Central Administrative Tribunal - Delhi
Shri C.P. Dagar vs Union Of India Through on 16 December, 2013
Central Administrative Tribunal Principal Bench OA No.1620/2012 Reserved on: 10.10.2013 Pronounced on: 16.12.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Shri C.P. Dagar R/o B-204, Young Aheria Apartments, Plot No.2, Sector-7, Dwarka, New Delhi-110 075. Applicant (By Advocate: Shri V.S.R. Krishna) Versus Union of India through: 1. The Secretary, Government of India, Ministry of Home Affairs, North Block, New Delhi. 2. The Director, Intelligence Bureau, Government of India, Ministry of Home Affairs, New Delhi. Respondents (By Advocate: Ms. Ruby Sharma) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant vide means of the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 assails the order dated 24.01.2012 imposing the penalty of dismissal from service. The applicant has sought the following reliefs:-
to quash and set aside the impugned order dated 24.01.2012 passed by the respondents as also the charge sheet and inquiry officers report as totally arbitrary, illegal and void;
to grant to the applicant all consequential benefits arising from the setting aside the order of punishment along with all consequential benefits like reinstatement in service with accrued back wages etc.;
to grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case.
2. The case of the applicant, in brief, is that he was serving as Deputy Central Intelligence Officer (hereinafter referred to as DCIO). At the time of framing of the charges, the applicant was posted at District Bandipore admittedly a military affected area under SIB, Srinagar. In this capacity, the applicants principal duties and functions included collection of militancy related and other relevant intelligence and disseminating the same to the higher formations. The applicant claims to have excelled in his job and has been recognized several times through means of rewards. However, he had earned the ire of his immediate superior one A.D. Singh, the then DD, SIB, Srinagar on his request to retain him at Sringar on medical grounds instead of being posted to Bandipore. A Charge Memo was served upon the applicant vide Memo dated 27.01.2009 on the following charges:-
Article-I That the said Shri C.P. Dagar, DCIO while posted at Bandipore Outpost (under SIB Srinagar) consumed liquor with his local contact Tanvir on 22.9.2008 in excess which resulted in his deteriorating health and he had to be brought to Srinagar for his medical examination. Further, he also divulged some official information to Tanvir.
Thus, by his aforesaid misconduct of consuming liquor in excess and disobeying the security instructions, Shri C.P. Dagar, DCIO has violated Rule 22 (d) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article-II That the said Shri C.P. Dagar, DCIO while posted at Bandipore Outpost (under SIB Srinagar) went to temple inside the BSF camp on 24.8.2008 (Janmashtami day) at abour 2100 hours under the influence of liquor and created a bad scene there.
Thus, by his aforesaid misconduct of appearing in public place in the state of intoxication and creating nuisance in a public place, Shri C.P. Dagar, DCIO has violated Rule 22 (c) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article-III That the said Shri C.P. Dagar, DCIO while posted at Bandipore Outpost (under SIB Srinagar) consumed liquor heavily along with his staff Shri Vivek Sagar, ACIO-II/WT on 20.8.2008 and quarrelled with each other by creating scene in the office complex.
Thus, by his aforesaid misconduct of consuming liquor in excess with one of his staff members and destroying the official decorum, Shri C.P. Dagar, DCIO has violated Rule 22 (d) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article-IV That the said Shri C.P. Dagar, DCIO while posted at Bandipore Outpost (under SIB Srinagar) brought a lady, a widow of a militant and known to be of loose character, from a pre-determined location to the office-cum-residence in the office vehicle on one of the days in August, 2008 and ordered all the staff members to leave the office by keeping only a boy, who came with the lady, in the office alone from morning till evening. The lady was then dropped back in the office vehicle at the same place from where she was picked up.
Thus, by his aforesaid misconduct, Shri C.P. Dagar, DCIO has indulged in an act of moral turpitude, thereby, violated Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964.
3. A departmental enquiry was held against the applicant following the due procedure wherein the following position emerged:-
1. Article I could be substantiated only partly to the effect that he divulged classified official information to an unauthorized person, in contravention of existing rules/guidelines on the subject.
Article-II of the charge stands proved beyond doubt.
Article-III of the charge could not be proved during the course of enquiry.
Article-IV of the charge could not be substantiated during the enquiry.
4. The disciplinary authority agreed with the findings of the enquiry office in respect the Articles of Charge nos. I, II & IV but disagreed with regard to Article of Charge No.III. He recorded his note of disagreement which was duly served upon the applicant and a reply was also given. Based upon this, the applicant was awarded the punishment of dismissal from service vide Memo dated 24.01.2012, which has been impugned in the instant OA.
5. The applicant had adopted two grounds in support of his claim namely (i) the note of disagreement had not been provided to him before imposing the impugned punishment; and (ii) he was also not supplied the UPSC advice before passing of the punishment under reference. However, during the course of the arguments, the sole ground that the applicant had adopted is that while the note of disagreement has only been made in respect of Article of Charge No.III and not in respect of Article of Charge No.I, which accepted being partly proved, in the impugned order dated 24.01.2012 Article of Charge No.I has also been shown to have been fully proved. The applicant has relied upon the decision of the Honble Supreme Court in the matter of Punjab National Bank and Others versus Kunj Behari Misra with Chief Personnel (Disciplinry Authority), Punjab National Bank and Others versus Shanti Prasad Goel [(1998) 7 SCC 84] and Union of India versus S.K. Kapoor [(2011) 4 SCC 589].
6. The learned counsel appearing for the respondents argued that the note of disagreement had been provided to the applicant and the same has been admitted. A reply had also been filed by the applicant. Moreover, the order passed by the disciplinary authority does not rely upon the advice of the UPSC but only supports it. Hence, no right of natural justice of the applicant has been impinged. A similar matter had also been dealt with by the Honble High Court of Delhi in the matter of Union of India and Another versus Biswabijoyee Panigarihi and Another [WP(C) No. 4539/2012 decided on 15.07.2013] wherein it has been held that information given by the UPSC under the terms of Article 323(c) is not binding on the disciplinary authority. Where the disciplinary authority relies upon the recommendation of the UPSC, a copy of the recommendation has to be necessarily provided to the delinquent employee before the disciplinary authority takes the decision. However, where he is merely in agreement with the recommendation of the UPSC and does not rely upon it, it is not necessary to provide the same to the charged officer. As regards the instant case, the learned counsel appearing for the respondents did not express any opinion except to say that the charges where serious and the disciplinary authority has committed no wrong in imposing upon the punishment of dismissal from service on the applicant.
7. We have gone through the pleadings and the documents submitted by the rival parties. We have also listened to the arguments of their respective counsels.
8. The sole issue that emerges for our consideration is that while the disagreement note dated 24.02.2011 expresses disagreement only in respect of Article of Charge No.III, the order of punishment is also based upon the assumption that the Article of Charge No.I has been fully proved. The Article of Charges having been stated earlier, we come straight away to the enquiry report dated 03.11.2010. The Article of Charge No.I, as seen earlier, had two parts, namely (i) that the applicant consumed the liquor in excess and (ii) the applicant had divulged some important official information to one Tanvir. In this regard, the report of the enquiry officer states that Article of Charge No.I could be substantiated partially and Article of Charge No.II stood proved whereas other two Articles of Charge being Charge No.III & IV could not be proved and substantiated.
9. Coming to the note of disagreement dated 24.02.2011 wherein the disciplinary authority stated that:-
3. The Inquiry Officer submitted the inquiry report on 03.11.2010 according to which the charge under Article-I is partially proved, charge under Article-II is proved and charges under Article-III & IV are not proved. A copy of the inquiry report is enclosed.
4. The Disciplinary Authority (President) after having carefully gone through the inquiry report and records of inquiry proceedings, has agreed with the findings of the Inquiry Officer w. r. t. Article of charge-I, II & IV but disagreed with regard to Article of Charge-III on the following grounds. This was communicated to the applicant and he was invited to make his representation against the enquiry report, if any. In the impugned order, the disciplinary authority holds as under:-
Now, therefore, the President being the Disciplinary Authority, after having carefully gone through all the relevant documents on record, submissions made by Shri C.P. Dagar, DCIO in his reply dated March 28, 2011 and the advice of UPSC, observes that the charges under Article-I & II are fully proved i.e. he divulged classified information an unauthorized person and brought disrepute to the department by visiting a temple within the BSF camp in an inebriated condition and created scene there, whereas the charge under Article-III is partly proved and charge under Article-IV is not proved. The charge of divulging classified information by Shri Dagar to an unauthorized person is alone sufficient to warrant imposition of highest major penalty on Shri Dagar. Further continuation of Shri Dagar in a sensitive security organization like IB may, therefore, put the organization at great risk in future. The undersigned, after carefully considering all the facts and circumstances of the case, fully agrees with the advice of UPSC and feels that the ends of justice would be met only if the penalty of Dismissal from Service with immediate effect, is imposed on Shri C.P. Dagar, DCIO and orders accordingly.
10. From the above citations it emerges clearly that while the disciplinary authority had differed in his note of disagreement only in respect of Article of Charge No.III but while awarding the punishment, he has deemed that Article of Charge No.I of the charge has been fully proved.
11. In the case of Punjab National Bank and Others versus Kunj Behari Misra (supra), the respondents were Assistant Managers in the appellant bank and were held responsible for short of cash amounting to Rs.1.00 lac. The enquiry officer, who had conducted the enquiry against them, had totally absolved one of the respondents while the other had been held guilty only in respect to one of the charges. The question that emerged there was that could the disciplinary authority differed from the report of the enquiry officer and give contrary finding without affording any opportunity to the delinquent officer. While discussing this issue, the Honble Supreme Court went into the decision in the matter of Managing Director, ECIL versus B. Karunakar [1993 (4) SCC 727] and discussed the rationale for providing a copy of the enquiry report to the charged officer as an essential part of reasonable opportunity at the first stage and also a constituent part of the principles of natural justice because the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusion. The Honble Supreme Court further held that it was difficult to say in advance as to what extent the findings including the punishment recommended in the report, if any, would influence the disciplinary authority while drawing his conclusion. The findings could have been recorded without having considered the relevant material on record by misconstruing it or unsupported by it. However, where such a finding is to be treated as one of the documents to be considered by the disciplinary authority, the principal of natural justice would require that the charged officer should have a fair opportunity to meet, explain and controvert it before he is condemned. The Honble Supreme Court was firmly of the opinion that it would be a gross negation of justice if the findings recorded by a third party like the enquiry officer were to be considered as the basis of the punishment. The Honble Supreme Court clearly held:-
18. Under Regulation 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not to be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry 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. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (1994 AIR SCW 1050) (supra).
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.
20. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants (AIR 1987 SC 71) (supra). While agreeing with the decision in Ram Kishan's case (1995 AIR SCW 4027) (supra), we are of the opinion that the contrary view expressed in S. S. Koshal (1994 AIR SCW 2901) and M. C. Saxena's cases (1998 AIR SCW 965) (supra) do not lay down the correct law.
12. The case of Union of India and Others versus S.K. Kapoor (supra) primarily relates to the issue of consultation with the UPSC. Honble Supreme Court has held that if the authority consults the UPSC and relies upon the report of the Commission for taking a action, the principles of natural justice require that the copy of the report may be supplied in advance to the charged officer so that he may have an opportunity of rebuttal. However, as this is not the issue in this case, as stated earlier, we leave the matter at that.
13. We also find that this Tribunal had taken a view in the matter of Ravinder Kumar, IPS (Retired) versus Union of India & Others [OA No.313/2010 decided on 23.05.2012] that it is within the competence of the disciplinary authority to re-appreciate the evidence as contained in the report of the enquiry officer. However, he is to record a note of disagreement which has to be communicated to the charged employee along with the enquiry report so that he may have the opportunity to file his reply. This has to be necessarily considered before taking a decision in the case.
14. In the instant case from the narration of events and citations, it emerges abundantly clear that when note of disagreement did not cover the Article of Charge No.I in the order of punishment, the same was shown to have been fully proved.
15. In totality of the facts and circumstances of the case, we are of the opinion that the impugned order is hit by lacunae of none-coverage and non-communication. At the same time, we are also fully cognizant of the fact that the matter relates to sensitive issues concerning the security of the State. Therefore, the instant Original Application stands allowed with the following directives:-
The impugned order dated 24.01.2012 is quashed and set aside being bad under law;
The respondent authorities are, however, at liberty to serve a fresh note of disagreement upon the charged officer and proceed accordingly in the case they may so desire.
There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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