Central Administrative Tribunal - Delhi
Sh. Pawan Kumar vs National Technical Research ... on 21 April, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2328/2014
MA-1111/2015
Reserved on : 09.04.2015.
Pronounced on : 21.04.2015.
Honble Sh. G. George Parakcen, Member (J)
Honble Sh. Shekhar Agarwal, Member (A)
Sh. Pawan Kumar, (Aged about 41 years),
S/o late Sh. Hanumant Singh,
R/o A-23, Sector-71,
Noida, (UP)-201301. .. Applicant
(through Sh. Ajesh Luthra, Advocate)
Versus
National Technical Research Organisation (NTRO),
UOI & Ors. through :
1. The Chairman, NTRO,
Block-3, Old JNU Campus,
New Delhi-110067.
2. Sh. G.S.N. Raju, Scientist H,
Centre Director, CMMS, NTRO, &
Inquiring Authority, Block-3, Old JNU Campus,
New Delhi-110067.
3. Controller (Administration), NTRO,
Block-3, Old JNU Campus,
New Delhi-110067.
4. Sh. G. Arunachalam, Scientist F,
CMMS, NTRO, & Presenting Officer,
P.O. Box No. 1343, Next to SWCD,
M/s HMT Watches Ltd.,
Jalahali HPO, Bangalore-560013.
5. Director (Estt.), NTRO,
Block-3, Old JNU Campus,
New Delhi-110067.
6. Director (Handling NTRO),
Prime Ministers Office,
South Block, Raisina Hill,
New Delhi-110011. . Respondents
Respondent No. 4 to be served through Respondent No.1.
(through Sh. Rajesh Katyal, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) MA-1111/2015 has been filed by the respondents praying for early hearing of the O.A. and vacation of the stay granted by this Tribunal on 26.08.2014. Since this O.A. has been taken up for final disposal, this M.A. has become infructuous and is disposed of as such.
2. The applicant was working as Deputy Director at Bhuj in NTRO when he was served a charge Memo dated 21.09.2011 containing the following charges:-
ARTICLE-I That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) on 14.06.2010 was found in unauthorized possession of 17 documents (as illustrated in Annexure-II) unrelated to his official duties. He, thereby, caused serious breach of security.
2. Thus, Shri Pawan Kumar violated Departmental Security Instructions-2005 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE-II That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) connected his official computer having official/classified data to internet thereby endangering the security of classified information.
2. Thus, Shri Pawan Kumar willfully violated NTRO Information Security Policy, Departmental Security Instructions-2005, NTRO Security Instructions issued vide NTRO letter No.XXII/S&CI/009/05/PI-3980 dated 13.10.2008 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE-III That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) unauthorizedly installed softwars, namely, Download Accelerator Plus and Skype on his official computer HP S.No.INI 71702P4. Skype software could be used to show documents from office to outsiders.
2. Thus, Shri Pawan Kumar, violated NTRO Information Security Policy, Departmental Security Instructions-2005, NTRO Security Instructions issued vide NTRO letter No.XXII/S&CI/009/05/PI-3980 dated 13.10.2008 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE-IV That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) downloaded and stored pornographic images in his official computer HP S.No.INI 71702P4.
2. Thus, Shri Pawan Kumar, violated the Departmental Security Instructions-2005 and NTRO Security Instructions issued vide NTRO letter No.XXII/S&CI/009/05/PI-3980 dated 13 Oct 2008 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE-V That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) took a photograph of his office and stored the same on his official computer HP S.No.INI 71702P4.
2. Bringing photography equipment and doing photograph in NTRO premises is prohibited in terms of NTRO Security Instructions issued vide NTRO letter No.XXII/S&CI/009/05/PI-3980 dated 13.10.2008 and Departmental Security Instructions 2005. Thus, Shri Pawan Kumar violated Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE VI That the said Shri Pawan Kumar while functioning as Deputy Director, NGO on 14.06.2010 was found in possession of two unauthorized, unaccounted pen drives having classified data and pseudonymous complaints.
2. Thus, Shri Pawan Kumar violated the Departmental Security Instructions-2005, NTRO Security Instructions issued vide No.XXII/S&CI/009/05/PI-3980 dated 13 Oct 2008 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE VII An analysis of the pen drives (two) recovered from Shri Pawan Kumar, the then Dy. Director (NGO) reveals that the pen drives contained following data pertaining to recruitment.
i. A 400 page document containing bio-data of candidates for the post of Scientist-B. ii. A document pertaining to recruitment of DS (SS).
iii. A document about recruitment to the post of Deputy Director (Rs.12,000-16,500/-).
iv. Documents about recruitment to the post of Senior Admin Assistant (Rs.500-9000/-) and Administrative Officer (Rs.8,000-13,500/-).
v. Documents about recruitment of Maj (Retd.) DS Sidhu for the post of External Pilot-UAV (Rs.10,000-15,200) and Shri Vibhav Vikrant for the post of External Pilot-UAV (Rs.8000-13,500/-).
2. The abovementioned documents are extremely detailed and exhaustive and contain references to file notings and circulars which were beyond the official task assigned to Shri Pawan Kumar. Shri Pawan Kumar willfully and unauthorized collected and retained the data to which he was not authorized to have access. Thus, he acted in a manner unbecoming of a Government Servant, violative of Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE VIII That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) in writing pseudonymous/anonymous complaints (two) to PM (CVC), CBI, Cab. Sectt., UPSC & NSA.
.
2. The abovementioned complaints contain information which Shri Pawan Kumar was not official authorized to hold. Thus, Sh. Pawan Kumar willfully and unauthorizedly collected and retained the data and communicated the same unauthorisedly. Thus, he acted in a manner violative of Rule 3(1) and Rule 11 of the CCS (Conduct) Rules, 1964.
ARTICLE IX Shri Pawan Kumar, the then Dy. Director (NGO) made a false statement against Dr. SM Bhaskar in connection with recovery of memorandum issued by NTRO to Shri Rakesh Kumar, Scientist B and Ms. Suruchi Bhateja, Scientist B from him.
2. Thus, Shri Pawan Kumar violated Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE X That the said Shri Pawan Kumar wrote three letters dated 17.06.2010, 19.06.2010 and 23.07.2919 directly to NSA without following proper channel.
2. Thus, Shri Pawan Kumar violated Rule 3(1) of the CCS (Conduct) Rules, 1964. 2.1 On 03.10.2011, the applicant made a representation stating that the charge Memo dated 21.09.2011 was incomplete as it was received by him without Annexure-IV. He requested that complete charge Memo be sent to him. He received the Annexure-IV on 21.11.2011. However, on 29.11.2011, the applicant made another representation stating that the Memo was still incomplete as was evident from abrupt page numbering/missing page numbers & unnumbered Annexure-IV served to him on 21.11.2011. He also filed OA-4506/2011 in Principal Bench of this Tribunal at New Delhi praying for quashing of the aforesaid Memo. This O.A. was disposed of on 23.12.2011 by this Tribunal with the following order:-
After arguing for some time, Mr. Singal, counsel representing the applicant, seeks permission to withdraw this Original Application with liberty to the applicant to make a fresh representation ventilating his grievances which have been taken in present OA, to the concerned authorities.
2. With leave and liberty, as prayed for, present Original Application is dismissed as withdrawn. 2.2 Thereafter, the applicant made a representation on 06.01.2012 to the Disciplinary Authority (DA) in terms of leave and liberty granted by this Tribunal. The respondents appointed Inquiry Officer (IO) and PO vide two separate orders both dated 05.01.2012 and the inquiry against the applicant was commenced. Eight hearings were held by the IO on different dates, the last one being on 21.10.2012. On 25.04.2014, the applicant made another representation to the DA alleging prejudice and open bias against him of the IO. Thereafter he filed this O.A. on 09.07.2014 seeking the following relief:-
(i) Call for Complete Records of the Case and on scrutiny,
(ii) Quash & set aside the impugned Charge Memorandum dated 21.09.2011 issued to the applicant by the respondents.
(iii) Allow O.A. with exemplery cost in view of the fact that applicant has been put to mental trauma due to loss of his reputation, devastating effect on his career & untimely loss of his mother attributed to inhuman attitude of respondents since 14.6.2010.
(iv) Award any other benefits that this Honble Tribunal may deem fit in view of the facts and circumstances of the case taking into consideration the most illegal and arbitrary manner in which Enquiry against the applicant was initiated & is being held with a biased & closed mind by the respondents in violation of applicants Fundamental right guaranteed under Article 21.
(v) Pass any further orders as this Honble Tribunal may deem fit and proper considering the peculiar facts and circumstances of the case.
(vi) Grant such other and further relief as may be deemed fit in the interest of justice.
3. The respondents have filed their reply in which they have stated that charge sheet was issued to the applicant under Rule-14 of CCS(CCA) Rules, 1965 for unauthorizedly possessing 17 documents unrelated to his official duties, connecting his official computer having official/classified data to internet thereby endangering the security of classified documents, unauthorizedly installing soft-wares on his computer, bringing photographic equipment and doing photography in NTRO premises, unauthorizedly using pen drives and keeping classified data in them writing Pseudo/anonymous complaints to high authorities etc. The applicant had earlier filed OA-4506/2011, which was subsequently withdrawn by him on 23.12.2011 with the liberty to make a fresh representation to ventilate his grievances. The respondents have stated that this Tribunal had given no direction to the respondents not to proceed with the inquiry. The DE proceedings were, therefore, taken up against the applicant and eight hearings were held. The inquiry was at the stage of deposition, examination and cross examination of said witnesses. Applicant at that stage made a representation on 05.09.2012 requesting for engagement of legal practitioner as his Defence Assistant. He also requested IO and PO verbally not to hold further hearings till a decision on his request was taken by the DA. However, his request was not acceded to by the DA and he was informed so vide Memo dated 20.02.2013. The applicant then submitted yet another representation dated 19.11.2013 requesting for de novo examination of his representation dated 11.03.2013. This was not acceded to and a reply was sent to him vide Memo dated 06.02.2014. The IO then fixed the date for inquiry on 1st and 2nd May, 2014. The applicant then informed him that he had moved a representation on 25.04.2014 addressed to Honble Prime Minister, who was DA being the Minister-in-Charge in which he had alleged prejudice and open bias of the IO. The DE proceedings were, therefore, stayed till the decision of the DA as per Rules. This representation of the applicant was rejected on 11.08.2014. Before that the applicant approached this Tribunal by filing the present O.A. In this O.A. notice was issued on 14.07.2014. On 26.08.2014, this Tribunal directed that as an interim measure, the inquiry be postponed till further order.
3.1 In this O.A. the applicant has challenged the charge sheet dated 27.09.2011 on the following grounds:-
(i) Decision to initiated the DE against him has not been taken by the DA i.e. Honble Prime Minister as Minister-in-charge of the respondent department.
(ii) The charge sheet has not been approved by the DA.
(iii) The appointment of IO/PO has been done without affording reasonable opportunity to the applicant to submit his defence statement.
(iv) Appointment of IO/PO has not been done by the DA.
4. We have heard both sides and have perused the material on record. Both sides were permitted to file written arguments. Accordingly, they have filed the same and these have been taken on record. Before we go into each of the grounds taken by the applicant to challenge this Memo, we may state that we are aware of various pronouncements of the Apex Court in which they have deprecated the tendency of the various Courts to quash the charge Memo stating that issuance of notice/Memo does not construe passing of any final order against the delinquent. Apex Court has opined that delinquent gets ample opportunity to defend himself as the proceedings against him are carried out under the relevant disciplinary rules. Honble Supreme Court has ruled that the charge sheet/Memo should not be quashed until and unless it is proved that the action taken against the delinquent is without jurisdiction or ex-facie vitiated due to mala fide. The following pronouncements of the Apex Court are relevant in this regard:-
(i) Union of India & Anr. Vs. Ashok Kacker, 1995 Supp.(1) SCC 180, in Para-4 of which it has been held that:-
Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondents application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him.
(ii) Union of India Vs. Uprender Singh, JT 1994(1)SC 658, in Paras 4 to 7 of which it has been held that:-
4.When the matter went back to the Tribunal, it went into the correctness of the charges on the basis of the material produced by the respondent and quashed the charges holding that the charges do not indicate any corrupt motive or any culpability on the part of the respondent. We must say, we are not a little surprised at the course adopted by the Tribunal. In its order dated September 10, 1992 this Court specifically drew attention to the observations in A.N. Saxena2 that the Tribunal ought not to interfere at an interlocutory stage and yet the Tribunal chose to interfere on the basis of the material which was yet to be produced at the inquiry. In short, the Tribunal undertook the inquiry which ought to be held by the disciplinary authority (or the inquiry officer appointed by him) and found that the charges are not true. It may be recalled that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this Court in T. C. Basappa v. T. Nagappa3. It was observed by Mukherjea, J. speaking for the Constitution Bench :
"The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warrant, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of ,certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law."
5.The said statement of law was expressly affirmed by a seven-Judge Bench in Smt. Ujjam Bai v. State of Uttar Pradesh and another AIR 1962 SC 1621 at 1625. The reason for this dictum is self-evident. If we do not keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs English law, the exercise of jurisdiction becomes rudderless and unguided,it tends to become arbitrary and capricious. There will be no uniformity of approach and there will be the danger of the jurisdiction becoming personalized. The parameters of jurisdiction would vary from Judge to Judge and from Court to Court. (Some say, this has already happened.) Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but not by forgetting the fundamentals. You have to build upon the existing foundations and not by abandoning them. It leads to confusion; it does not assist in coherence in thought or action.
6.In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Kamal v. Gopi Nath & Sons5. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
7.Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate.
(iii) Union of India Vs. Kuni Setty Satyanarayana, 2007(1) SCT 452, in paras 12 to 14 the following has been held:-
It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
13. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
14. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
(iv) State of Punjab & Ors. Vs. Ajit Singh, 1997(11) SCC 368, in Para-3 of which the following has been held:-
We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. We are, however, of the view that the High Court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High Court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to the adduced in the disciplinary proceedings. The High Court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High Court. The allegations are based on documents which would have been produced as evidence to prove the chares in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.:
(v) DIG of Police Vs. K. Swaminathan, 1996(11) SCC 498, in Para-4 of which the following has been held:-
It is settled law by catena of decisions of this Court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the Tribunal or the Court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would he a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge sheet supplied are required to be looked into by the Court or the Tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The Tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the Tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this Court in appeals arising out of SLP (C) Nos.19453-63 of 1995 had on February 9, 1996 allowed the appeals, set aside the order passed by the Tribunal and remitted the matter holding that:
"This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this Court in such matters."
(vi) Union of India Vs. Govind Manish, Civil Appeal No. 1442/2011 decided on 07.02.2011 in which the Apex Court held that three-Judge Bench of this Court in the case of Chief of Army Staff Vs. Major Dharam Pal Kukrety, (1985) 2 SCC 412 has laid down that the Courts can interfere with the enquiry proceedings only when it is proved that the action taken by the employer is either without jurisdiction or is ex facie vitiated due to mala fide. 4.1 We proceed to examine each of the grounds taken by the applicant keeping the above pronouncements in mind. The first ground taken by the applicant is that the decision to proceed against the applicant was not taken by the competent authority, which happens to be Honble Prime Minister in this case. The applicant has also alleged that the charge sheet has not been approved by the Honble Prime Minister. In this regard, the applicant has relied on the judgment of Apex Court in the case of UOI & Ors. Vs. B.V. Gopinath (Civil Appeal No. 7761/2013) dated 05.09.2013 in which the charge sheet issued against the delinquent was quashed because it had not been approved by Honble Finance Minister, who was the competent authority in that case. Learned counsel argued that as per Rule-14(2) of CCS (CCA) Rules the decision to initiate departmental proceedings has to be taken by the DA and in the event the DA has not taken such a decision, DE is non-est in the eyes of law. Further, as per statutory rules, Rule-14(3) of CCS(CCA) Rules, the charge sheet prepared by the functionary lower to DA pursuant to the decision of the DA to initiate DE has to be approved by the DA prior to its issue. Learned counsel stated that this position has been laid down by Honble Supreme Court in B.V. Gopinaths case as well as in the case of Chairman-Cum-M.D., Coal India Ltd. & Ors. Vs. Ananta Saha & Ors. (Civil Appeal No. 2958/2011) decided on 06.04.2011. Learned counsel for the respondents, however, contended that the decision to initiate the inquiry proceedings as well as the charge sheet have both been approved by the Honble Prime Minister as Minister-In-Charge of the department. The respondents have thus disputed the averments made by the applicant. To ascertain the truth, we had summoned the relevant file of the department and perused the same in the Court. We find that the decision to initiate DE proceedings as well as issuance of major penalty charge sheet to the applicant has been taken by the Honble Prime Minister himself as is evident from an endorsement made to this effect by an officer of PMO (Prime Ministers Office) in the file of the department.
4.2 We, however, found that both these decisions were taken together by the competent authority. Learned counsel for the applicant submitted that since in the first instance there was no decision to initiate the DE by the competent authority, the framing of charge sheet by lower functionary was void. He argued that non initiation of DE by the competent authority at the initial stage renders all subsequent actions as void and non-est in the eyes of law. The prescribed procedure at the relevant time envisages that the DA has to decide as to whether any disciplinary action is called for on the alleged misconduct and only when decision is taken by the DA independent agency like CVC is consulted to seek its advice. It is only after CVC has agreed with the DA that charges are framed against the concerned official and the same has to be submitted to the competent authority for approval. In the present case, it appears that the first and second stage decision making have been combined. Relying on the judgment of Ananta Sahas case (supra), learned counsel stated that the aforesaid case the approval of DA was only at the third stage, namely appointment of IO/PO. The Apex Court had then quashed the penalty imposed by the DA on the ground that since DE was not initiated by DA all subsequent proceedings would not sanctify the same. Further, learned counsel pointed out that in B.V. Gopinahts case (supra) also Honble Supreme Court has clearly laid down that the approval of DA is required at all three stages, namely, for initiation of DE, for approval of charge sheet and for appointment of IO/PO. He argued that in the instant case since at the first stage approval of DA was not taken, subsequent proceedings also stood vitiated. In this regard, he relied on Para-30 of the judgment of Honble Supreme Court in Ananta Sahas case (supra) in which the following has been held:-
It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls. 4.3 We have considered the aforesaid submissions of the applicants counsel. In the instant case, we find that on the basis of material presented to him Chairman, NTRO approved initiation of DE proceedings against the applicant. Thereafter, a charge sheet was framed and the matter was submitted to Honble Prime Minister for approval as Minister-In-Charge of the department. Honble Prime Minister approved the charge sheet and the proposal to issue the same to the applicant. In our opinion, inherent in this decision of the Honble Prime Minister is the decision to initiate DE proceedings against the applicant. It cannot be imagined that proposal to issue charge sheet would be approved without approving the proposal to initiate DE proceedings. Thus, in our opinion, approval of Honble Prime Minister is available under Rule-14(2) of CCS(CCA) Rules and under Rule-14(3) for issuance of charge sheet to the applicant.
4.4 As far as the contention of the applicant that framing of draft charge sheet by lower functionaries was void and non-est because when they were framing this charge sheet, no decision of the competent authority was available for initiating of DE proceedings is concerned, we are not inclined to agree with the same. This is because the disciplinary proceedings commenced only with the issuance of the charge sheet. Before that stage, there is no opportunity for the delinquent to have any say in the matter and no prejudice is cause to him if approval of DA is taken under Rules-14(2) & 14(4) of the CCS(CCA) Rules in one go. In this regard, we rely on Para-25 of the judgment of Honble Supreme Court in the case of Ananta Sahas case (supra) wherein the following has been held:-
There can be no quarrel with the settled legal propostion that the disciplinary proceedings commence only when a chargesheet is issued to the delinquent employee. (Vide :Union of India etc. etc. v. K.V. Jankiraman etc. etc., AIR 1991 SC 2010, and UCO Bank & Anr. v. Rajinder Lal Capoor, (2007) 6 SCC 694). 4.5 In the instant case, it is true that the draft charge sheet was framed on the directions of Chairman, NTRO, yet the matter can be regarded to be only at proposal stage till it was finally approved by Honble Prime Minister.
4.6 Learned counsel for the applicant has also placed reliance on the judgment of Honble Supreme Court in B.V. Gopinaths case (supra) to emphasis that the approval of DA is required at each stage. We have gone through the facts of B.V. Gopilanths case and we find that in that case while the decision to initiate DE proceedings against the delinquent was taken by Honble Finance Minister, the charge sheet was not approved by him. In the instant case, the facts are different. Here, there is no doubt that the charge sheet has been approved by Honble Prime Minister. Implied in this decision is the decision of Honble Prime Minister to initiate DE proceedings.
4.7 In this regard, the applicant also argued that mere signature of the DA shall not meet the legal requirement of granting approval to the proposal as reasons are required to be recorded by the DA at all distinct relevant stages. Learned counsel for the applicant again relied on the judgment of Honble Supreme Court in Anant Sahas case (supra), in Para-28 & 29 of which the following has been held:-
28. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is 1 nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
29. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the Statutory Rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the inquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the inquiry officer or the authority.
(Vide Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).
24.8 We have gone through the aforesaid judgment. We find that Para-28 of the same lays down that DA should pass some positive order taking into consideration the material on record and not merely sign on the proposal to initiate DE or issue charge sheet in a routine manner so that application of mind of DA becomes evident. The applicant in this regard also relied on the judgment of this Tribunal in OA-3486/2010 along with OA-4212/2011 pronounced on 21.01.2014, in Para-8 of which the following has been held:-
8. From the aforesaid notings, it is very much clear that even though the Disciplinary Authority, namely, the Honble Minister has appended his signature in approval for initiating the disciplinary proceedings against the Applicant, he has not applied his mind at all. As held by the Apex Court in Ananta Saha and Others (supra), the approval to initiate disciplinary proceedings and the approval of the charge sheet against an employee cannot be done as a mechanical exercise. On the other hand, there should be a conscious decision on the part of the Disciplinary Authority whether any disciplinary action should be initiated against the Applicant or not. Reconfirming the aforesaid legal position, the Apex Court has also dismissed the SLP filed against the order of the High Court in B.V. Gopinaths case (supra). 4.9 In the instant case, we noticed from the record that the Honble Prime Minister has not merely appended his signature on the proposal. The officer of PMO who has made an endorsement on behalf of the Honble Prime Minister has remarked that the proposal to issue a major penalty charge sheet under CCS(CCA) Rules to the applicant has been approved by the Honble Prime Minister. Thus, it is clear that the DA did not routinely sign the proposal and was well aware and conscious of the decision being taken. We, therefore, do not find infirmity in this regard in the action of the respondents.
4.10 The applicant has also argued that IO and PO have been appointed without affording reasonable opportunity to the applicant to submit his defence statement. He also submitted that competent authority i.e. Honble Prime Minister has not approved appointment of IO and PO. As far as the second issue is concerned, we have perused the departmental record and are satisfied that IO and PO have been appointed with the approval of Honble Prime Minister. We, therefore, do not propose to deal any further with this issue. However, as far as appointment of IO and PO without affording reasonable opportunity to the applicant to file his defence statement is concerned, we find from the facts narrated above that when the Memo was issued to the applicant on 21.09.2011, he was asked to submit his written submission of defence within 10 days of receipt of the Memo. Thus, he was afforded a reasonable opportunity of doing so. However, instead of replying to the Memo, he made a representation on 03.10.2011 stating that the charge Memo received by him was incomplete as it did not contain Annexure-IV. The Annexure-IV was provided to him on 21.11.2011. However, on 29.11.2011, the applicant made another representation alleging that the Memo was incomplete as there were many missing pages in Annexure-IV. Thus, even at that stage, he did not submit his written statement of defence. Instead he chose to file OA-4506/2011 before this Tribunal. This was thereafter permitted to be withdrawn on 23.12.2011 by this Tribunal with leave and liberty to the applicant to make a fresh representation ventilating his grievances to the concerned authorities. The applicant then submitted his representation addressed to the DA on 06.01.2012. From the records it appears that this representation has so far not been considered as IO and PO were appointed by the respondents by two separate orders both dated 05.01.2012 i.e. on a date before the applicant had submitted his representation.
4.11 Even then, it cannot be said that reasonable opportunity has not been afforded to the applicant to submit his written statement of defence as the Memo was issued to him on 21.09.2011 and IO and PO were appointed on 05.01.2012. Thus, there was sufficient time gap available to the applicant to submit his written statement of defence admitting or denying the charges. Instead of doing so he chose to make representations regarding missing pages in Annexure-IV. Moreover, the prayer in this O.A. is for quashing charge Memo issued to the applicant. The appointment of IO and PO is a subsequent stage in the proceedings. Even if there is any infirmity in such appointment, it would not have the effect of vitiating the charge sheet.
4.12 Nevertheless, learned counsel for the applicant argued, consideration of the written statement of defence is not a mere formality. At that stage, the DA is required to apply his mind to see, if any, or of all the charges given in the Memo need to be dropped or modified. In this regard, learned counsel relied on the instructions issued by the Governmetn vide O.M. No. 11012/2/79-Estt.(A) dated 12.03.1981 and O.M. No. 11012/8/82-Estt. (A) dated 08.12.1982 wherein the following has been laid down:-
(5) Whether charges can be dropped at the stage of initial written statement of defence.- A question has been under consideration whether Rule 14(5)(a) of the CCS(CCA) Rules, 1965, permits the dropping of charges by the Disciplinary Authority after considering the written statement of defence submitted by the accused Government servant under Rule 14(4) ibid. The question has been considered in consultation with the Ministry of Law and the position is clarified as under-
(a) The Disciplinary Authority has the inherent power to review and modify the articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused Government servant under Rule 14(4) of the CCS (CCA) Rules, 1965.
(b) The Disciplinary Authority is not bound to appoint an Inquiry Officer for conducting an inquiry into the charges which are not admitted by the accused official but about which the Disciplinary Authority is satisfied on the basis of the written statement of defence that there is no further cause to proceed with.
5.1 Learned counsel also relied on the judgment of Honble Supreme Court in the case of State of Punjab etc. Vs. V.K. Khanna & Ors., 2000(5) SLR 734, para-34 of which reads as under:-
The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record. 5.2 He also relied on the judgment of this Tribunal in OA-1377/2008 dated 26.02.2009 , Para-24 of which reads as follows:-
24. In this view of the matter along with articles of charge a list of documents and witnesses has to be served upon and only then the EO is appointed. The documents sought for by the applicant is not with a view to finally defend the charges but at the outset to seek reasonable opportunity to be delivered the documents which were forming basis of the imputation against him with a pious hope that on receipt of the documents which were stale and the chargesheet being inordinately delayed apart from denying the documents a reasonable valid explanation, which if considered apt by the DA the enquiry can be dropped at this stage and there is no requirement of further continuing the proceedings. GIMHA OM dated 12.3.1981 and 8.12.1982 deal with dropping of the charges at the initial stage of defence where it is stipulated that the DA has inherent powers to drop the charges and is not bound to appoint an EO if it is satisfied on the basis of written statement of defence that there is no further cause to proceed with. However, certain formalities are to be completed like CVC consultation. 5.3 In view of the aforesaid submissions, we are of the opinion that while it cannot be held that reasonable opportunity has not been afforded to the applicant to submit his defence, yet, considering the facts and circumstances of the case, in the interest of justice, we direct that the respondents consider his representation dated 06.01.2012, which has remained undisposed of so far. The applicant therein has pleaded for dropping of charges besides making certain other prayers. The respondents may take a view whether to drop/modify any of the charges. We also direct that inquiry should proceed further only after the aforesaid representation of the applicant has been considered.
6. From the material placed before us, we find that the DE proceedings against the applicant, which commenced with issue of charge Memo dated 21.09.2011 have not progressed and are still at the stage of examination of prosecution witnesses. The last hearing was held in October, 2012. This delay has been caused largely due to tendency of the applicant to make repeated representations on one pretext or the other or approach this Tribunal at interlocutory stage. We notice that charge sheet to the applicant was issued on 21.09.2011. Subsequently, inquiry against him commenced and eight hearings were held. The applicant filed this OA in July 2014 i.e. after three years of issue of the charge Memo challenging the same. No new fact had come to the notice of the applicant which could have possibly made him believe that the charge Memo had not been approved by the competent authority. Yet he filed this O.A. on that ground more as a fishing inquiry. We deprecate this tendency of the applicant and direct that he should fully cooperate with the inquiry so that the same can be concluded expeditiously.
7. Thus, while the prayer of the applicant for quashing the charge Memo dated 21.09.2011 is declined, we dispose of this O.A. with the direction to the respondents to consider the representation of the applicant dated 06.01.2012 and proceed with the inquiry only thereafter. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/