Central Administrative Tribunal - Delhi
Hari Shankar vs Union Of India on 23 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.267/2008 New Delhi, this the 23rd day of December, 2008 HONBLE SHRI JUSTICE V.K.BALI, CHAIRMAN HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A) Hari Shankar S/o Shri Ram Chand Aged 58 years (DOB: 1/4/1949) R/o B-1/28A Raja Puri Gali No.5, Uttam Nagar New Delhi 110 059. Applicant (By Advocate: Dr. D.C.Vohra) Versus Union of India Through The Foreign Secretary to the Government of India Ministry of External Affairs South Block New Delhi 110 001. .. Respondent (By Advocate: Shri A.K. Bhardwaj) ORDER By Shri Shailendra Pandey, Member (A):
The applicant has sought the following reliefs in this OA:
Quash and set aside the punishment orders dated 28.8.2007 and 5.11.2007 (Annexure A1 and A3), compulsorily retiring the applicant from service, etc. Direct the respondent to reinstate him in service from the date of the illegal and unconstitutional order dated 28.8.2007 with all consequential benefits in the matter of payment of the arrears of his pay and allowances with interest @ 12% per annum and allow postings and promotion, if due, and also to allow him to remain in the service till his normal retirement, which is due on 31.03.2009.
2. The brief facts of the case are that major penalty proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were started against the applicant, Shri Hari Shankar an Assistant in Grade IV of the General Cadre of the Indian Foreign Service (Branch-B), Ministry of External Affairs, for absenting himself from duty unauthorisedly for over two years after availing of one-year ex-India leave in Chicago (USA) and for not complying with Government orders directing him to report for duty.
3. The following charges were issued vide charge memorandum No.Q/Vig/842/04 dated 23.09.2004 (Annexure R-1):
ARTICLE I That the said Shri Hari Shankar has been absenting himself unauthorisedly since 8 August 2003, after availing of Ex-India leave in Chicago (USA).
By his above act, Shri Hari Shankar, has exhibited lack of devotion to duty and conduct unbecoming of a Government Servant thereby contravening Rules 3 (1)(ii) and (iii) of CCS (Conduct) Rules, 1964.
ARTICLE II That the said Shri Hari Shankar, did not comply with the Government of Indias instructions directing him to report for duty at the Headquarters of the Ministry of the External Affairs.
By his above act, Shri Hari Shankar, has exhibited lack of devotion to duty and conduct unbecoming of a Government servant thereby violating Rules 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964.
4. As the applicant pleaded not guilty, an inquiry into the charges was ordered by the disciplinary authority. The inquiry was held at the Headquarters of the Ministry in New Delhi (as the applicant had reported for duty on 08.11.2005). In his inquiry report dated 04.04.2006 (Annexure R3) and supplementary inquiry (held on account of certain objections raised by UPSC) report dated 21.12.2006 (Annexure R4), the inquiry officer held the Charge-I as proved albeit with two mitigating factors, i.e., severe illness of his wife and non-availability of valid passport. Charge-II was held to be not proved because the applicant had reported for duty at Headquarters on 08.11.2005. The disciplinary authority, disagreeing with the findings of the Inquiry Officer, issued Memorandum dated 11.07.2006 (Annexure R6)/6.2.2007 (Annexure-R7) to the applicant, giving reasons for differing with the findings of the Inquiry Officer and forwarded to him the inquiry report/supplementary inquiry report. In response, the applicant submitted representations dated 14/18.07.2006 (Annexure R8)/09.02.2007 (Annexure R9) stating that he was forced to stay in USA beyond the period of sanctioned ex-India leave on account of serious illness of his wife and non-availability of valid travel documents. The representation of the applicant to the findings of the Inquiry Officer and the Disciplinary Authority was considered and the case records were forwarded to UPSC for its advice vide letter dated 10.08.2007 (Annexure R10). The UPSC advised imposition of penalty of compulsory retirement from service on the applicant and, accepting this advice, the penalty of compulsory retirement was imposed on the applicant vide office Memorandum dated 28.08.2007 (Annexure R11). Thereafter, the applicant made a Review Petition against the order dated 28.08.2007, to the President of India under Rule 29A of the CCA (CCA) Rules, 1965 on 05.10.2007 (Annexure R12), which was rejected vide memorandum dated 5.11.2007 (Annexure R13).
5. It is pertinent to mention here that the intervening period from 07.08.2002 to 07.11.2005 had been regularized vide Officer Order dated 22.10.2007 (Annexure R14), wherein it had been mentioned that the period from 08.08.2003 to 05.11.2005 would be treated as dies-non under FR 17(A) but that the dies non spell will not amount to forfeiture of past services for pensionary benefits.
6. The applicant has challenged the impugned order of compulsory retirement on various grounds ( given at para 5 of his OA), which inter alia, mention the following:
(i) that the respondent has violated the statutory rules by initiating the disciplinary proceedings on frivolous grounds and, in spite of the clean chit given by the inquiry officer, twice differed with the report for which there was no provision in the statutory rules.
(ii) that the order was arbitrary as it ignored that he was throughout willing to join his duties as per the orders of the Ministry and because his over stay in Chicago was on account of serious illness of his wife and the refusal of the Ministry to issue a valid travel document after his passport had expired.
(iii) that he had been illegally and unconstitutionally retired compulsorily even though he had joined his duties at Headquarters as ordered by the respondents who had subsequently regularized the period of unauthorized absence as dies-non without break in service.
(iv) In his case the Ministry insisted on travel on an Emergency Certificate although he alleges that in similar circumstances various other staff of the Ministry returned unauthorizedly from abroad were allowed to join duties and were allowed to travel on their official/diplomatic passports.
(v) that the punishment awarded to him is very harsh, arbitrary, malafide, vindictive and discriminatory and is patently in violation of Articles 14, 16 and 311 of the Constitution and against all cannons of justice and fair play.
7. The Respondent has contested all the grounds and has stated that in spite of repeated notices the applicant did not join duty at Headquarters as directed by the Ministry immediately on expiry of his ex-India leave , that there was no valid justification for him to remain on unauthorized absence from duty in the USA for a long period of 2 years 3 months and that his subsequent joining back does not absolve him of his unauthorized absence from duty for more than 2 years. They have also said that the plea of the applicant that he could not travel back to India as his passport was not renewed, is facetious and is untenable, and he was aware that rules provide for grant of official passport only for the currency of tenure in a Mission/Post abroad and sanctioned leave, if any, and in case of unauthorized absence the rules provide for issue of an Emergency Certificate for travel back to India.
8. While the applicant was taking us through the case, it was seen that after receipt of the inquiry officers findings (contained in his report dated 04.04.2006 Annexure R-3), the disciplinary authority disagreeing with the findings of the inquiry officer in respect of the Article of Charges I and II of the chargesheet, issued a show cause notice (Memorandum No.Q/VIG/842/2/04 dated 11.07.2006 Annexure R6) to the applicant asking him to submit his reply within 15 days of the receipt of that letter. A second show cause notice (Memorandum No.Q/VIG/842/2/04 dated 6th February, 2007 Annexure R7) was also issued after receipt of the supplementary inquiry report (held on account of certain objections raised by the UPSC) dated 21.12.2006 (Annexure R4), which reiterated verbatim the view and grounds in the earlier show cause notice. A perusal of the above show cause notice would show that the disciplinary authority had already made up its mind and come to a final view in the matter before giving the opportunity to the applicant. This fact itself is sufficient to vitiate the order of the disciplinary authority as it violated the requirement of coming to a final conclusion only after considering the reply of the applicant to the show cause notices. Thus, at this stage, an infirmity crept into the disciplinary proceedings. We propose to discuss this aspect in detail.
9. Rule 15 of the CCS (CCA) Rules, 1965 which deal with the action to be taken on the inquiry report are reproduced below:
(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 provisions of rule 14, as far as may be.
(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiry Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(2-A) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4).
10. While the disciplinary authority has full authority to disagree with the findings of the inquiry officer on any Article of Charge, the principles of natural justice dictate that an opportunity of hearing should be given to the charged officer before the disciplinary authority finally disagrees with the findings of the inquiring authority. It is necessary to afford this opportunity to the charged officer to ensure that the findings recorded by the inquiry officer as also the final decision of the disciplinary authority does not suffer from any error and takes into account all relevant aspects, including those that the charged officer feels are relevant to the issue at hand. The disciplinary authority thus has to communicate to the delinquent officer the tentative reasons for disagreeing with the findings of the inquiring authority so that the charged officer may further indicate, if he so feels, that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the inquiry authority are not germane and the findings of the charge not having been proved already recorded by the inquiry officer are not liable to be interfered with. The important thing to be borne in mind is that the disciplinary authority should form only a `TENTATIVE view in the matter and communicate to the charged officer the reasons for his tentative view/disagreement and, only after the charged officer responds to the reasons given, should the disciplinary authority, after carefully evaluating the entire evidence of the case including the points raised by the charged officer, come to a FINAL view in the matter. The following observations of the Honble Apex Court in Yoginath D. Bagde vs. State of Maharashtra and Another, (1999) 7 SCC 739 are relevant in this context:
30. Recently, a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Mishra (1998) 7 SCC 84 : AIR 1998 SC 2713 : (1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009), relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit (1964) 2 SCR 1 : AIR 1963 SC 1612; Institute of Chartered Accountants of India v. L. K. Ratna (1986) 4 SCC 537 : (AIR 1987 SC 71) as also the Constitution Bench decision in Managing Director, ECIL, Hyderabad v. B. Karunakar (1993) 4 SCC 727 : (1994 AIR SCW 1050 : AIR 1994 SC 1074 : 1994 Lab IC 762) and the decision in Ram Kishan v. Union of India (1995) 6 SCC 157 : (1995 AIR SCW 4027 : AIR 1996 SC 255), has held that (AIR 1998 SC 2713 : 1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009, para 17) :
"It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
The Court further observed as under: (SCC p.96, para 18) "When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed."
The Court further held that the contrary view expressed by this Court in State Bank of India v. S. S. Koshal, 1994 Supp (2) SCC 468 : (1994 AIR SCW 2901) and State of Rajasthan v. M. C. Saxena (1998) 3 SCC 385 : (1998 AIR SCW 965 : AIR 1998 SC 1150 : 1998 Lab IC 1038) was not correct.
31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. (Emphasis supplied)
11. Thus, it is clear that requirements of natural justice dictate that the disciplinary authority should form only a tentative view when he disagrees with the findings of the inquiry officer, then give a fair opportunity to the charged officer to explain his case and should form a final opinion only after receipt of the reply of the charged official to the show cause notice issued in this regard. This is extremely important as there is always a lurking suspicion in the mind of the charged officer that the disciplinary authority may not be objective and that he may not be treated fairly.
12. In the case on hand, the inquiry officer had recorded his findings as below (Page 170):
It is therefore the considered view that Shri Hari Shankar did overstay in Chicago but it was due to compelling reasons on account of (a) severe illness of his wife, and (b) non-availability of valid passport, the circumstances which have made the charges of his overstay mitigating and, consequently leading to conclusion that a lenient view should be taken. After receipt of this report, the disciplinary authority issued charge memorandum dated 11.07.2006, which reads as under:
The documentary evidence produced by CO to justify his unauthorized absence has already been sympathetically considered by the Ministry. He was not given an extension of leave beyond 7th August 2003. Therefore, his absence from duty from 8th August 2003 is unauthorized.
The COs contention that traveling to India on Emergency Certificate would have made Customs clearance is not tenable as he would have been given a letter by Administration that he was returning to India on transfer. It is the policy of GOI not to renew the passport of relieved officials beyond the approved period of ex-India leave.
That the CO failed to comply with Government orders is true as he did not join back at headquarters as directed by Ministry immediately after expiry of his leave. The fact that he has joined now does not absolve him of his delay, by nearly three years, in joining back to work.
(Emphasis supplied)
13. From the above, it would be seen that the disciplinary authority had already made up his mind finally with regard to the findings in this case. He had in fact over reached himself in coming to a definite conclusion before issue of the show cause notices dated 11.07.2006 and 6.2.2007 that the charged officers absence from duty on 08.08.2003 was unauthorized and that he had failed to comply with the Government orders to join back at Headquarters after expiry of his leave and the fact that he joined subsequently does not absolve him of the delay in this regard.
14. The respondents counsel argued before us that this was not a case of disagreement with the findings of the inquiry officer. He also contended that the findings need not be tentative and that in any case no final view was taken in the show cause notice and that it only mentioned the grounds on which the disciplinary authority would decide the issue and that the same were accordingly duly communicated to the charged officer to enable him to reply to these and represent his case.
15. We are unable to agree with the above contentions of the respondents counsel.
The contention of the respondents counsel that this is not a case of disagreement is not correct as the show cause notice itself states that The Disciplinary Authority disagrees with the findings of IO in respect of Article I and Article II of the charge sheet ... In their counter also, the respondents, in reply to para 4.17 of the OA, have asserted that The disciplinary authority differed with the findings of the inquiry officer and conveyed reasons for the same to the applicant in terms of Rule 15 (2) of CCS (CCA) Rules, 1965.
Further, with regard to Article I of the charge, the inquiry officers findings were that Shri Hari Shankar (the applicant) did overstay in Chicago but it was due to compelling reasons on account of (a) severe illness of his wife, and (b) non-availibility of valid passport, the circumstances which have made the charges of his overstay mitigating. The sum and substance of the inquiry officers findings with respect to Article I, therefore, are that in view of the mitigating circumstances mentioned coupled with the fact that the applicant had not broken contact with his office (mentioned in his report), his absence was not willful, and should not, therefore, be considered as unauthorized. This has been disagreed to by the disciplinary authority.
With regard to Article II, there is also disagreement as the inquiry officer held that Article II is not applicable in view of the fact that the charged officer has since represented for duty on 28.11.2005 but the disciplinary authority has disagreed and stated that the CO failed to comply with Government orders is true as he did not join back at headquarters as directed by Ministry immediately after expiry of his leave. The fact that he has joined now does not absolve him of his delay, by nearly three years, in joining back to work.. Thus, we are unable to accept the contention of the respondents that this is not a case of disagreement.
The contention of the respondents counsel that while disagreeing with the inquiry officers findings, the disciplinary authoritys findings need not be tentative is also not acceptable in view of the legal position discussed in paras 10 and 11 above.
Finally, we are also not able to agree, for the reasons given below, with the last contention of the respondents counsel that no final view was taken in the show cause notice (s) issued to the applicant and these mentioned only the grounds on the basis of which the disciplinary authority was to decide the issue and that this was communicated to the charged officer as required to enable him to represent against the same.
16. It is well settled law that in conformity with the principles of natural justice no decision prejudicial to a party should be taken without affording the party concerned an opportunity to have his say with regard to the issues at hand and the material on the basis of which certain decisions are proposed to be arrived at. In the case on hand, there is not even a whisper or suggestion that the disagreement and the findings are tentative and not final. No words such as `prima-facie or `it appears have been used in the show cause notices. On the other hand, there is a very categorical assertion in clear, explicit and unambiguous terms that his absence from duty is unauthorized and that the fact that he has joined now does not absolve him of his delay by nearly three years in joining back to work.
17. In this view of the matter, we are constrained to hold that the disciplinary authority had already come to a final conclusion in the matter when he decided to disagree with the inquiry officers finding and issued the show cause notices dated 11.07.2006 and 06.02.2007 and the issue of the notices would thus tantamount to being empty formalities and accordingly all action from this stage suffers from the vice of non-compliance of the doctrine of natural justice.
18. Therefore, without going into the merits of the case, on account of this technical infirmity alone, the OA has to be allowed. Accordingly, the punishment orders dated 28.08.2007 and 5.11.2007 compulsorily retiring the applicant from service are quashed and set aside and the matter is remitted back to the respondents who shall be at liberty, if so advised, to proceed afresh in the matter from the stage the technical infirmity crept in, i.e., show cause notice dated 11.07.2006, and in that event we direct that the fresh proceedings shall be completed within a period of two months from the date of receipt of a copy of this order. As the punishment orders dated 28.08.2007 and 5.11.2007 have been set aside only on ground of a technical infirmity, consequential benefits to the applicant shall abide the final order passed by the competent authority.
19. The OA is disposed of as above. No costs.
(Shailendra Pandey) (V.K. Bali)
Member (A) Chairman
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