Central Administrative Tribunal - Delhi
Shri Vijendra Singh vs Union Of India on 2 December, 2011
Central Administrative Tribunal Principal Bench OA No.806/2011 New Delhi, this the 2nd day of December, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Vijendra Singh, S/o Shri Giriraj Singh, Deputy Director (Chemistry), Directorate of Plant Protection, Quarantine and Storage, Ministry of Agriculture, N.H.-4, Faridabad, Haryana. . Applicants. (By Advocate : Shri Yogesh Sharma) Versus 1. Union of India Through The Secretary Government of India, Ministry of Agriculture, Department of Agriculture and Cooperation, Krishi Bhawan, New Delhi. 2. Additional Secretary, Government of India, Ministry of Agriculture, Department of Agriculture and Cooperation, Krishi Bhawan, New Delhi. 3. Joint Secretary, Government of India, Ministry of Agriculture, Departme1nt of Agriculture and Cooperation, Krishi Bhawan, New Delhi. 4. Union Public Service Commission, Through the Secretary, Shahajhan Road, New Delhi-1. Respondents. (By Advocate : Ms. Sahama Sharma) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Bijender Singh, the applicant herein, was appointed as Laboratory Assistant (Chemistry) on 04.02.1975 and after some promotions, reached the rank of Deputy Director (Chemistry). In the rank of Assistant Director (Chemistry) while working at Regional Pesticides Testing Laboratory (RPTL), Chandigarh, the applicant was issued a major penalty charge sheet dated 29.5.2008 on the alleged misconduct committed by him in analysis of 35 Pesticide samples done at RPTL, Chandigarh which on verification and re-analysis at Central Insecticides Laboratory (CIL), Faridabad was found to have 51% variation. As the alleged misconduct took place during the tenure of the applicant as Incharge RPTL, Chandigarh, he was proceeded against in the charge sheet for gross negligence, dereliction of duty, lack of supervision, lack of integrity and commission for irregularities and willfully approving wrong analysis reports with respect to the samples which were found to be not confirming to the re-analysis test done at CIL. The applicant was placed under suspension w.e.f. 22.1.2008. He denied those charges and the inquiry was conducted where out of two charges, Inquiry Officer (IO in short) held Charge No.I as proved and Charge No.II as partly proved. The applicant was provided with the IOs report which he responded by giving detailed representation denying the charges. The Disciplinary Authority referred the entire matter to the Union Public Service Commission (UPSC), which after a detailed analysis of the same held Article-I of the charge as partly proved and Article-II as also partly proved. The applicant was provided the copies of the UPSC report and the Inquiry Officers report to which he submitted his representation. The Disciplinary Authority considered all the facts including the defence of the applicant and agreeing with the views of the UPSC imposed the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of one year, without cumulative effect and not adversely affecting his promotion. As the said penalty order was issued in the name of the President, the applicant is before this Tribunal in the present OA praying for the following relief(s) :-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 28.12.2010 impugned charge sheet dated 29.05.2008, inquiry officer report and UPSC advice and declaring to the effect that the same are illegal and arbitrary and consequently pass an order directing the respondent to restore the pay of the applicant with all consequential benefit deeming no charge sheet was issued to the applicant.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
2. Shri Yogesh Sharma, learned counsel for the applicant highlighting the background of the case submitted that no misconduct could be imputed to the applicant as the test conducted in the Laboratory was done by the concerned officials and as a procedural formality, the applicant was signatory to the test certificates. He also submitted that the applicant conducted random testing of the tests done by the Laboratory Assistants and thereafter the certificates were issued. His contention is that the applicant was merely at the supervisory level and main people who conducted the test are the junior level officers against whom no disciplinary case had been taken by the concerned authorities. Further he submits that the CIL Faridabad instead of conducting three mother samples, conducted one mother sample for the test and that too after a period of 6 to 8 months. Such belated testing of the samples and that too of one mother sample would not have given the correct result. It is further the contention of the learned counsel for the applicant that the quality over the period of time would have deteriorated and there was no procedure that the applicant should test 100% of the test results by re-testing the samples in the Laboratory. In view of the above facts, he urges that the 51% variation is normal and the applicant cannot be faulted. Neither the Inquiry Officer nor the Disciplinary Authority has found any malafide intention nor any pecuniary benefit to the applicant due to the said alleged misconduct which the applicant refuted very strongly.
3. Opposing the grounds taken by the applicant, the respondents have entered appearance and have filed their reply affidavit on 25.5.2011. Ms. Sahama Sharma, learned counsel appearing on behalf of the respondents would contend that applicant was Incharge of RTPL and was duty bound to ensure that the proper testing of samples took place. Her contention is that the applicant has failed to discharge his responsibility to exercise control over the analysis and to keep the testing system in order. Blindly relying on the analysis report , the applicant has signed the certificates and, therefore, the Inquiry Officer has rightly held the Article-I as proved and Article-II of the charge as partly proved. She drew our attention that the applicant moved the Chandigarh Bench of this Tribunal earlier in OA No.454/CH/2008 which was decided on 17.12.2009 wherein the Tribunal while disposing of the OA issued the directions to the applicant to file a reply to show cause notice given to him and respondents should review the suspension case of the applicant before the expiry of the present period of suspension. The applicant was furnished the report of the Inquiry Officer of the CVC and advise of the UPSC and the penalty of reduction to a lower stage in time scale was justifiable for the alleged misconduct. Her contention is that the principles of natural justice and the proportionality angles have gone into while passing the impugned order. She drew our attention to the Chart-I furnished in the OA which indicates the description of samples analysed at Chandigarh and re-analyses done as CIL, Faridabad and it has been indicated therein that less than 50% of the samples would not confirm and 51% only confirm to the standards. Clarifying the position that three mother samples were not reanalyzed but one mother sample was analysed , she clarified that such non-checking of three mother samples was not necessary though the standards prescribed for the same. She , therefore, submits that impugned penalty order being based on facts and the report of the CIL and on the basis of the advice of the UPSC, there is no merit in the application and the same should be dismissed.
4. Having heard the contentions of the rival parties, we have perused the pleadings. The short question that comes for our consideration and determination is that whether the impugned penalty order is legally sustainable?
5. Before we proceed to analyse further, it would be appropriate to take the extract of two article of charges which were framed against the applicant.
ARTICLE OF CHARGE-1 That Shri Vijender Singh, DD (Chem.), while posted and functioning as In-Charge of Regional Pesticide Testing Laboratory (RPTL), Chandigarh, committed gross and deliberate irregularities and dereliction of duty in the analysis of 35 pesticide samples referred to RPTL, Chandigarh, under the Insecticides Act, 1968 during the period from April to September, 2007. These 35 samples were tested at RPTL, Chandigarh. As In-charge of the laboratory, he was overall responsible for the work distribution, supervision and control over the staff and resources. Of these samples when got reanalyzed at CIL, Faridabad , 18 samples gave different results. This amounts to a variation of 50%. The analysis of these 35 samples at RPTL, Chandigarh was conducted during the tenure of Sh. Vijender Singh, DD (Chem) as In-Charge, RPTL, Chandigarh. The evidence indicates gross negligence, dereliction of duty, lack of supervision, lack of integrity and irregularities committed by Shri Vijender Singh, DD (Chem.).
2. By the above act, Shri Vijender Sing, DD (Chem.), committed misconduct in the aforesaid manner and exhibited lack of integrity and lack of devotion to duty, and thus violated the provisions of Rule 3(1) of CCS (Conduct) Rules, 1964.
ARTICLE OF CHARGE-II That the said Shri Vijender Singh, DD (Chem), while posted and functioning as In-Charge of RPTL, Chandigarh, willfully approved wrong analysis reports with respect to the samples which were sent to RPTL, Chandigarh for testing under Section 22(6) of the Insecticides Act, 1968 during the period from April to September, 2007. By doing so, his conduct exhibited lack of prudence and diligence and lack of integrity in such matters of utmost importance which is unbecoming of a Government Servant.
2. By his above act, the said Shri Vijender Singh, DD (Chem.), committed misconduct in the aforesaid manner and failed to maintain absolute integrity and dedication to duty and acted in a manner which is unbecoming of a Government Servant and thus violated the provisions of Rule 3(1) of CCS (Conduct) Rules, 1964.
6. In view of the above charges framed against the applicant, the Inquiry Officer conducted the inquiry and came to the conclusion that the Article-I of the charge is proved and Article-II of the charge is partly proved. The finding of the Inquiry Officer is as follows :-
38. I have the opinion that the C.O. who was overall incharge of RPTL and exercising the control over analysis and resources could not discharge his duty in true spirit, thus the Article of Charge-I framed against him is found established.
39. Thus Article of Charge-I is proved against the Charged Officer.
40. Thirty five samples analysed at RPTL, Chandigarh when re-analysed at CIL, Faridabad, there was variation in results of Eighteen samples. Description of sample was the same at both the occasions of testing and re-testing, only two samples were found with limps formation. Other arguments taken in defence by C.O. also could not justify the variations in these results. Neither any prosecution documents or witness could prove the CO was willfully approving the wrong analysis report.
41. Thus Article of Charge-I is proved against the Charged Officer.
42. Shri Vijender Singh, Charged Officer while posted and functioning as in-charge of RPTL, Chandigarh got more than one report of analysis for each sample but could not get properly analysed more than 50% samples from the analyst working under him. It shows that he could not exercise proper control at some of his analysts which was expected from him and was a part of his duty and responsibility.
42. He relied only upon the reports given by analysts. It proves that the C.O. approved the wrong analysis report but do not prove that the willfully approved wrong analysis report. Thus the Article of Charge-II is partly proved against eh Charged Officer.
Findings Article of Charge-I - Proved.
Article of Charge-II - Only part of the charge Proved.
7. The Disciplinary Authority having considered the Inquiry Officers report and in consultation with the UPSC views imposed the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely affecting his pension. It is appropriate for us to note that the matter of sample testing and role of the applicant in the said sample testing and 51% confirming to the test results in RPTL as found in the reanalysis by the CIL, it would be appropriate for us to go into the evidence that has been received by the IO in the inquiry.
8. It is trite law that the Tribunals role is not to re-appreciate the evidence that has been received but to ensure whether the relevant facts have been considered and irrelevant facts have been ignored by the IO or not and in case the irrelevant facts have been taken into account whether the Disciplinary Authority has been influenced by such facts?.
9. In this context we would like to refer to various judgments of Honble Supreme Court. It is trite law that this Tribunal can examine the evidence to find out whether there is any evidence against the applicant in the case. We note that in exercise of judicial review, our powers are limited. We went through many judgments of Honourable Supreme Court of India in the matters relating to framing of charges, conducting of the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we kept in our mind while deciding the issues in the present OA, are following : (i) Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which the decision is taken. (ii) The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards. (iii) The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
10. At para 30.2, the IO has recorded that the charged officer did not raise specific error crept up in the coding, recording of these 35 samples but on the basis of some mistake in the coding register, he has raised doubts with regard to the material tested at CIL, Faridabad might be different from those tested at RPTL, Chandigarh but he has not pointed out any mistake in he coding or decoding of the 35 samples which were put for re-examination at CIL. He has gone on to indicate the following in para 31 of his report:-
31. During the course of re-analysis remnants of samples of RPTL, Chandigarh were not tested/re-analysed. As has been said by CO that re-analysis results vary if done after long gap of time after opening of the original sealed samples as substance of volatile in nature used in liquid formulation with effect the % of A.I. and of solid/powder lump formulation takes place causing variation in result. Since a portion of the samples is kept at CIL in original container it will be more closer to the original in comparison to that which have more exposure due to frequent use of the portion in analysis to generate three mother reports at RPTL, Chandigarh. Thus the portion kept in coding room Faridabad will be nearer to the original sample and will show lesser variation, if any, in comparison to that of remnants of samples at RPTL, Chandigarh. Sine the samples are coded at CIL with full details these were retested accordingly. Mistake in coding register have been pointed out but it was taken care of by the authority and corrected in due course of time. Most of the samples were kept in original containers so change in % of ai due to volatile nature would not affect much. These go to show that variation in the results may arise if the testing in done after a long period. In the instant case, the retesting was done after 6 to 8 months. Further, the IO has come to the conclusion that lump formation was in two samples. These circumstantial and relevant evidence have not been taken into account by the I.O. and Disciplinary Authority.
11. Three important and relevant points raised by the applicant in his defence on the IOs report in his letter dated 21.12.2009 have not been considered by the Disciplinary Authority. Those points are :-
3(v) I.O. also did not take congnizance of another fact. By virtue of having been in-charge of Chemistry Division of CIL, CO can say under oath that three mother reports are generated for every sample tested at CIL. Analysis reports of a few samples, tested in CIL may also be seen for the sake of example to ascertain this fact. In such analysis, passing and failing reports are received by the in-charge for the same sample in a number of cases, which are the proof of variation within the same laboratory. In the case, why only one report instead of three was generated in CIL, which would have shown variation in analysis of the same sample within CIL and proved the analysis of RPTL at similar footing? Was it to hide the variation within CIL and framing the CO? Therefore, single report of CIL cannot be taken as conclusive especially when the future/career of a responsible officer is at stake.
4(ii) I.O. did not take into consideration the fact that analysts of RPTL should have also been called and given an opportunity of association with the re-testing of every sample, tested earlier at RPTL, at CIL for fair-play and for the sake of justice.
4(iv) I.O. has not taken into consideration that analysis of staff was checked randomly in a few cases, which can be shown only if the CO is allowed access to records of RPTLs. One of such verificational/ conformational report is also available among the reports on record of this case. This is an ample proof of effective supervision. It may be appreciated that 100% checking of sample for verification is not practically feasible.
12. The applicants role in the RPTL was Incharge who is not expected to conduct the test of the samples himself. It is the primary responsibility of the Analysts in the laboratory to conduct the testing of the samples. It is understood during the hearing that the primary responsibility has not been fixed on the officials who have conducted the tests. On the other hand, the applicant who was only on a supervisory role and has taken some percentage of samples randomly for test verification and found to have confirmed to the initial test result of the samples have been charged. In the matters like this, if the respondents have not taken action against the officials directly involved in conducting the test of the samples, it would be inappropriate and legally unsustainable to take action against the applicant who has played the supervisory role therein.
13. Examining the case from another angle, it can be seen that the 50% of mother samples re-analysed at CIL have been found to conform to the initial test results done at RPTL. This would mean that about 50% did not conform. It should be noted here that the CIL testing of the mother samples have been done after a lapse of 6 to 8 months when the initial testing of the samples was done in RTPL. In the matters of Insecticides and Pesticides , which were tested in both RTPL and CIL being after a long period, the strength, purity and vitality of the insecticides and pesticides deteriorate. The strength and purity of sample which used to be 6 months before may not remain same after 6 to 8 months. This aspect when put to the parties during the hearing, they confirmed the above observation. Applicant has raised a pertinent question - what certainly is there that CIL test result is correct? He also raised his finger at the retesting of the samples done at CIL where neither the applicant nor his Analysts from RPTL were present. In this context, the samples which did not conform to the initial test results conducted at the RPTL could not be the basis to frame charges against the applicant.
14. Yet another angle needs to be looked into in the present case. The normal practice for re-testing the samples is done through three mother samples whereas in the present case only one mother sample testing has been done. Admittedly, the proper procedure has not been followed while cross checking and retesting the result of the RPTL by the investigating authorities. This procedural infirmity would certainly go in favour of the applicant.
15. In the conspectus of the facts and circumstances of the case, we are of the considered opinion that the Disciplinary Authority has not taken into account the relevant facts and has gone by the I.O.s report and the advice of the UPSC to impose the punishment upon the applicant. As the appropriate and relevant materials available in the inquiry have not been considered both by the IO and by the Disciplinary Authority, it would be appropriate for us to quash and set aside the orders of the Disciplinary Authority. Normally, we would remit the case back to the Disciplinary Authority to examine and decide the matter afresh. But this is a typical case where the primary responsible persons like the Analysts have not been charged but he applicant, Incharge of the RPTL has been departmentally dealt. The inquiry has not brought out anything against the applicants integrity. There is no evidence of malafide intention. Even his supervisory function has not been questioned with any serious negligence or devotion to duty. Taking of samples have been done after long lapse and in his absence. We find that farming of charges against the applicant has been done in an arbitrary, irrational and illogical manner. Further, in the matters like this, the penalty shocks the conscience of the Tribunal as the relevant matters have not been considered. After due consideration of these facts in a careful/thoughtful manner and taking into account our observations in the forgoing paragraphs, we come to the considered conclusion that the charge-sheet dated 29.5.2008 and impugned penalty order dated 28.12.2010 are liable to be quashed and set aside. We order accordingly. The applicant will be entitled to the consequential benefits.
16. Resultantly, in terms of our above directions, Original Application having merits is allowed leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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