Central Administrative Tribunal - Delhi
Shri R.R. Dhavle vs Union Of India on 16 April, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1767/2013 Reserved On:07.03.2014 Pronounced On:16.04.2014 Honble Shri G.George Paracken, Member (J) Honble Shri P.K. Basu, Member (A) Shri R.R. Dhavle, Age 54 years S/o Shri D.B. Dhavle Quarter No.86, Sector-2, Type-3, Sadiq Nagar, New Delhi-110049. ..Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Union of India Through the Secretary, Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi. 2. The Director General, Films Divisions, Ministry of Information and Broadcasting, 24, Dr. G. Deshmukh Marg, Mumbai-400026. 3. The Director of Administration Films Divisions, Ministry of Information and Broadcasting, 24, Dr. G. Deshmukh Marg, Mumbai-400026. 4. The DDG (In-charge) Films Division, Soochan Bhavan, Room No.522, 5th Floor, CGO Complex, Lodi Road, New Delhi. 5. The DDG (In-charge) Films Division, ERPC, Doordharshan Bhavan, 6th Floor, Golf Green, Kolkata-700095. 6. The Sr. Administrative Officer (I/C), Films Division, Ministry of Information and Broadcasting, Govt. of India, 24-Dr. G. Deshmukh Marg, Mumbai-400026. Respondents By Advocate: Shri D.S. Mahendru. ORDER
Shri G.George Paracken, M(J) The Applicant in this Original Application has challenged the Impugned Memorandum dated 09.11.2012 whereby he was proceeded under Rule 14 of the CCS (CCA) Rules, 1965. The substance of imputation of misconduct or misbehaviour in support of which enquiry was proposed to be held as set out in the Articles of Charges are as under:-
ARTICLE-I That the said Shri R.R. Dhavle, while functioning as Maintenance Engineer at Films Division, New Delhi was transferred to Films Division, ERPC, Kolkata in public interest. He was directed to report for duty accordingly on being relieved from Films Division, New Delhi on 12.06.2012. His representations had been disposed off and he was directed to report for duty at ERPC, Kolkata. Instead of joining duty at ERPC, Kolkata he was willfully remained absent form duty. He has been repeatedly directed to report for duty with specific mention that non joining at Films Division, ERPC, Kolkata will be treated as absence from duty and shall be construed as non compliance of orders. This communication has been received back in the office with the remark from the post department as Refused which indicates that he has willfully refused to accepted the official communication meant for him. The said R.R. Dhavle, Maintenance Engineer was once again directed to report for duty at Films Division, ERPC, Kolkata failing which departmental proceeding will be initiated against him without any further communication. The above mentioned Memo has also been received back in the office with the remark from the postal department as Refused which underlines that he has willfully refused to accept the official communication meant for him.
ARTICLE-II Shri R.R. Dhavle was relieved of his duties w.e.f. 12.06.2012. He did not report for duty at Films Division, ERPC, Kolkata. Instead he filed Original Application in CAT, Principal Bench, New Delhi but did not report for duty. He submitted a medical leave applications for the period from 12.07.2012 to 12.10.2012 and extension of leave application for the period from 13.10.2012 to 23.11.2012. His leave applications dated 13.08.2012 and 15.10.2012 have not been considered by the competent authority and he has been directed to report for duty at Films Division, ERPC, Kolkata. But he did not report for duty. He, thus did not comply with the orders/directions of the competent/superior authority. That the above acts of the said Shri R.R. Dhavle, Maintenance Engineer are in gross violation of CCS (Conduct) Rules and amounts to misconduct on account of willful insubordination/disobedience to a lawful and reasonable order of superior authority.
ARTICLE-III That Shri R.R Dhavle, Maintenance Engineer remained willfully absent from duty at Films Division, New Delhi on being relieved by the Delhi Office w.e.f. 12.06.2012 up to 12.07.2012 when CAT had ordered not to press for his relief till next date of hearing i.e. 09.07.2012. He remained absent thereafter till today. That the said act of willful absence from duty committed by the said Shri R.R. Dhavle, Maintenance Engineer is in gross violation of CCS (Conduct) Rules and amounts to misconduct on account of willful insubordination/disobedience to a lawful and reasonable order of superior/controlling authority.
It is, therefore, alleged that by the above acts, the said Shri R.R. Dhavle, Maintenance Engineer has exhibited lack of devotion to duty and as such acted in a manner unbecoming of a Government servant and has thereby contravened the provisions of Rule 3(1)(ii) and (iii).
2. Brief facts of the case are that the Applicant had earlier approached this Tribunal vide OA No. 2102/2012 challenging his transfer order dated 11.06.2012 and the same was disposed of vide order dated 26.06.2012 with a direction to the Respondents to decide his representation within a period of 14 days from the date of receipt of the order/judgment. Thereafter, the Applicant made a representations dated 12.06.2012 and 20.06.2012 containing identical averments denying all the allegations made by the Respondents. However, Mr. Suresh Menon, DDG (In-charge), Mumbai, who according to the Applicant was not the competent authority, vide his letter dated 05.07.2012 illegally, arbitrarily and discriminatorily rejected his representations and directed him to report for duty at Kolkata. He was also informed that if he fails to do so, disciplinary action would be taken against him. Again, the Applicant approached this Tribunal vide OA No.2244/2012 in which notice was issued to the Respondents on 09.07.2012 and they were directed not to force him to join in Films Division, EPRC, Kolkata till the next date of hearing. The aforesaid interim order continued from time to time till the OA was finally disposed of vide order dated 11.09.2012. The operative part of the said order reads as under:-
9. In the aforementioned legal and factual backdrop when the interference with the impugned order is declined and the prayer of the Applicant contained in the OA is rejected, it is directed that after joining at ERPC, FD, Kolkata to keep infrastructure ready for the commencement of production to commemorate 100 years of cinema and other production works, the Applicant would be at liberty to make a representation to Respondents to utilize his services at Films Division, Delhi and ERPC, FD, Kolkata in the manner the services of Mr. B. Suresha are utilized at Films Division, Mumbai and SRPC, Bangalore. On such representation being made, respondent No.2 would consider and decide the same keeping in view the fact that in the past the post of Maintenance Engineer, FD, Kolkata was utilized at Films Division, Delhi and the establishment of Delhi is larger than the ERPC, Kolkata.
OA stands disposed of. No cost.
3. The Applicant challenged the aforesaid order before the Honble High Court of Delhi vide W.P. ( C) No.6661/2012 and the High Court disposed of it vide its order dated 19.10.2012 and the said order reads as under:-
The learned counsel for the petitioner, on instructions from the petitioner, who is present in person, seeks permission to withdraw this writ petition with liberty that the consideration that has been directed by the Tribunal, when a representation is made by the petitioner, should be done without being influenced by any observations in the Tribunals order. He also requests that the representation, which would be filed by the petitioner after he joins at Kolkata, would be disposed of by the respondent No.2 by a speaking order within four weeks. The writ petition is dismissed as withdrawn with the aforesaid liberty.
To make it clear, once again, after the petitioner joins Kolkata, he shall move a representation within a week and within four weeks thereafter his representation shall be disposed of by the respondent No. 2 by a speaking order. In case the petitioner is still aggrieved, he would be at liberty to file an application before the Tribunal.
The writ petition stands disposed of as above.
4. According to the Applicant, he received a copy of the aforesaid order of the High Court on 07.11.2012 and thereafter he joined the Films Division, ERPC, Kolkata on 03.12.2012. In the meantime, the Respondents issued the impugned Memorandum dated 09.11.2012. He has, therefore, submitted that he has not committed any misconduct in the matter. However, since the Respondents are proceeding further against him in terms of the aforesaid impugned Memorandum, he has filed this OA seeking the following reliefs and interim relief in this case:-
Reliefs (i) To set aside the impugned order dated 09.11.2012 whereby the departmental enquiry was initiated against the applicant along with the Article of Charge and Imputation of Misconduct and any subsequent proceeding in pursuance of order dated 09.11.2012 with all consequential benefits.
Or/And
(ii) Any other relief which this Honble Court deems fit and proper may also be awarded to the Applicant.
Interim Relief The Respondents be restrained to proceed further in the present departmental enquiry till the final outcome of the present OA.
OR Any other relief which this Honble Court deems fit and proper may also be awarded to the Applicant.
5. Considering the aforesaid submissions made by the Applicant in this OA, vide order dated 28.05.2013, this Tribunal directed the Respondents to maintain status quo with regard to the departmental enquiry initiated against him until the next date of hearing but the said interim direction was being continued from time to time.
6. The Respondents have filed their reply. They have stated that the Applicant while working as Maintenance Engineer, Films Division, New Delhi was transferred to Kolkata in public interest vide order dated 11.06.2012 and he was relieved vide order dated 12.06.2012. He was also directed to report for duty at Kolkata vide Memo dated 13.06.2012. Instead of joining duty there, he filed OA No.2102/2012 (supra) before this Tribunal challenging his transfer. This Tribunal disposed of the said OA vide order dated 26.06.2012 with a direction to the Respondents to dispose of his representation. Accordingly, the Respondents disposed of his representation dated 12.06.2012, vide memo dated 05.07.2012 directing him again to report for duty at Kolkata after availing the admissible joining time. Instead of joining his duties at Kolkata, again he filed another OA No.2244/2012 (supra) on 09.07.2012 before this Tribunal and remained absent from duty willfully till 12.07.2012 on which date this Tribunal ordered not to press for his joining at Kolkata till the next date of hearing. Thereafter, this Tribunal, vide their order dated 11.09.2012 disposed off the aforesaid OA with the direction to the Applicant to join duty at Kolkata and thereafter to sent his representation for consideration of his transfer to Films Division, New Delhi. In the light of the aforesaid order, the Applicant was again directed to report for duty vide Memo dated 25.09.2012 in which it was specifically mentioned that his non-joining the duty at Kolkata will be treated as absence from duty and shall be construed as non-compliance of orders. The above mentioned memo was received back by the Respondents with the remarks from the postal authorities dated 28.09.2012, Refused. Meanwhile, the Applicant challenged the aforesaid order of this Tribunal before the Honble High Court of Delhi vide W.P.C. No.6661/2012 (supra) but the High Court, vide its order dated 19.10.2012 disposed of it giving liberty to the Applicant to move a representation to the authorities for consideration of quashing of his transfer to Kolkatta. Therefore, the Applicant had willfully refused to accept the official communication meant for him. He also did not report for duty at Kolkata till 03.12.2012.
7. They have further submitted that the Applicant had exhibited lack of devotion to duty and acted in a manner unbecoming of a Government servant and thereby contravened the provisions of Rule 3(1)(ii) and (iii) of CCS (CCA) Rules, 1965. Therefore, the competent authority, vide Memorandum dated 09.11.2012 proposed to initiate disciplinary proceedings against him for his willful disobedience and insubordination. By the said Memorandum, he was also given an opportunity to submit his statement of defence. Accordingly, he submitted his statement of defence on 22.12.2012 and the competent authority has considered the same but was not found satisfactory. Therefore, Inquiry Officer and Presenting Officer have been appointed and the disciplinary proceedings have been initiated against the Applicant.
8. The learned counsel for the Respondents has argued that in the above facts and circumstances of the case, this Tribunal may not interfere with aforesaid Memo and the enquiry proceedings should be allowed to continue. In this regard, he has relied upon the judgment of the Apex Court in the case of Union of India and Others Vs. Upendra Singh 1994 (3) SCC 357 wherein it has been held that the Courts/Tribunals, have no jurisdiction to go into the correctness or truth of the charges. The relevant part of the said judgment is as under:-
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, Karnal v. Gopi Nath & Sons. 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 authorised 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.
9. He has also relied upon the judgment of the Apex Court in the case of Dy. Inspector General of Police Vs. K.S. Swaminathan 1996 (11) SCC 498 wherein it has been held as under:-
3. While the respondent was working as an Inspector of Police, District Special Branch in Combater Rural District especial raid was conducted in the farmhouse of one Eswaramoorthy Grounder located within the limits of Avinashi Police Station on 19-8-1991. The incriminating material recovered from the farmhouse would indicate that he was making payments to certain persons and one of the names disclosed from the incriminating material was of the respondent. Consequently, a charge memo imputing misconduct on his part was issued to him. The respondent filed OA in the Administrative tribunal challenging the validity of the charge memo dated 28/9/1991. The tribunal in the impugned order dated 15/4/1994 set aside the charge memo on the ground that the charges were vague. Thus, this appeal by special leave.
4. It is settled law by a 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 be 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 Special Leave Petitions (C) Nos. 19453-63 of 1995 had on 9/2/1996 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."
5. We respectfully agree with the above conclusion and set aside the impugned order of the tribunal. The enquiry officer is directed to conduct and complete the enquiry within a period of eight months from the date of the receipt of the order and the disciplinary authority is directed to take action thereon within three months thereafter.
6. The appeal is accordingly allowed but, in the circumstance, without costs.
10. We have heard the learned counsel for the Applicant Shri Sachin Chauhan and the learned counsel for the Respondents Shri D.S. Mahendru. Basically, the Article of Charge against the Applicant is that he has not obeyed the order of the Respondent dated 11.06.2012 transferring him from Films Division, New Delhi to Films Division, ERPC, Kolkata and remained willfully absent from duty w.e.f. 12.06.2012 till the issuance of the Memorandum dated 09.11.2012. The other allegation against him is that he willfully refused to accept the official communication sent to him by the Respondents. As rightly argued by the learned counsel for the Respondents, the corrections or otherwise of the charge cannot be gone into by this Tribunal. But it is noticed that the Articles of Charges against the Applicant are proposed to be sustained by the Disciplinary Authority with the support of 10 listed documents mentioned in Annexure A-III of the Impugned Memorandum dated 09.11.2012 issued to the Applicant proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. However, according to Annexure A-IV of the said Memorandum, there is not a single witness to prove those documents. We are, therefore, of the considered view that the impugned Memorandum itself is not sustainable as it would not serve any fruitful purpose as in the absence of witnesses, the list of documents cannot be proved. In the absence of evidence adduced by the witness in a disciplinary enquiry, it cannot be held that charges have been proved. In this regard sub-rule (4) of Rule 14 of the CCS (CCA) Rules, 1965 is relevant and it is reproduced as under:-
(4) 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 specified, a written statement of his defence and to state whether he desires to be heard in person.
Again, sub-rule (14) of Rule 14 ibid prescribes the procedure to be followed as to how the oral and documentary evidence by which the Articles of Charges are proposed to be proved. The sub-rule reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
11. The Apex Court in its judgment in State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) AISLJ 59 has held that the departmental enquiry cannot be treated as a casual exercise. The relevant part of the said judgment reads as under:-
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
In the same judgment, the Apex Court has held that Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
12. The Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 held that departmental proceedings are quasi-judicial proceedings and mere production of documents is not enough but its contents have to be proved by examining witnesses. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
13. In the above facts and circumstances of the case, we allow this OA and hold that the impugned Memorandum dated 09.11.2012 cannot be sustained and accordingly the same is quashed and set aside. Consequently, we also direct the Respondents to pass appropriate orders in compliance of the aforesaid direction within a period of two months from the date of receipt of a copy of this order. No costs.
(P.K. BASU) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh