Karunkaran, (1993) 4 SCC 727, the High Court held that after reinstating the applicant in service, he may be placed under suspension and continue the enquiry from the stage of furnishing the disagreement note. The High Court has also held that the question whether the employee would be entitled to back wages and other benefits from the date of his dismissal till the date of his reinstatement, if ultimately ordered, has to be decided by the petitioner according to law after culmination of the proceedings and depending upon the final outcome.
7. In compliance of the aforesaid judgment of the High Court, the respondents furnished a copy of the enquiry report and the CVCs second stage advice dated 24.1.2003. The tentative reasons for disagreement with the report of the enquiry officer was also furnished to him for enabling him to make representations/submissions.
8. According to the Inquiry Officer, the first charge was only partially proved as there was already a decision by the CDS (HQrs) to deal with LP Bills in M Section. The Disciplinary Authority did not agree with the said findings and held that the decision of the CDA was without specific approval of the competent authority. The concerned AOs/AAOs have also been charge sheeted for the same misconduct. According to the Inquiry Officer, the second charge was also only partially proved as the prosecution has not provided any evidence or basis as to how the CO could have been aware about the pattern of genuine sanctions. The prosecution has also not provided any evidence that the signatures were not there at all in the list of specimen signatures or the signatures did not differ completely or significantly from the specimen signatures. According to the Disciplinary Authority, the authenticity of sanction is to be verified with reference to the verification of the signature of the sanctioning authority held on record and if not, by calling for the specimen signatures duly certified but the same was not done by the CO. According to the Inquiry Officer, the third charge was only partially proved for the following reasons:
a) there are evidence which points to the existence of instructions from Competent authority to deal with the local purchase bills in M section.
b) Chapter III Accounts section OM Part-II Vol-I does not specify that the Accounts section should stamp the bills after endorsing on the bills. If any local procedure/practice was adopted for the purpose, no evidence has been provided for.
9. But according to the Disciplinary Authority, not putting the stamp/no endorsement on the bills would mean not noting the bills in Accounts section for proper control of budget and the IO has held at page 22 of his report that the bills were passed without even getting them noted in Accounts Section as verified vide par 437 OM Part II Vol.I. According to the Enquiry Officer, Article IV has not been charged but according to the Disciplinary Authority the examples given by the prosecution are sufficient to prove the charge and since proper prescribed checks were not carried out, it is evident that the bills were processed in haste. According to the Inquiry Officer, Article V has not been proved but the Disciplinary Authority held that the since sanctions were fake, audit procedures were not followed, fraudulent payments took place, it indicates nothing but complicity on the part of CO with the suppliers. The IO has also mentioned that this charge is not proved convincingly or beyond doubt. However, the Disciplinary Authority held that the departmental proceedings are based on preponderance of probability.
10. The applicant made the Annexure A-21 representation dated 9.7.2008 against the enquiry officers report as well as the tentative disagreement note of the disciplinary authority and requested him to exonerate him of the charges. However, the disciplinary authority after having gone through the aforesaid representation of the applicant, vide its Annexure A-1 order dated 3.9.2008, imposed the punishment of compulsory retirement from service w.e.f. 4.9.2008 upon the applicant. The appellate authority has also dismissed his appeal dated 25.11.2008 vide its order dated 2.7.2009 upholding the orders of the disciplinary authority.
11. The applicant has challenged the aforesaid impugned orders in this OA on the ground that all the charges against him except the charge No.IV were identical in form and substance and linguistically facsimile to the charges of his supervising officers, namely, AAO & AO, forgetting the fact that the duties and responsibilities of each and every functionary of the department as enumerated in the departmental Manuals are distinctively different from each other. He has, therefore, contended that the charge was framed against him in a mechanical manner without application of mind. His other contention was that the same charges levelled against Sh. T.P.Venugopal and Sh. H.C.Gulati have already been set aside by this Tribunal and the writ petition and SLP filed by the applicants have already been dismissed by the High Court and the Supreme Court of India respectively. His further contention is that the charges levelled against him were the same set of charges framed by the CBI before the special court and the same has already been set aside by the CBI Court and he has been acquitted of all charges by a detailed judgment at the time of framing of charges. The appeal filed against the said judgment of the CBI Court was also dismissed by the Honble High Court and thereby it has attained finality (Annexure A-21).
12. The learned counsel for the applicant has also submitted that the enquiry report and the impugned orders of the disciplinary authority and the appellate authority are liable to be quashed as the first stage CVC report has never been supplied to him. According to him, he was kept in dark with regard to the said reference to the Vigilance Commission and the respondents were pre-determined to punish him despite the findings of the enquiry officer. He has also contended that the appellate authority failed to look into the findings of the enquiry officer and his analysis of evidence on record which are in violation of statutory provisions contained in Rule 14 (4) 15 (4) of CCS (CCA) Rules, which provides as under:
14 (4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. 15 (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government Servant any opportunity of making representation on the penalty proposed to be imposed :
Provided that in every case where it is necessary to consult the commission, the record of the inquiry shall be forwarded by the disciplinary authority to the commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government Servant.
13. However, in the present case, it was the appellate authority who was controlling the entire departmental proceedings by referring the matter to the CVC, directing the Disciplinary Authority and issuing instructions to him sitting at his back thus undermining the status of the Disciplinary Authority. According to the learned counsel, the Appellate Authority has already decided to punish the applicant with a major penalty. In this regard, the learned counsel for applicant has relied upon the judgment of the Apex Court in the case of M.S.Bindra vs. Union of India, AIR 1998 SC 3058, wherein it has been held as under:
Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.
14. Another submission of the learned counsel for applicant is that the punishment of compulsory retirement imposed upon the applicant is disproportionate to the gravity of the misconduct proved against him. In this regard, he has relied upon the judgment of Apex Court in Harish M.Mankodi vs. State of Gurjarat, (2003) 1 SLR 484 wherein it was held as under:
the punishment of compulsory retirement is not commensurate with the offence and disproportionate in nature. Procedural mistake is tantamount to negligence and not misconduct. Misconduct presupposes deliberate conscious, and mala fide intention. None of these are applicable in the present case. In the absence of misconduct the penalty imposed is disproportionate.
15. Further, learned counsel has submitted that the charges against the applicant and Sh. T.P.Venugopalan were identical. The charge against Sh. T.P.Venugopalan were as under:-
ARTICLE-I- That the said Shri T.P.Venugopalan, Sr. A.O. while functioning as Sr.A.O. In-charge M Section During the period 1.1.96 to 29.10.97 in the office of CDA (Hqrs.) New Delhi failed to discharge his duties effectively as provided for in Appendix-I to Defence Accounts Department Office Manual Part-I to Defence Accounts Department Office Manual Part-I which led to authorization of payment against 10 fraudulent claims to Shri Venkateshwara Enterprises to the tune of Rs. 2.23 Crores approximately. Thus the said Shri T.P.Venugopalan, Sr. A.O. failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant and failed to take all possible steps to ensure the integrity and devotion to duty of all Govt. servants for the time being under his control and authority, thereby violating the provisions of Rule 3 (1)(ii), 3 (1) (iii) and 3 (2) (i) of CCS (Conduct) Rules, 1964.
ARTICLE-II- That during the aforesaid period and while functioning in the aforesaid office the said Shri T.P.Venugopalan failed to detect that (i) the fraudulent claims have been floated again fake sanctions purported to have been issued by Ministry of Defence, that (ii) the contingent bill have not been preferred by the officers of DGOS authorized to do so, and that (iii) the appropriate procurement procedure relevant to the value of the stores procured has not been followed. The said Shri T.P. Venugopalan, Sr. A.O. also failed to ensure that budget allotment was available for effecting the procurement. Thus, the said Shri T.P.Venugopalan, Sr. A.O. failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant and failed in the performance of his official duties in the exercise of powers conferred on him except when he is acting under the directions of this official superior, thereby violating the provisions of Rule 3 (1)(ii), 3 (1) (iii) and 3 (2) (ii) of CCS (Conduct) Rules, 1964.
ARTICLE-III- That during the period and while functioning in the aforesaid office, the said Shri I.P. Venugopalan, SAO authorized the payments of the 10 fraudulent claims to the tune of Rs. 2.23 Crores approximately as office in-charge M Section, although the expenditure as per the fake sanctions was dubitable to the Revenue Head Ordnance Stores, contrary to the functions of M Section as prescribed in Chapter VIII of OM Part-XII and without even getting the local purchase bills noted in Accounts Section, as prescribed vide Para 437 of OM Part-II Vol.I. Thus, the said Shri T.P.Venugopalan, Sr. A.O. failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant and failed to take all possible steps to ensure the integrity and devotion to duty of all Govt. servants for the time being under his control and authority, thereby violating the provisions of Rule 3 (1)(ii), 3 (1) (iii) and 3 (2) (i) of CCS (Conduct) Rules, 1964.
ARTICLE-IV- That during the aforesaid period and while function in the aforesaid office, the said Shri T.P.Venugopalan, SAO authorized payment s against 10 fraudulent claims to the tune of Rs. 2.23. Crores approximately with undue haste, without reasonable care and caution. The bills were authorized for payment either on the same day or the next day of the receipt of the claim. The said Shri T.P.Venugopalan did get a doubt about the need for following TPC procedure while processing one of the fraudulent claims but he promptly settled his own query on the grounds that Government sanctions in support of procurement did exist, (the sanction purported to have been issued by the Govt. was not found attached with the relevant vouchers ) although even the similar fake sanctions attached with other fake bills stipulated procurement by following the prescribed procurement procedure. Thus, the said Shri T.P.Venugopalan, Sr. A.O. failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Govt. servant and failed in the performance of his official duties in the exercise of powers conferred on him except when he is acting under the directions of this official superior, thereby violating the provisions of Rule 3 (1)(ii), 3 (1) (iii) and 3 (2) (ii) of CCS (Conduct) Rules, 1964.
16. In the case of T.P.Venugopalan (supra) who are proceeded under the same and identical set of charges was allowed by this Tribunal vide order dated 10.4.2006 in OA-110/2005. The said judgment has been challenged before the Apex Court but the same was also dismissed on 9.7.2009. While allowing the case of T.P.Venugopalan (supra), the Tribunal has held as under:
8. What has happened in the present case? While in the charge served on the applicant there was no reference of any dereliction with respect to Rule 3 (1) (i) of CCS (Conduct) Rules but the UPSC found him guilty with respect to the same namely that the applicant failed to maintain absolute integrity. In the absence of any charge having been so served, the applicant is justified in claiming that he is prejudiced because with respect to the same, no chargesheet was issued not he contested the matter thereto. In the impugned order as already referred to above, the advice of the UPSC which has been consulted, has been highlighted. The same has been accepted. Therefore it is obvious that extraneous consideration has weighed with the authorities in this regard.
9. The disciplinary authority is necessarily expected to act fairly and punishment can only be awarded in terms of the chargesheet. Something which is not there, if considered, would be extraneous to the charge and will not withstand judicial scrutiny.
10. Learned counsel for the respondents has pointed to Annexure R-7 and on basis of the same recommended that on 12.8.2002 the UPSC had corrected the said mistake and that in fact it is a typographical mistake that rule 3(1)(i) of the Conduct Rules has been mentioned. The letter has been issued after the impugned order has been passed. Therefore it is of little consequence because it was too late to correct the mistake for purposes of the present application.
11. Confronted with that position, learned counsel for the respondents urged that in any case it had not influenced the advice of the UPSC. Here also, we find that it is difficult to accept the plea. In para 4.4.2 the UPSC has advised:
4.4.2 The IO has held that the fraudulent bills were cleared on the same day or next date while evidence shows that other contingent bills were kept pending. Only fraudulent bills were processed, doubt settled with the help of unauthorized source and payment authorized with speed and enthusiasm. He held the charge as established. And once again in paragraph 5 which has already been reproduced above, it has been opined that the applicant was guilty of violating rule 3 (1)(i) of the Conduct Rules.
12. Perusal of paragraph 4.4.2 referred to above, clearly indicates that the advice was that the fraudulent bills were processed, doubt was settled with the help of unauthorized source and payment was made speed and enthusiasm. This clearly refers to something which is connected with maintaining absolute integrity also. Therefore the said plea that it has not influenced the UPSC while giving the advice, must be rejected.
13. Once extraneous consideration had crept in. We have no hesitation in holding that the impugned order cannot be sustained because on basis of the same, the disciplinary authority had passed the order. It could be same punishment or lesser punishment regarding which we are not expressing any opinion.
14. For these reasons, the application is allowed. The impugned order (Annexure A-10) is quashed. The disciplinary authority may pick up the loose threads and if so advised, pass a fresh order since violation of rule 3 (1)(i) of the Conduct Rules is not a part of the charge. It may pass any other order with respect to other charges stated to have been proved. We make it clear that no opinion is being expressed with respect to other pleas of the applicant.
17. The High Court considered the aforesaid order of this Tribunal vide writ petition No.12759-61/2006 and vide its judgment dated 6.11.2007 upheld this Tribunals order and the relevant part of the said judgment is as under:
10. From the reading of Memorandum of Charges and the report it is clear that respondent has nowhere been charged categorically with the grave misconduct or grave negligence, but only with violation of provisions of Rules 3(1) and Rule 3(2) of CCS (Conduct) Rules, 1964. It is worth mentioning here that petitioner has failed to point out whether it was a part of the duty of the Senior Accounts Officer to verify the genuineness of the firm and any established procedure in this regard, especially when during the course of arguments, learned Counsel for the petitioner conceded that the signatures on the impugned bills did match with the specimen signatures furnished by the department. The enquiry was with regard to the firms being fictitious. She further conceded that the signatures were referred to be as fictitious because the firms in whose names the bills were raised were fake. Learned Counsel for the petitioner did make an effort to emphasise that respondent should have known that the specimen signatures sent to him were not fake signatures as the signatures did not differ from the specimen signatures, which were earlier on record. It is possible, under the circumstances, that only exceptionally an alert officer who has a photogenic memory, may remember the special characteristics of specimen signatures and when another set of specimen signatures are sent to him he may or may not remember striking similarity or dissimilarity. Therefore, this cannot be taken as a grave negligence or grave misconduct on his part.
11. In Union of India and Ors. v. J.Ahmed, AIR 1979 SC 1022 where the officer was not very efficient officer and some negligence was attributed to him and some lack of qualities expected of an officer of his rank were listed as charges, and the officer was held liable to incur penalty under Rule 3, it was observed:
9. ...Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the Rules. It was further observed:
...The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times Page 3077 maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty. Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If Rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general Rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
12. While interpreting what generally constitutes misconduct especially in the context of disciplinary proceedings entailing penalty, it was observed that code of conduct as set out in the conduct rules makes it clear that the lapse in performance expected of a government servant in the context of the conduct may not amount to misconduct. However, if a person conducts himself inconsistently while discharging his due and faithful duty, he is said to have committed misconduct. It was observed:
...There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence.
13. In D.V.Kapoor v. Union of India and Ors. while interpreting "grave misconduct" or "negligence" within the meaning of Rule 8(5)(2) and 9 of the CCS Pension Rules, it was observed:
5. It is seen that the President has reserved to himself the right to withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the deliquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuinity with which misconduct or irregularity was committed.
14. CCS Pension Rules give statutory right to an employee to pension on his reaching the age of superannuation. Therefore, the steps which may be taken for deprivation of pension to an employee must be correlative to or commensurate with the gravity of grave misconduct or irregularities as it deprives the right of the employee to have financial assistance on the evening of his life as is assured to him under Article 14 of the Constitution. In the present case the signatures on the bills passed by the respondent are not in dispute. It is the bills which happened to be in the fake name of the firms which became bone of contention resulting in the respondent facing enquiry under Rule 14 of the CCS (CCA) Rules. As pointed out above the counsel did admit that the signatures of the person who had signed the bills tallied with the specimen signatures which were sent to respondent by concerned officer for comparison and which were otherwise available on record earlier. The respondent cannot be considered to be an expert in comparing the signatures but with the experience he must have learnt to compare disputed signatures with the specimen signatures. With the memory which he might have at that time he compared the signatures on the bills with the specimen signatures which were already with him on the record. Simply because he failed to compare the signatures properly cannot be said to be a gross negligent act on his part. The counsel for the petitioner could not reply the query put by the Court whether it was the duty of the respondent to verify the genuineness of the firms and if so, was there any established procedure in this regard. Counsel failed to point out any such procedure.
15. The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted Page 3079 himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him.
16. It is not disputed by the respondent that the 10 impugned bills which he passed did not fall within the Miscellaneous Section to which he belonged. However, it has been pointed out by the respondent that sanctions were not from I & BC Section but from the Government of India, Ministry of defense, therefore, the responsibility for non-process of the case or non-grant of sanction of the bills from B&FC Section lays with the Ministry. Since the Ministry had granted financial sanction, the fact that the initiating department was I&BC and not the procurement department under the circumstances has no consequence. While finding respondent guilty of article of charge No. 3, it was observed by the Enquiry Officer that there has been irregularities and deviations without personal written approval of CDA in the past which were being followed by the COs. It was alleged that CO could not unilaterally decide to continue past irregularities without personal written approval of the CDA and this became the ground for holding him responsible for failing to maintain devotion to duty and conducting himself in a manner unbecoming of a Government servant. Since respondent followed the established procedure which was being followed over the years where bills from other sections were also being processed and payments made thereof, the Enquiry Officer though found the charge proved, did not hold that respondent had gravely misconducted himself and also committed gross negligence in passing the bills.
17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming a Government Servant has not recorded reasons as well as the findings as to commission of grave misconduct or grave negligence by the respondent. We also find that in the Memorandum issued to the respondent under Rule 14 of the CCS(CCA) Rules, 1965, petitioner has not levelled any such allegations against the respondent of having committed himself in such a manner so as to constitute grave misconduct or grave negligence and to invite penalty under Rule 3 of the CCS(CCA) Rules.
18. Hence, we find no illegality or infirmity in the order of Tribunal. The present writ petition being without any merits is hereby dismissed.
18. The learned counsel for the applicant has also relied upon the judgment of Apex Court in G.M.Tank vs. State of Gujarat and anr., JT 2006 (11) SC 36, wherein it was held when the facts and evidence in the departmental and the criminal proceedings were the same and if the accused succeeded in the criminal case, he should succeed in the departmental proceedings also. The relevant part of the said judgment is as under:
29. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
30. In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8.2.1979 and got subsistence allowance of Rs.700/- p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant has put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February, 1986. On the basis of the same charges and the evidence, the Department passed an order of dismissal on 21.10.1982 whereas the Criminal Court acquitted him on 30.1.2002. However, as the Criminal Court acquitted the appellant on 30.1.2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30.1.2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension .
19. This Tribunal further affirmed the same legal position in the order dated 13.4.2009 in OA-1675/2008, H.L.Gulati vs. Union of India and others. The relevant part of the said order is as under:
3. Basically, the allegations against the applicant are with regard to authorization of 36 fraudulent claims, non-following of the procedure by floating against fake sanctions, non-noting of purchase bills in the accounts section and non-following of the procedure, which have been viewed against him as failure in maintaining absolutely integrity and conducting in a manner unbecoming of a government servant. Enquiry officer, on analyzing the evidence, though marginally proved Article-I, partially proved Articles II & III, but Article-IV was not proved. Maintenance of absolute integrity has also not been proved. However, a technical lapse of non-following of the procedure, in nutshell, is the charge established against him. Enquiry Officer, nowhere in the enquiry report, has recorded any finding with reasons that the applicant has either committed a grave misconduct or a grave negligence. The aforesaid finding was agreed upon by the disciplinary authority and the matter had been referred to Union Public Service Commission for consultation and advice. Recording a finding of grave misconduct on its own, which was not recorded in the enquiry report, the president, vide order dated 30.11.2005, satisfied that the charges established against the applicant constituted a grave misconduct and imposed the penalty. The aforesaid order, when challenged before the President in review, the penalty was upheld by an order dated 01.08.2007.
4. Learned counsel for the applicant though taken several legal pleas yet, while referring to the decision of this Tribunal in OA No. 110/2005 in T.P. Venugopalanan v. Union of India & Ors., decided on 10.04.2006, stated that though post retiral penalty could be imposed by a presidential order under Rule 9(1) of Pension Rules, but the condition precedent is that there must be a finding either of a grave misconduct or a grave negligence in the enquiry report, which culminates at the stage of enquiry report. As no such finding has been recorded by the enquiry officer, therefore, imposition of punishment is without jurisdiction. The decision of Venugopalans case (supra), when carried by the Government before the High Court of Delhi in WP No.12759-61/2006, an order passed on 06.11.2007 upheld the finding of the Tribunal and reiterated the law. Applicant states that his case is covered by the decision of the Tribunal and the High Court (supra).
5. On the other hand, learned counsel for the respondents vehemently opposed the contentions raised by the applicants counsel and stated that a finding of grave misconduct and grave negligence is not to be recorded specifically, but to be inferred in its entirety of the charges established against the applicant. Learned counsel contends that the charge of the applicant of passing fictitious bills itself amounts to grave misconduct and, while referring to the CCS (Conduct) Rules, stated that act and conduct of a government servant, which is pre-judicial to the interest of government, is a grave misconduct. Learned counsel would also contend that the applicant, having failed to verify the specimen signatures, has acted negligently which is grave with culpable damage i.e. loss to the government and, as such, penalty imposed upon him does not suffer from any legal infirmity. He would further contend that the decision in Venugopalans case (supra), when carried before the Apex Court in SLP (CC 8065-8067/2008), by an order passed on 08.07.2008 Apex Court dismissed the SLP, which has an effect of attainment of finality of the decision in Venugopalans case (supra).
6. We have heard learned counsel for the parties and with their assistance examined the records of the case.
7. In Venugopalans case, a Senior Accounts Officer, who had been proceeded against, where a similar penalty had been imposed, the decision of the Apex Court in D.V. Kapoor v. Union of India, AIR 1990 (SC) 1923, was relied upon wherein it is ruled that exercise of powers under Rule 9(1) is hedged with a condition precedent that there must be a finding the enquiry report that the pensioner has committed any grave negligence or grave misconduct in discharge of his duties. As no such finding had been recorded in the enquiry report, the penalty was set aside. High Court of Delhi, while discussing the above, recorded as under:-
15. The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him.
... ...
17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming a Government Servant has not recorded reasons as well as the findings as to commission of grave misconduct or grave negligence by the respondent. We also find that in the Memorandum issued to the respondent under Rule 14 of the CCS (CCA) Rules, 1965, petitioner has not leveled any such allegations against the respondent of having committed himself in such a manner so as to constitute grave misconduct or grave negligence and to invite penalty under Rule 3 of the CCS (CCA) Rules.
8. Having regard to the above, on perusal of the enquiry report, we find that the charges of integrity, unbecoming of government servant and other severe charges have not been established. It is also not established that the act of the applicant is such which has led to loss to the government. However, what has been held proved against the applicant is only with regard to procedural irregularities without any culpability. Against the charge of non-following of the rules on a few instances, past practice has been followed and no finding either of grave misconduct or grave negligence has been recorded in the enquiry report.
9. In view of the facts and circumstances of the case and from scanning of the enquiry report, we are of the considered view that the condition precedent for recording of such a finding in the enquiry proceedings has not been fulfilled. It is only the President who has recorded such a finding on its own, but the Rule 9(1) stipulates that such a finding is to be recorded in the disciplinary proceedings, which is conspicuously missing. As such, when a finding of grave misconduct and grave negligence, being condition precedent under the relevant rules, has not been recorded, the imposition of penalty is not only against the dicta in D.V. Kapoors case (supra) but the issue involved in the case in hand is fully covered by Venugopalans case (supra). Hence, the penalty imposed upon the applicant is without jurisdiction and nullity in law. Resultantly, leaving other grounds open, present Original Application is allowed. Impugned orders are set aside. Withheld pension and gratuity of the applicant alongwith arrears and admissible rate of interest is directed to be paid to the applicant within a period of two months from the date a certified copy of this order is served upon the respondents.
20. The learned counsel for the applicant has further relied upon the judgment of the Apex Court in Inspector Prem Chand vs. Govt. of NCT of Delhi and others, (2007) 4 SCC 566, wherein it was held as under:
7. The contention of the learned counsel for the appellant is that in the peculiar facts and circumstances of this case, the appellant cannot be said to have committed any misconduct.
8. Mr. A. Sharan, learned Additional Solicitor General appearing on behalf of the respondents would, on the other hand, support the impugned judgment.
9. Before adverting to the question involved in the matter, we may see what the term 'misconduct' means.
10. In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54], it was stated:
"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
13. The Tribunal opined that the acts of omission on the part of the appellant was not a mere error of judgment. On what premise the said opinion was arrived at is not clear. We have noticed hereinbefore that the appellate authority, namely, the Commissioner of Police, Delhi, while passing the order dated 29.8.2003 categorically held that the appellant being a raiding officer should have seized the tainted money as case property. In a given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard and fast rule can be laid down therefor.
14. The Criminal Court admittedly did not pass any adverse remarks against the appellant. Some adverse remarks were passed against the Investigating Officer, who examined himself as PW-4 as he had handed over the tainted money to the complainant PW-2.
15. A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar vs. Union of India & Ors., [1999 (7) SCC 409], has categorically held:
"42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty."
16. We, therefore, are of the opinion that in the peculiar facts and circumstances of this case, the appellant cannot be said to have committed any misconduct.
17. Impugned judgment, therefore, in our opinion cannot be sustained, It is set aside accordingly. The appeal is allowed. No costs.
21. Respondents in their reply have submitted that the case of T.P.Venugopalan and H.L.Gulati has no relevance in this case. They have further submitted that though the enquiry officer has not proved the Article IV framed in the memorandum of charges, disciplinary authority has clearly and conclusively disagreed with the findings of Inquiry Officer after having given the applicant the necessary opportunity to prefer a representation. They have also submitted that the charges levelled against the applicant were concrete and specific duly supported by documentary evidence which attracted major penalty proceedings under the CCS (CCA) Rules, 1965. They have also stated that in terms of the Government of India decision No. 23(10) under Rule 3-C of CCS (Conduct) Rules 1964, (Annexure R-3) if the neglect of the servant though isolated, tends to cause serious consequences: amounts to misconduct. Further, they have submitted that negligence on part of the applicant caused pecuniary loss to the Government to the tune of Rs.19.47 lacs approximately. According to them, spotless and excellent service rendered by the applicant for 14 = years is not a guarantee against the future misconduct. They have, therefore, submitted that keeping in view the records of the disciplinary proceedings, the totality of the case and the gravity of misconduct committed by the applicant, the penalty imposed upon him by the disciplinary authority is just and adequate. As regards the supply of CVC first stage advice was concerned, they have submitted that the same was issued vide CVCs letter dated 28.9.2002 whereas the chargesheet in this case was issued on 21.7.99. Therefore, the question of supplying the CVC first stage advice to the applicant did not arise. However, the second stage advice of the CVC was supplied to him and it was confirmed by him. Further, the disciplinary proceedings were conducted in a proper manner and in accordance with the procedure laid down for the purpose. Applicant was also given adequate and full opportunity to defend himself at all stages. As regards the CBI case is concerned, they have submitted that departmental proceedings initiated against the applicant was against audit lapses committed in processing the bills whereas the case filed by the CBI relates to criminal proceedings. Therefore, the discharge of the applicant in the criminal case has no relevance in the matter particularly in view of the fact that the applicant was discharged by the Special Court of CBI only from the criminal conspiracy. It was evident from the observations of the Special Judge that they may not have been negligent in their duty or it may not have been possible for them to make proper comparison with naked eye, but it definitely does not show any conspiracy in passing the bills. It was also their contention that the charge against the applicant was serious, i.e., the audit lapses committed by the applicant in processing the fraudulent claims which caused pecuniary loss to govt. to the tune of Rs.19.47 lacs approximately are enumerated in the charge sheet. As regards the recording of grave misconduct is concerned, the same has to be seen from the totality of the circumstances. So far as the use of grave misconduct is concerned, it is for the Competent Authority to judge whether proven aspect of charge amounts to grave misconduct or not. The inquiry officer is not required to mention such words as grave misconduct as he is required to give his findings on the charges against the applicant and the gravity of charge is to be judged by the Competent Authority.
22. We have heard the learned counsel for applicant. Even though thrice this case was passed over today, none on behalf of the respondents has appeared to argue the matter. In view of this, we have proceeded with this matter under Rule 16 (1) of CAT Procedure Rules, 1987 according to which where on the date fixed for hearing the application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the application is called for hearing, the Tribunal may, in its discretion adjourn the hearing, or hear and decide the application ex parte.
23. Admittedly the Applicant was a Senior Auditor, Sh. T.P.Venugopalan was a Senior Accounts Officer and Sh. H.L.Gulati was another Senior Accounts Officer. All of them were chargesheeted for similar alleged misconduct. The Article of charges against them have been extracted elsewhere in this order. As in those cases, there are no charges of misconduct and lack of integrity against the applicant. The Enquiry Officer categorically held that the prosecution failed to prove the charge that the applicant had processed 22 bills amounting to Rs.19.44 lakhs approx. in M Section whereas those bills should have been processed in Store Section. As regards the second and third charges were concerned, what the enquiry officer held was that it was partially proved to the extent that the applicant has not verified the specimen signature and he did not route the bills through Accounts Section. However, it was again categorically held with regard to those charges that the applicant processed the bills under haste and he had complicity with the alleged suppliers, were not proved. As a result the charge that the applicant failed to maintain absolute integrity was not proved. The Disciplinary Authoritys disagreement note only says no local direction could be taken into consider to justify the passing of the bills. Further, the Disciplinary Authority agrees that the concerned AOs/MAOs have also been charge sheeted on the same issue. Admittedly, the issue was considered by this Tribunal in T.P.Venugopalans case (supra) and H.L.Gulatis case (supra) and both the OAs were allowed. In any case, the applicants inability to detect the forged bills cannot be considered as a misconduct on his report. As held by the Apex Court in Union of India & ors. vs. J.Ahmed, 1979 (2) SCC 286 and Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors., (2007) 4 SCC 566, acts of negligence or innocent mistake do not constitute any misconduct. In the peculiar facts and circumstances of this case also, we are of the view that it cannot be held that the applicant had committed any misconduct. Again as held by the Apex Court in D.V.Kapoor vs. Union of India, AIR 1990 SC 1923, there is no finding that the applicant was guilty of gross misconduct or negligence in the discharge of his duty by the applicant. Further, the applicant has been discharged from similar and identical charges by the Special Court of CBI and the Criminal Revision filed by the CBI has also been dismissed by the Honble High Court of Delhi. As held by the Apex Court in G.M.Tank vs. State of Gujarat (supra), the fact and evidence in the departmental as well as criminal proceedings being the same without there being an iota of differences, the applicant should succeed in the departmental proceedings.
24. In the above facts and circumstances of the case, we do not find any reason for us to deviate from the orders of the Tribunal in T.P.Venugopalans case (supra) as upheld by the Honble High Court of Delhi and the Apex Court and also orders of the Coordinate Bench of this Tribunal in H.L.Gulati s case (supra). We allow this OA. Impugned orders are set aside. Applicant shall be reinstated in service forthwith with all consequential benefits. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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