Central Administrative Tribunal - Delhi
Raj Kumar vs M/O Commerce on 2 June, 2016
1
OA No.4672/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.4672/2014
Reserved On26.05.2016
Pronounced On:02.06.2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. V. N. Gaur, Member (A)
Raj Kumar,
aged 52 years,
S/o Late Shri W.R. Jassal,
R/o H. No. 89, Type-III,
North West,
Moti Bagh, New Delhi.
Working as Upper Division Clerk,
Ministry of Commerce and Industry,
Department of Industrial Policy & Promotion,
Udyog Bhawan,
New Delhi-110001. .....Applicant
(By Advocate Shri R.N. Singh)
Versus
1. Union of India through
Ministry of Commerce and Industry,
Department of Industrial Policy & Promotion,
Udyog Bhawan,
New Delhi-110001.
(Through: The Secretary).
2. Shri P. Bhardwaj,
Under Secretary & Inquiry Officer
(to be served through respondent No.1). ..Respondents
(By Advocate: Shri N.D. Kaushik)
ORDER
Justice M. S. Sullar, Member (J) The challenge, in the instant Original Application (OA), filed by the applicant, Shri Raj Kumar, Upper Division Clerk (UDC) is to the impugned Memorandum dated 11.10.2011 2 OA No.4672/2014 (Annexure-A), statement of Articles of Charge (Annexure-I) and imputation of misconduct (Annexure-II).
2. The matrix of the facts, culminating in the commencement & relevant for disposal of the present O.A., and emanating from the record, is that applicant, while working as UDC, in the Department of Heavy Industry in the year 2000, had tampered the approvals given by the Joint Secretary for getting the tiling work done in the rooms of Udyog Bhawan, under the Department of Heavy Industry. Consequently, he was departmentally dealt under the provisions of Central Civil Services (Classification, Control & Appeal) Rules, 1965 [hereinafter to be referred as "CCS (CCA) Rules"] for the following charges:-
"That the said Shri Raj Kumar, while functioning as UDC in GA Section of Department of Heavy Industry during the year 2000 had tampered the approvals given by the then Joint Secretary(GA) for getting the tiling work done in certain rooms of Udyog Bhawan under the charge of Department of Heavy Industry (Room Nos. 156, 117-A, 275, 480, 123-B, 124-C, 282 and 184) inasmuch as the name of the contractor to whom the job was proposed to be given was obliterated by applying white fluid and in its place the name of some other contractor was written in hand. Thereafter, the work was assigned to the contractor whose name was planted in place of the original name. Shri Raj Kumar has infringed Rule 3 of the CCS (Conduct) Rules, 1964".
3. Initially, the inquiring authority held that the charges against the applicant were not proved but the Disciplinary Authority (DA) disagreed with the inquiring authority and issued a note of disagreement on 08.07.2009. In pursuance thereof, applicant submitted his representation. After considering the representation of the Charged Officer (CO), the DA decided to remand the matter to the inquiring authority for further enquiry 3 OA No.4672/2014 from the stage of introduction of prosecution documents and their inspection by the CO.
4. Thereafter, the inquiring authority gave its report on 14.01.2010 and concluded that charges stand proved against the applicant. The inquiry culminated in the punishment of 'removal of the applicant from service' vide order dated 22.07.2010 passed by the DA. The order of punishment was passed by the President because it was based on the joint inquiry report against the applicant, a UDC, and his co- delinquent M.R. Bali, Under Secretary.
5. The applicant did not feel satisfied and initially preferred OA bearing No.3399/2010. After completion of all the codal formalities, the plea of applicant with regard to delay in issuing the Memorandum of Charge was negated. However, the impugned punishment orders (therein) were held to be illegal on account of (i) remanding the case by the DA to the inquiring authority, in contravention of Rule 15(1) of CCS (CCA) Rules,
(ii) Articles of Charge and the Imputation of Misconduct also suffer from the flaw that there is no mention of the name of the contractor to whom the work was originally assigned and in whose place the name of M/s. Evergreen was substituted and
(iii) the competency of DA to pass the punishment order.
6. As a consequence thereof, OA No.3399/2010 was allowed vide order dated 30.05.2011 (Annexure A-8) by a Coordinate Bench of this Tribunal. The operative part of which, is as under:- 4 OA No.4672/2014
"19. On the basis of above consideration, the impugned orders cannot be maintained and are accordingly quashed and set aside. However, the charge against the Applicant is serious and in our considered opinion it would be necessary that fresh inquiry should be held from the stage of framing of the charge against him. Since the impugned orders have been set aside on technical grounds, we are not giving any directions about consequential benefits, which would abide by the decision in the fresh departmental inquiry. The Respondents are directed to complete the inquiry within six months of the receipt of a certified copy of this order. In the facts and circumstances of the case there will be no orders as to costs".
7. Sequelly, Review Application bearing No.215/2011 filed by the applicant was dismissed as well vide order dated 09.09.2011 (Annexure A-9) by this Tribunal.
8. Thereafter, on remand of the case by this Tribunal, the fresh Articles of Charge (Annexure-I) and the Statement of Imputation of Misconduct in support of the Article of Charge (Annexure-II) were served on the applicant, which, in substance, is as under:-
"Article That the said Shri Raj Kumar, while functioning as UDC in GA Section of Department of Heavy Industry during the year 2000 has tampered the approvals given by the then Joint Secretary (GA) for getting the tiling work done in certain rooms of Udyog Bhavan under the charge of Department of Heavy Industry (Room Nos.156, 117-A, 275, 489, 123-B, 124-C, 282 and 184) in as much as the name of agency to whom the job was given was obliterated by applying the white fluid and in its place the name of some other contractor was written in hand. Thereafter, the work was assigned to the contractor whose name was planted in place of the original name. The act of Shri Raj Kumar is in contravention and infringement of Rule 3(1)(i) (ii) & (iii) of CCS (Conduct) Rules, 1964."
9. Aggrieved thereby, the applicant has preferred the instant OA to challenge the impugned Memorandum, Article of Charge and Statement of Imputation, by invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985 on the following grounds:-
5OA No.4672/2014
"(i) Because the impugned charge memorandum has been issued by the incompetent authority and the same has also been drawn or approved by the competent authority and, therefore, the same is violative of Rule 14(3) and 14(4) of CCS (CCA) Rules, 1965 and, therefore, nullity in the eyes of law in view of the law laid down by the Hon'ble Apex Court in the case of U.O.I. & Others Vs. B.V. Gopinath (2014) 1 SCC 351.
(ii) Because the applicant has neither been afforded opportunity of cross-examination of the witnesses nor has been given opportunity of state his defence, lead his evidence nor has been generally questioned by the respondent No.2/Inquiry Officer and, therefore, the impugned inquiry report is violative of provisions of Rule 14(14), 14(16), 14(17), 14(18) of CCS (CCA) Rules, 1965 and also the inquiry report is in utter violation of principle of natural justice.
(iii) Because the inquiry officer has based his impugned inquiry report on the surmises and conjectures and has ignored the evidence on record and that too the evidence adduced on behalf of the respondent No.1. Therefore, the impugned inquiry report is no report and is nullity in the eyes of law. Reliance is also placed on law laid down by the Hon'ble Apex Court in "M.V. Bijlani & Ors. UOI & Ors." Reported in 2006 (8) SCC 8 (para 25).
(iv) Because the inquiry officer/ respondent No.2 herein has not maintained the daily order sheets of all the hearings and therefore also the impugned inquiry report is violative of the relevant rules and instructions on the subject.
(v) Because after closure of the prosecution case/evidence, the respondent No.2 was required to ask the applicant to lead his evidence or in case the applicant did not intend to lead any defence evidence, the inquiry officer was required to examine or question him about the circumstances of the case as required under the provisions of Rule 14 of CCS (CCA) Rules, 1965, however, he did none of the same and therefore the impugned inquiry report is nullity in the eyes of law and is liable to be quashed.
(vi) Because the action/inaction of the respondents have caused tremendous hardships and agonies to the applicant and the same deserves to be quashed and put to quietus by this Hon'ble Tribunal.
(vii) Because the impugned inaction of the respondent is violative of the relevant instructions of the nodal department, i.e., DOP&T as well as CVC [Annexure -A-19 (colly)].
(viii) Because the impugned Memorandum/OM/inaction is result of non-application of mind and colourable exercise of powers vested under the respondent.
(ix) Because the Memorandum/OM/inaction of the respondent is illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India.
(x) Because the impugned Memorandum/OM/inaction of the respondent is nullity in the eyes of law.6 OA No.4672/2014
(xi) Because the impugned Memorandum/OM/inaction of the respondent are violative of the principles of equity, justice and good conscience.
(xii) Because on account of illegal and arbitrary action on part of respondent, the applicant and his family is facing hardships and humiliations.
(xiii) Because the impugned action of the respondent in keeping the disciplinary proceedings pending for such a long period is illegal, arbitrary and discriminatory."
10. On the basis of the aforesaid grounds, the applicant has sought to quash the impugned Memorandum (Annexure-A), Articles of Charge (Annexure-I) and Statement of Imputation of Misconduct (Annexure-II) in the manner indicated hereinabove.
11. The contesting respondents refuted the claim of the applicant and filed the reply, wherein the factual matrix was admitted. However, it was pleaded that, applicant while functioning as UDC in GA (Section) of Department of Heavy Industry, had tampered with the official records of the approvals given by the then Joint Secretary in the year 2000 for getting the tiling work done in certain rooms of Udyog Bhawan, under the charge of Department of Heavy Industry. As a result, name of the contractor to whom job was proposed to be given was obliterated by applying white fluid and in its place, the name of another contractor was written in hand. He was served with the order for holding disciplinary proceedings against him. After following due procedure, the punishment order was rightly passed by the competent authority. It was admitted that the Tribunal did not grant any relief and ordered to hold further inquiry after giving opportunity to the CO to present his defence.
7OA No.4672/2014
12. According to the respondents, further enquiry proceedings were started. Thereafter, a fresh charge sheet was framed and issued to the applicant on 11.10.2011 (Annexure- A) along with the other related documents. It was alleged that keeping in view the gravity and seriousness of the charge, the disciplinary proceedings against the applicant were initiated for imposing a major penalty under Rule 14 of the CCS(CCA) Rules, as such it was expedient to consult the Union Public Service Commission (UPSC) before issuing the final order in this case. Thereafter, fresh disciplinary proceedings were initiated against the applicant, in accordance with the rules.
13. The respondents further claimed that the fresh charge sheet was prepared by the Vigilance Division with the approval of Chief Vigilance Officer of DIPP and forwarded to Establishment Division for delivering the same to the applicant. As per the directions of the Deputy Secretary (Establishment), who is also the DA in this case, the charge sheet was served on the applicant on 12.10.2011 by the Establishment Division of DIPP which was duly received by the applicant. Thus, there is no violation of provisions of Rule 14 of the CCS(CCA) Rules, in this regard. It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the main OA and prayed for its dismissal.
14. Controverting the pleadings in the reply filed by the respondents and reiterating the grounds contained in the O.A, 8 OA No.4672/2014 the applicant filed the rejoinder. That is how we are seized of the matter.
15. At the very outset, learned counsel has contended with some amount of vehemence that the applicant was working as a UDC at the relevant time and his competent authority to initiate the departmental proceedings and approve the charge sheet was, Deputy Secretary. But since the impugned charge- sheet (Annexure-A) was served by Shri P.L.N. Murthy, Under Secretary, so there is a clear violation of Rule 14 of the CCS (CCA) Rules, and no enquiry can be initiated on such illegal charge-sheet. In support of his contention he has placed reliance on the judgment of the Hon'ble Apex Court in the case of U.O.I. & Others Vs. B.V. Gopinath's case (supra).
16. On the contrary, learned counsel for respondents has vehemently urged that, since the charge sheet was prepared by the Vigilance Division with the approval of Chief Vigilance Officer of DIPP and forwarded it to the Establishment Division for delivering the same to the applicant as per the direction of the Deputy Secretary, so there was no ambiguity or illegality in serving the charge sheet to the applicant.
17. Having heard the learned counsel for the parties, having gone through the record and legal position with their valuable help, and after considering the entire matter, we are of the firm view that the articles of charge (Annexure A-1) and imputation of misconduct (Annexure A-2) cannot legally be sustained, for the reasons mentioned herein below.
9OA No.4672/2014
18. A bare perusal of the record would reveal that the facts of the case, are neither intricate nor much disputed. Such being the legal position and material on record, now the short and significant question that arises for determination in this case is, whether charge-sheet served to the applicant by the Under Secretary is legal or not?
19. Having regards to the rival contentions of the learned counsel for the parties, we are of the firm view that answer must obviously be in the negative.
20. As is evident from the record that the applicant has specifically pleaded in ground 5(i) of the OA as under:-
"(i)Because the impugned charge memorandum has been issued by the incompetent authority and the same has also been drawn or approved by the competent authority and, therefore, the same is violative of Rule 14(3) and 14(4) of CCS (CCA) Rules, 1965 and, therefore, nullity in the eyes of law in view of the law laid down by the Hon'ble Apex Court in the case of U.O.I. & Others Vs. B.V. Gopinath (2014) 1 SCC 351".
21. On the other end, the respondents have replied in response to ground 5(i) of OA in the following manner:-
"5(i) As stated is wrong, false and hence denied. The fresh charge sheet was prepared by the Vigilance Division with the approval of Chief Vigilance Officer of DIPP and forwarded to Establishment Division for delivering the same to the applicant. As per the directions of the Deputy Secretary (Establishment), who is also the DA in this case, the charge sheet was served on the applicant on 12.10.2011 by the Establishment Division of DIPP which was duly received by the applicant on 12.10.2011. Thus, there is no violation of provisions of Rule 14 of the CCS(CCA) Rules, 1965 in drawing and serving Memorandum No.15(1)/2010-Vig. dated 11.10.2011. The reference made by the applicant [Hon'ble Apex Court in B.V. Gopinath (supra)] is not relevant in the matter".
22. It is not a matter of dispute that the applicant was working as a UDC at the relevant time and the competent authority for taking appropriate action against UDC was Dy. 10 OA No.4672/2014 Secretary (not Under Secretary). Meaning thereby, the competent authority (Dy. Secretary) has neither drawn nor approved the charge-sheet before issuing the same to the applicant. The mere fact that it was delivered at the alleged direction of the Deputy Secretary, is not sufficient in this relevant connection.
23. What cannot possibly be disputed here is that the impugned charge-sheet was issued to the applicant for imposing major penalty, as contemplated under Rule 14 of the CCS(CCA) Rules. Rule 14 (3) postulates that where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up - (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; and (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge.
24. Likewise, Rule 14(4) posits that the disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be 11 OA No.4672/2014 specified, a written statement of his defence and to state whether he desires to be heard in person.
25. A conjoint and meaningful reading of these provisions would reveal that, where it is proposed to hold an enquiry against a Government servant under Rule 14 or Rule 15, the DA shall draw up or cause to be drawn up the charge sheet. Rule 14(4) further mandates that the DA shall deliver or cause to be delivered to the Government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents & witnesses, by which each article of charge is proposed to be proved.
26. As indicated hereinabove, in the present case neither the competent authority has drawn nor approved the charges nor delivered a copy of Article of Charge, statement of Imputation of Misconduct or Misbehaviour and the supporting documents etc. to the applicant, which was a condition precedent for initiation of a valid departmental enquiry (DE). Therefore, the impugned Article of Charge for misconduct (Annexure-I) is non-est in the eyes of law and any DE initiated on such illegal charge-sheet would be an exercise in futility. This matter is no more res integra and is now well settled.
27. As identical question came to be decided by the Hon'ble Apex Court in the case of U.O.I. & Others Vs. B.V. Gopinath 12 OA No.4672/2014 (2014) 1 SCC 351. Having considered the ratio of law laid down in previous judgments and interpreting Rule 14 of CCS(CCA) Rules, 1965, it was ruled as under:-
"46. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the respondent. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of law. This plea of the respondent has been accepted by the CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS(CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge sheet". These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in the case of P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General & Ors.[ 1993 (1) SCC 419] has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that "However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority." It is further held that "Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post."
28. Sequelly, the mere fact that the charge sheet was routed through Deputy Secretary to the Joint Secretary, higher than the Disciplinary Authority, ipso facto, is not a ground, much less cogent, to cure the statutory defect in serving and approval of the charge sheet. It is now well settled principle of interpretation of statute, that the words of statutory 13 OA No.4672/2014 provisions are to be given their ordinary, popular and natural meaning. If such meaning is clear and unambiguous, the effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. Indeed, if the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. The settled proposition is that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise.
29. Equally, it is now well recognized principle of law that the charge memo drawn by an officer other than the specified authority, was wholly without jurisdiction and hence, vitiate the whole disciplinary enquiry, in view of the ratio of law laid down by the Hon'ble Apex Court in Government of Andhra Pradesh Vs. M.A. Majeed & Anr. (2006) 1 ALT 661. Again, it 14 OA No.4672/2014 was observed by Hon'ble Supreme Court in case Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003) 2 SCC 111 that, where a statutory authority is required to do something in a particular manner, the same must be done in that manner only. The State and other authorities, while acting under the statute, are the creatures of the statue and they must act within the four corners of the statute.
30. The same very contrary arguments were duly repelled by Hon'ble Apex Court in B.V. Gopinath's case (supra) wherein it was ruled as under:-
"43. Accepting the submission of Ms. Indira Jaising would run counter to the well known maxim delegatus non protest delegare (or delegari). The principle is summed up in "Judicial Review of Administrative Action" De Smith, Woolf and Jowell (Fifth Edition) as follows:-
"The rule against delegation A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another."
The same principle has been described in "Administrative Law"
H.W.R. Wade & C.F. Forsyth (Ninth Edition), Chapter 10, as follows:-
"Inalienable discretionary power An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorized by the authority endowed with the power."15 OA No.4672/2014
44. This principle has been given recognition in Sahni Silk Mills (P) Ltd. 1994 (5) SCC 346 wherein it was held as under:
"6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee (sic) is to exercise the power. The real problem or the controversy arises when there is a sub- delegation. It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place."
31. Therefore, in the instant case, once it is proved that the impugned charge-sheet has neither been drawn up nor approved by the competent authority, in that eventuality, we have no option but to term the impugned charge sheet as illegal and non-est in the eyes of law. Any enquiry initiated on such illegal charge-sheet would be an exercise in futility. Hence, the contrary arguments of the learned counsel for the respondents stricto-sensu deserve to be and are hereby repelled, as the ratio of law laid down by Hon'ble Apex Court in the indicated cases is fully applicable to the present controversy and is a complete answer to the problem in hand.
32. Moreover, it was specifically pointed out by the Coordinate Bench of this Tribunal in OA No.3399/2010 that, there is no mention of the name of the contractor to whom the work was originally allotted and in whose place the name of M/s. Evergreen was substituted. Even this defect was not rectified in the Article of Charge by the competent authority. 16 OA No.4672/2014
33. No other point, worth consideration, has either been urged or pressed by learned counsel for the parties.
34. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side, during the course of Departmental Enquiry, the instant OA is partly allowed. The impugned Memorandum dated 11.10.2011 (Annexure-A), statement of Articles of Charge (Annexure-I) and imputation of misconduct (Annexure-II) approved and passed by the Under Secretary (not the competent authority) are hereby quashed.
35. As a consequence thereof, the case is remitted back to the Disciplinary Authority to decide the matter afresh by issuing a fresh specific charge sheet by removing the defects pointed out vide order dated 30.05.2011 in OA No.3399/2010 by this Tribunal, duly approved by the competent authority, in view of the above said observation and by passing a speaking & reasoned order in accordance with law. No costs.
(V.N. GAUR) (JUSTICE M.S. SULLAR) MEMBER (A) MEMBER (J) /Rakesh/