Central Administrative Tribunal - Lucknow
Unknown vs Union Of India Through The Secretary on 7 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No. 264 of 2011
Order Reserved on 26.4.2016
Order Pronounced on 07.05.2016
Honble Mr. Navneet Kumar, Member (J)
Honble Ms. Jayati Chandra, Member (A)
Basant Kumar Pandey, aged about 63 years, son of Late Shri K.S. Pandey, at present resident of -480/37, Bagh Shahji, MMB Road, Daliganj, Lucknow.
.Applicant
By Advocate: Sri Praveen Kumar
VERSUS
1. Union of India through the Secretary, Ministry of Information and Broadcasting, Shashtri Bhawan, New Delhi.
2. The Director General, All India Radiio, Akashwani Bhawan, New Delhi.
3. The Chief Engineer (Civil), Civil Construction Wing, 6th Floor, Soochna Bhawan, New Delhi.
4. Ms. Nooren Naqvi, Retired Director General, All India Radio, Akashwani Bhawan, New Delhi.
5. Shir M. S. Mehta, Inquiry Officer through Director General, All India Radio, Akashwani Bhawan, New Delhi.
.Respondents
By Advocate: Sri Rajesh Katiyar
ORDER
By Honble Mr. Navneet Kumar, Member (J) The present Original Application is preferred under Section 19 of Administrative Tribunal Act with the following reliefs:-
1. To quash the impugned order dated 31.3.2011 and order dated 18.4.2011 is being filed herewith as Annexure No. A-1 and A-2 to this O.A.
8.(A) (i) To quash the impugned order dated 11.11.2011 and also order dated 27.10.2011 after summoning original from the respondents contained as Annexure No. A-2 A to this O.A..
2. To direct the Disciplinary Authority i.e. respondent No. 2 to take suitable decision in the light of Enquiry Report dated 18.8.2010 submitted by the earlier Enquiry Officer Shri D. K. Das.
3. To release all consequential benefits withheld on account of charge sheet in question.
4. To pay interest @ 12 % per annum on delayed payment of benefits till the date of actual payment from the date of retirement.
5. Any other relief, which this Honble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
6. Cost of the present case may also be awarded as the applicant has unnecessarily been dragged into litigation.
2. The brief facts of the case are that the applicant was working with the respondents organization, retired from service on 28.2.2009. While working on the post of Assistant Surveyor of Works (Electrical), under Director General , All India Radio, New Delhi on attaining the age of superannuation. While he was in service, he was served with a charge sheet on 3.2.2009 only few days before his retirement. In the said charge sheet, the disciplinary authority levelled certain allegations wherein, it is indicated that the applicant fraudulently claimed Transfer TA bill amounting to Rs. 19,007/- of a car as personal effect which was not in his name on the date of claiming of transfer TA and the actual charge for hiring Car was Rs. 10007/-. Therefore, the applicant fraudulently claim the amount.
3. The applicant immediately submitted his reply to the said charge sheet on 16.2.2009 and denied the allegations and also demanded for enquiry in the matter. The applicant also demanded supply of the rule and provision which requires that a person under transfer can take vehicle registered under his name only an not in the name of someone else.
4. The applicant submitted another representation on 18.2.2009 and requested the disciplinary authority to cancel the charge sheet in question and has also submitted supplementary written statement in addition to his previous written statement to the charge sheet issued to him.
5. In the meantime, the applicant superannuated and after that the pensionary benefits were withheld without any sufficient cause and the applicant was also not being paid the TA /DA enabling him to attend the enquiry. The applicant also requested for change of enquiry officer, but the disciplinary authority rejected the representation of the applicant without assigning any reason.
6. It is also indicated that the applicant preferred two O.As before this Tribunal for payment of pensionary benefits and as on today, only the provisional pension is being paid and his entire other pensionary benefits are yet not been paid.
7. Subsequently, the enquiry officer completed the enquiry and submitted his report on 18.8.2010. The report of the enquiry officer contained 46 pages and specifically observed that the charges levelled against the charged employee are not proved. It is also observed by the enquiry officer that the officer who has issued the charge sheet was not the competent as he was only looking the duties of the disciplinary authority and was not the appointing authority.
8. The report of the enquiry office was submitted in the month of August, 2010 and thereafter, the applicant approached the disciplinary authority and requested for payment of admissible retiral benefits, but the same is not paid and finally the applicant was served upon a letter dated 8.4.2011, along with the said letter, the applicant was also served upon another letter dated 31.3.2011, wherein, it is indicated that the disciplinary authority has ordered fresh enquiry in the charge sheet. The said decision of the disciplinary authority is claimed to be beyond jurisdiction of the authority concern.
9. The learned counsel for the applicant has categorically indicated that the applicant superannuated on 28.2.2009 and the enquiry officer submitted the enquiry report on 18.8.2010 and without issuing any disagreement memo by the disciplinary authority, the disciplinary authority passed the impugned order dated 31.3.2011 for holding a fresh enquiry.
10. The learned counsel for the applicant also indicated that in terms of Rule 15(1) of CCS (CCA) Rules 1965, no fresh enquiry can be conducted by another enquiry officer. It is also indicated by the learned counsel for the applicant that, it is incumbent upon the disciplinary authority either to accept the finding of the enquiry officer in part or in full or to disagree and in case of disagreement, he will have to issue a disagreement note to the charged employee and in case, the disciplinary authority is not satisfied with the way of enquiry, he may order further enquiry in the matter but with the reasons recorded.
11. The respondents through order dated 31.3.2011 impugned in the present O.A., not indicted any reason as such, the said order is a non speaking order. It is also argued that it is incumbent upon the administrative, judicial or quasi judicial authority has to intimate the reasons for taking or for not taking an action.
12. The disciplinary authority has ordered fresh enquiry without indicating any reasons is arbitrary action on the part of the respondents and absolutely illegal and misconceived . It is alleged by the learned counsel for the applicant that the said order was passed on the dictate of the vigilance department and it is well settled that the vigilance department has got no role to play and they cannot have the supervisory jurisdiction over the power and authority over the disciplinary authority.
13. The learned counsel for the applicant has also argued that the applicant also asked for certain documents but they were not provided to him and finally when the applicant was exonerated by the enquiry officer in the enquiry proceedings , there was no occasion for the vigilance department to dictated the disciplinary authority for holding a fresh enquiry that too by different enquiry officer.
14. The applicant has also taken a ground that the disciplinary authority also ignored this fact mentioned by the enquiry officer that the authority who has issued the charge sheet was not competent to issue the same.
15. The learned counsel for the applicant also indicated that though the enquiry officer has already retired but in terms of decision of the Honble Supreme Court in the case of Union of India Vs. Alok Kumar reported in 2010 (2) SCC L&S 22, the retired employee can be appointed as an enquiry officer. Apart from this, the applicant has also relied upon a decision of the Honble Apex court in the case of State of U.P. Vs. Saroj Kumar Sinha reported in (2010) 1 SCC (L&S) 675 as well as another decision of the Honble Apex Court in the case of Kuldeep Singh Vs. Commissioner of Police and Others reported in (1999) 2 SCC 10 and the case of Mohinder Singh Gil reported in AIR 1978 SC 851. Apart from this, the applicant has also relied upon three decisions of this Tribunal one passed in O.A. No. 114 of 2007 Ashok Kumar Verma Vs. Union of India, O.A. No. 163 of 2007 B. K. Gupta Vs.Union of India and Others and the case of Romeo Charley vs. Director General Council of Scientific and Industrial Research (CSIR) New Delhi reported in (1989) 9 ATC 141. It is also argued by the learned counsel for the applicant that the decision to conduct another enquiry by means of the impugned order is highly improper and requires interference by this Tribunal.
16. On behalf of the respondents, detailed counter reply is filed and through which, the respondents indicated that the disciplinary authority while passing the order dated 31.3.2011 has fully examined the enquiry report and only thereafter, he has taken a decision for re-enquiry. Not only this, it is also indicated by the respondents that the applicant remain absented himself unauthorizedly from duty from 17.7.2007 to 27.3.2008 and the said period has not yet been regularized.
17. It is also argued by the learned counsel for the respondents that as regard the payment of Gratuity, re-fixation of pensionary benefit of second ACP are concerned, the same cannot be given due to vigilance case pending against the applicant. The respondents vehemently argued and indicted that the charge sheet which was issued to the applicant was issued by the competent authority in fact in the absence of regular DG, AIR, the then Chief Executive Officer, Prasar Barati was nominated by Ministry of Information vide order dated 19.7.2007 to act as a disciplinary authority in respect of Group B Officers of General Central Services till a regular incumbent joins or until further order whichever is earlier.
18. Accordingly, the charge sheet in respect of the applicant was issued by the Chief Executive Officer, Prasar Bharati in the capacity as disciplinary authority. Hence the contention of the applicant and that of enquiry officer is totally unfounded and was not based on facts. But the respondents fail to give any reply to this fact that as to under which provision the respondents passed the order dated 31.3.2011 for holding fresh enquiry by a different enquiry officer.
19. On behalf of the applicant, rejoinder is filed and through rejoinder, mostly the averments made in the O.A. are reiterated and the contents of the counter reply are denied.
20. Heard the learned counsel for the parties and perused the record.
21. The applicant, while working with the respondents organization was charge sheeted through charge sheet dated 3.2.2009 wherein, it is indicated that while working as Assistant Surveyor of Works (Electrical), CCW, AIR Nagpur during the period April 2007, the applicant fraudulently claimed transfer TA amounting to Rs. 19,007/- for transporting of a car as personal effects which was not in his name on the date of claiming of transfer TA. Therefore, the applicant submit fraudulent claim by submitting forged receipt instead of submitting original receipt of CRV given by the transport.
22. In response to the charge sheet, the applicant submitted the reply and denied the charges and requested to hold a enquiry so that he can prove that the charges are wrong and his pensionary benefits may not get effected since he is due to retire on 28.2.2009. In continuation to his reply, he has again submitted a reply on 18.2.2009 and asked for certain documents. When nothing was given to him, he submitted the written statement of his defence on 22.4.2010.
23. After submission of the written statement, the enquiry officer was appointed and the enquiry officer submitted the detail reply indicating therein that the charges so levelled against the applicant are not proved and the enquiry officer also submitted a finding in respect of the competence of the authority who issued the charge sheet.
24. The said enquiry report was submitted on 18.8.2010 and as soon as, the same was submitted the applicant claimed for release of his pensionary benefits , but the respondents without looking into the facts and relevant provisions of law, issued an order on 31.3.2011 appointing one Sri M. S. Mehta, SW(C), CCW, AIR New Delhi as enquiry officer in place of Sri D. K. Das to charges framed against the applicant.
25. It was argued that in the said order, the disciplinary authority has neither issued any disagreement memo nor given any show cause notice to the applicant rather he exercised his powers arbitrarily and appointed another enquiry officer to conduct the enquiry.
26. It is also to be seen that the impugned order dated 31.3.2011, 18.4.2011is fixing the date of preliminary hearing. The order dated 11.11.2011 which is passed by on the dictate of the vigilance officer is non speaking orders. The Rule 15 (1) of the CCS (CCA) Rules, 1965 provides for the action of the inquiry report and the said provision reads as under:-
15(1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing , remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provision of Rule 14, as far s may be.
27. It is clear from the aforesaid provision that the power of the disciplinary authority is only to remit the case to the inquiring authority for further inquiry and report. Two things have to be noted, from the provisions in the sub-rule. Firstly, the remit has to be the inquiring authority, which means the particular officer who conducted the inquiry and not to another. Secondly, the remit has to be for further inquiry, and not for re-inquiry. The word further is significant. It implies that whatever is there already is to be there, and having regard to it to have something more in addition; going beyond what exists.
28. On the other hand, re-inquiry has the effect of treating what is actually there as nonest and substituting it by something entirely different. The provision in the Rules does not give authority to the disciplinary authority to ignore the report of the inquiring authority and to order a re-inquiry by a different inquiry authority. It would follow that the order imposing the penalty based on such a report of an inquiring authority, brought on record by the disciplinary authority without jurisdiction and without authority, cannot be sustained.
29. It is indicated by the learned counsel for the applicant that the entire proceedings is based on the instructions of the Vigilance department. The learned counsel for the applicant has also relied upon the decision of the Honble Apex Court in the case of Kuldeep Singh Vs. Commissioner of Police and Others reported in (1999) 2 SCC 10 and pointed out that finding of guilty although would not be normally interfered with, the court can interfere therewith if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of superior authority.
30. The Honble Supreme Court in the case of Nagaraj Shivarao Karjagi Vs. Syndicate Bank Head Office Manipal and another reported in 1991 SCC (L&S) 965 has been pleased to observe that Bank Officer compulsorily retired by mechanically accepting Central Vigilance Commissioners recommendations without considering whether the punishment was commensurate with gravity of the misconduct or not in the fact situation of the case and as held that the order of compulsory retirement vitiated by non-application of mind.
31. The Honble Apex Court in the case of State of U.P. Vs. Saroj Kumar Sinha (Supra) , it is indicated that an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved.
32. The bare perusal of the entire record shows that the enquiry officer exonerated the applicant and the disciplinary authority without issuing any show cause notice and also without following the due process of law and also ignored the Rule 15 (1) of CCS (CCA) Rules 1965 ordered for holding a fresh inquiry by another enquiry officer, as such, the impugned order dated 31.03.2011 is unsustainable. Apart from this, the order dated 11.11.2011 is passed by the Vigilance officer on the approval of Chief Vigilance officer is illegal.
33. Considering the observations made by the Honble Apex Court as well as on the basis of the facts of the case, the respondents acted unfairly. Accordingly, the impugned order dated 31.3.2011, 18.4.2011 as contained in Annexure No. A-1, A-2 and the order dated 11.11.2011 as contained in Annexure A2-A are liable to be quashed and are accordingly quashed. The respondents are directed to release the pesionary benefits of the applicant within a period of three months from today without any interest .
34. With the above observations, the O.A. is allowed. No order as to costs.
(Ms. Jayati Chadra) (Navneet Kumar)
Member (A) Member (J)
vidya
Tarapada Bhattacharjee CAT
It is clear from the aforesaid provision that the power of the disciplinary authority is only to remit the case to the inquiring authority for further inquiry and report. Two things have to be noted, from the provisions in the sub-rule. Firstly, the remit has to be the inquiring authority, which means the particular officer who conducted the inquiry and not to another. Secondly, the remit has to be for further inquiry, and not for re-inquiry. The word further is significant. It implies that whatever is there already is to be there, and having regard to it to have something more in addition; going beyond what exists. On the other hand, re-inquiry has the effect of treating what is actually there as nonest and substituting it by something entirely different. The provision in the Rules does not give authority to the disciplinary authority to ignore the report of the inquiring authority and to order a re-inquiry by a different inquiry authority. It would follow that the order imposing the penalty based on such a report of an inquiring authority, brought on record by the disciplinary authority without jurisdiction and without authority, cannot be sustained.
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