Central Administrative Tribunal - Delhi
Sukhdev Singh Karkhal vs Union Of India Through on 5 January, 2015
Central Administrative Tribunal Principal Bench OA No. 3168/2013 Reserved on: 07.08.2014 Pronounced on: 05.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman, Honble Dr. B.K. Sinha, Member (A) Sukhdev Singh Karkhal, S/o Shri Gurpal Singh, R/o A-2/242, Railway Office Colony, Panch Kuian Road, Pahar Ganj, New Delhi-110 055 At present working as CPO/IR, Northern Railway, Headquarters, Baroda House, New Delhi-10 001 -Applicant (By Advocate: Shri A.K. Behera) -VERSUS- Union of India through: 1. The Chairman, Railway Board, Rail Bhavan, New Delhi-110 001 2. The Member Staff, Railway Board, Rail Bhavan, New Delhi-110 001 3. The Secretary, Railway Board, Rail Bhavan, New Delhi-110 001 4. The General Manager, Northern Railway, Baroda House, New Delhi 5. DRM, Firozpur, Punjab -Respondents (By Advocate: Shri Shailendra Tiwari) O R D E R Honble Dr. B.K. Sinha, Member (A):
The instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed by the applicant assailing the issuance of memorandum of charge-sheet dated 26.06.2012 under Rule 9 of the Railway Servants (Disciplinary & Appeal) Rules, 1968 (hereinafter referred to as Rules, 1968) and against the alleged misinterpretation of Rule 3 of Railway Servant (Conduct) Rules.
2. The applicant has prayed for the following reliefs:-
(i) Call for the records of this case;
(ii) Quash and set aside the impugned memorandum dated 27.06.2012 at Annexure-1 with all its adverse consequences;
(iii) Quash and set aside the order dated 20/06/2013 at Annexure-2;
(iv) Direct the respondents to give all the consequential benefits including postings to sensitive and field posts at par with others as if the impugned memorandum never existed.
(v) Direct the respondents to pay the cost of litigation to the applicant;
(vi) Pass any other or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case to save the applicant from harassment by issue of unwarranted and illegal charge memos.
3. The facts of the case, in brief, are that the applicant is a Sr. Member of the Railway Administration having joined the Indian Railway (Personnel) Service (IRPS) in 1988 and having been promoted to the Senior Administrative Grade (SAG, for short). Admittedly, the applicant was serving as Sr. Divisional Personnel Officer at Firozpur Division of the Northern Railway. It is further the case of the applicant that the selection process was initiated to fill up the departmental quota of 16-2/3% for the post of Ticket Collector from amongst the Group D employees of eligible categories of Traffic and Commercial Department vide notification dated 10.12.2007. In this regard, a reference was made to the Headquarters Office seeking clarification regarding relaxation in minimum service to SC/ST employees vide OM dated 02.01.2008 (Annexure-5). As per verbal instructions of the SPO/T&C in Headquarters Office, SC/ST were eligible for relaxation in minimum two years service condition for appearing in selection and a note to this effect was recorded by the APO/T&C (Annexure A-7). Accordingly, a clarificatory notification dated 07.01.2008 was issued clarifying that two years service condition would not apply to SC/ST candidates and as such, SC/ST candidates, who had less than two years service, were also eligible to apply for the post of Ticket Examiner. Accordingly, the Limited Departmental Competitive Examination [LDCE] was conducted and the selection process was gone through. The ADRM/Firozpur happened to be the approving authority, while the applicant was not a member of the selection committee. Two brothers of the applicant, namely, Baljinder Singh (Safaiwala) and Manoj Kumar (Gateman), who had less than two years of service as on 31.12.2007, were admittedly declared qualified the selection process and were empaneled. Subsequently, after four years of the selection process, the respondent no.1 issued a charge-sheet vide the OM dated 27.6.2012 stating that it was proposed to hold an inquiry against the applicant under Rule 9 of the Rules, 1968, which has been appended as Annexure A-1. It is the allegation of the applicant that the complete set of papers as stated in Annexure A/3 of the charge-sheet had not been provided to him, though it constituted an integral part of the charge-sheet, thereby making the charge-sheet void in the eyes of law. The applicant has further submitted that the practice of giving relaxation has been followed in other divisions, including Ambala Division, However, no inquiry has been ordered against those officers, thereby making the action of the respondents downright prejudicial and discriminatory against the applicant. The applicant further submits that charge-sheet cannot sustain for the simple reason that no misconduct can be inferred from the charge-sheet inasmuch as there is no violation of any rules. The applicant has referred to two advance correction slips 154 and 155. As per ACS No.154, the guidelines about filling up posts of Train Clerk, Commercial Clerks, Ticket Collectors, etc. on promotion from Group D to Group C have been elaborated by including new quota of 16-2/3% which was initially started as per Railway Boards letter dated 10.10.2000. It was stated therein that selection against this quota of 16-2/3% was to be conducted from amongst all matriculates of eligible Group D categories with 2 years service. As per ACS No.155, the system of viva-voce was dispensed with, but all other basic guidelines of holding selection from Group D to Group C were maintained. ACS No.155 contained mention of procedure of 331/3% quota selection only by elimination of viva-voce marks and relaxation of 3 years service condition in respect of SC/ST candidates in para4(ii). But it did not contain mention of similar relaxation of 2 years service condition prescribed for new 16-2/3% quota. Since 33-1/3% quota selection had been completed by the division before starting of 16-2/3% quota selection, some staff verbally represented in office about similar relaxation as had already been given by UMB division in 16-2/3% quota selection in year 2005. This contained the occasion for making of reference. The applicant has further submitted that had he not taken this step and had waited for written clarification/reply from HQ Office and had gone with minimum two years service condition, then reserved category candidates would have gone to Court and would have obtained stay order to stop selection. This would have delayed the selection and vacancies would have prolonged. So in this given situation, decision was not of Sr.DPO/FZR, rather it was verbal decision of the then SPO/T&C, the cadre controlling authority in Northern Railway HQs office in which the applicant has no involvement. The applicant has also submitted that had he other intentions, he would have assured that his brothers would have been toppers in 33-1/2% ranker quota selection and would have been empanelled at the head of the list, which is not the case, and that had he really harbored some dishonest intent, he would have included the clause of relaxation in the original note of the selection like other divisions. The applicant further referred to Rule 189 of IREM (Vol.1 1989 Edition) and Railway Board Master Circular No.20/91.
Para 6 of the Railway Board Master Circular reads as under:-
6. Date of appointment The date of appointment of a substitute to be recorded in the Service Book against the column Date of appointment should be the date on which he/she attains temporary status after a continuous service of four months if the same is followed by his/her regular absorption. Otherwise, it should be the date on which he/she is regularly appointed/absorbed.
This applies to substitute teachers also who attain the temporary status after continuous service of three months only. Therefore, this implies that in case of staff originally engaged as substitutes, the entire service after attainment of Temporary Status if followed by regularization in Gr.C/D without any break is counted as regular service for all benefits. The applicant has further submitted that the Vigilance Department is totally prejudiced against him and this is proved by not supplying the papers. It is further submitted that the charge-sheet has been issued after inordinate delay of four years with the sole purpose of depriving the applicant of important field posting, and that it is a clear-cut case of discrimination.
4. The respondents have filed a short reply followed by counter affidavit, both containing nearly the same substance. The respondents have submitted that ongoing disciplinary proceedings being quasi judicial in nature and are not to be interfered with at this stage and should be allowed to attain finality as per the procedures laid down by the Honble Supreme Court in the matter of Union of India & Ors. Vs. Upendra Singh, (1994) 3 SCC 357, which is further reiterated in the case of Dr. Sanat Kumar Patodi Vs. Union of India & Ors. (OA No. 829/2009) decided on 9.7.2013 by Jabalpur Bench of this Tribunal and in case of Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha (2012) 11 SCC 565. The respondents have further stated that the applicant submitted his statement of defence vide communication dated 27.09.2012 denying the charges. The disciplinary authority having perused the statement of defence, decided to remit the charges to inquiry officer in accordance with Rule 9(9) of Railway Servants (Discipline & Appeal) Rules, 1968 wherein due opportunity was to be provided to the applicant to defend his case. Therefore, quashing of charge-sheet at this stage would amount to miscarriage of justice and would stand in total contradiction of the decisions of the Honble Supreme Court. If some documents have not been provided, the appropriate forum where they should be sought is under sub-rule (15) to (17) of the Rule 19 of Rules, 1968 and any demand for quashing of the proceedings on grounds of non-supply at this stage is grossly premature. The respondents submit that the applicant had accepted that Railway Board had not given any relaxation for SC/ST candidates in the selection for 16-2/3% quota but to avoid court cases and to expedite the selection, relaxation was given.
5. The condition of two years of regular service in Group D is applicable to all candidates irrespective of the SC/ST candidates. No relaxation is given to SC/ST candidates The relaxation was given by the applicant, who was DPO/FZR intentionally to favour his real brothers namely Baljinder Singh, Safaiwala and Manoj Kumar, Gatemen, who admittedly had less than two years of regular service in the concerned unit as on 31.12.2007.
6. On the issue of there being no misconduct, the respondents in their counter affidavit provide that the charge-sheet is clear and unambiguous wherein it has been alleged as under:-
In a selection to fill up 21 posts of Ticket Collectors in Grade Rs.3050-4590 against 16-2/3% departmental quota for Group D employees, he deliberately an irregularly approved relaxation of eligibility conditions for SC/ST candidates, as detailed in the statement of imputations. This enabled two ineligible candidates to appear in the selection, one of whom was his own brother. It is, therefore, submitted that there is no substance in this OA. It is further submitted that whether the charges are true or false is to be examined during the course of the departmental proceedings, and that the applicant is also free to demand such documents as may be necessary under sub-rule (12) of Rule 9 of Rules, 1968. The respondents have totally denied the presence of any bias and have submitted that there is no merit in the OA.
7. The applicant has filed a rejoinder application rebutting all the points raised by the respondents. The applicant has once again accused the respondent- organization of harboring malevolent and evil designs. He submits that the vigilance department of the respondent organization right from the framing of charges and issue of charge sheets has not considered the preliminary defence, reply to charge sheet on merit, denying access to relied upon documents duly permitted by inquiry officer and avoiding reply to material facts in OA, which is sufficient to prove that it wants its action of arbitrariness, discrimination and exploitation inflicted upon the applicant from being noticed by Tribunal. Therefore, learned counsel for the applicant submitted forcefully that the Tribunal must intervene on the side of the applicant to curb this exploitation, harassment and discriminatory attitude of the Railway Administration to restore justice to the applicant as the charge-sheet has not been considered on merit, which itself amounts to violation of principles of natural justice. The applicant has further referred to the cases of Union of India Vs. Upendra Singh (supra) to submit that there can be no charge-sheet when no alleged irregularity has been said to have been made out or its charges are contrary to law. The Railway Administration has alleged violation of rules without having referred to the Rules in their charge-sheet.
8. During the course of the oral submissions, by and large followed with pleadings, the eligibility had been prescribed under two heads i.e. three years for general category and two years for SC/ST. The same pattern had been followed in all divisions on a consistent repetition of the circular dated 10.10.2007. Here, the applicant has relied upon decided cases by the Honble Supreme Court in Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors. (2007) 4 SCC 562, N.Suresh Nathan & Anr. Vs. UOI & Ors., 1992 Supp (1) SCC 584 and Union of India & Ors. Vs. Upendra Singh (supra)
9. We have carefully gone through the pleadings and the documents so produced by the parties and also patiently heard the arguments on the basis of which the following issues require reconciliation:-
(i) What is the scope of judicial review and to what extent, the Tribunal can go into the matter of correctness or otherwise of charges in departmental proceedings?
(ii) Whether the alleged charges constitute any misconduct?
(iii) Whether the inquiry is hit by the vice of inordinate delay?
(iv) Whether the charges are motivated by malice, prejudice and discrimination?
(v) What relief, if any, can be granted to the applicant?
10. Insofar as first of the issues is concerned, the law in this regard is well entrenched and has been developed by a number of decisions to this effect. One of the basic decisions in this matter is that of Union of India Vs. Upendra Singh [1994 (3) SCC 357]. The respondent before the Apex Court, a senior IRS Officer was issued a charge-sheet containing serious offences. He approached the Administrative Tribunal which issued interim order staying the proceedings. Against the said interim order, Union of India approached the Honble Supreme Court by way of Civil Appeal No. 4316 of 1991, which was allowed vide order dated 10.9.1992 and the Tribunal was directed to deal with the matter in the light of the observations made by Honble Supreme Court in Union of India Vs. A.N. Saxena, (1992)3 SCC 124. The Honble Supreme Court further opined that the case was fully covered by the decision of A.N. Saxena(supra) and directed the Tribunal to deal with the matter in light of the said decision. When the matter was remanded to the Tribunal, it went into the issue of correctness of charges on the basis of the material produced by the respondent and quashed the charges holding that they do not indicate any corrupt motive or any culpability on the part of the respondent. The Honble Supreme Court was surprised that when it had drawn the attention of the Tribunal in the case of Union of India Vs. A.N. Saxena (supra), the Tribunal ought not to have interfered at an interlocutory stage and yet the Tribunal chose to interfere on the basis of the material which was yet to be produced at the inquiry. In short, the Tribunal undertook the inquiry which ought to be held by the disciplinary authority (or the inquiry officer appointed by him) and found that the charges are not true without having examined the witnesses. The Honble Supreme Court held in para 6 of the order 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."
11. In this very case, the Honble Supreme Court further referred to the observations of the Tribunal that there was no trace of culpability of the respondent, whereas the Honble Supreme Court found that it was not shown. The Tribunal had relied upon the observations of the ITAT and CIT in appeal in a case between Assessees and the Government, whereas in those proceedings, the conduct of the respondent was not in issue, but the liability of the assessees. Here, it is the conduct of the respondent which was under issue. Moreover, the Government had not accepted the order of the ITAT and filed an application under Section 256(1) before the Tribunal. In this regard, we have further referred to the case of Union of India Vs. K.K. Dhawan, (1993)2 SCC 56 wherein the Honble Supreme Court laid down as to how an officer exercising quasi judicial authority should behave and on what grounds, he can be held responsible for the acts in a culpable manner:-
28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases :
(I) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(II) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(III) if he has acted in a manner which is unbecoming of a government servant;
(IV) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(V) if he had acted in order to unduly favour a party;
(VI) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'.
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical, violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."
12. Moreover, the respondents have also relied upon the decision of Honble Supreme Court in The Secretary, Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha (Civil Appeal No. 2333/2007) decided on 29.05.2014. In this case, the respondent, who had been working as Assistant Foreman in the Ordnance Factory, was charged with having accepted bribe. He approached the Tribunal, which struck the charge memo down on the ground having been issued by incompetent authority. The matter ultimately came to the Honble Supreme Court which interpreted Article 31 of the Constitution that removal and dismissal of a delinquent on misconduct must be made by an authority not below the appointing authority. It means that the disciplinary proceedings cannot be initiated against the delinquent by an authority lower than the appointing authority. However, it is permissible for an authority higher than the appointing authority to initiate the proceedings and impose punishment, in case he is not the appellate authority so that the delinquent may not loose the right of appeal. The Honble Supreme court further held that in any case, the delinquent has to prove as to what prejudice has been caused to him. (Vide: Sampuran Singh Vs. State of Punjab, AIR 1982 SC 1407; Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank & Ors. AIR 1995 SC 1053; Balbir Chand v. FCI Ltd. & Ors. AIR 1997 SC 2229; and A.Sudhakar v. Postmaster-General Hyderabad & Anr., (2006) 4 SCC 348). In Inspector General of Police & Anr. V. Thavasiappan, AIR 1996 SC 1318, this Court reconsidered its earlier judgments on the issue and came to the conclusion that there is nothing in law which inhibits the authority subordinate to the appointing authority to initiate disciplinary proceedings or issue charge memo and it is certainly not necessary that charges should be framed by the authority competent to award the punishment or that the inquiry should be conducted by such an authority. In Steel Authority of India & Anr. Vs. Dr. R.K. Diwakar & Ors., AIR 1998 SC 2210; and State of U.P. & Anr. V. Chandrapal Singh & Anr., AIR 2003 SC 4119, a similar view has been reiterated. The observations of the Honble Supreme Court are pithily contained in Para 9 and 10 which read as under:-
9. Law does not permit quashing of chargesheet in a routine manner. In case the delinquent employee has any grievance in respect of the chargesheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the chargesheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the chargesheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide: The State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; State of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570; Deputy Registrar, Cooperative Societies, Faizabad v. Sachindra Nath Pandey & Ors., (1995) 3 SCC 134; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; Food Corporation of India & Anr. v. V.P. Bhatia, (1998) 9 SCC 131; Additional Supdt. of Police v. T. Natarajan, 1999 SCC (L&S) 646; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; P.D. Agrawal v. State Bank of India & Ors., AIR 2006 SC 2064; and Government of A.P. & Ors. v. V. Appala Swamy, (2007) 14 SCC 49).
10. In Secretary, Forest Department & Ors. v. Abdur Rasul Chowdhury, (2009) 7 SCC 305, this Court dealt with the issue and observed that delay in concluding the domestic enquiry is not always fatal. It depends upon the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should not be permitted to continue.
13. From the above, the following principles can be expressly culled out:-
(i) That it is a general rule that once a charge-sheet has been issued, the departmental proceedings should be held in order to ascertain the charges.
(ii) The charges can only be ascertained at the level of the departmental inquiry where the charged official and the respondent organization are face to face and the witnesses have opportunity to be examined and cross-examined.
(iii) The Tribunal or a court should be loath to interfere in the departmental proceedings or more so in quashing charge-sheet.
(iv) The Tribunal or a court can only interfere in a departmental proceeding:
(a) where the charge-sheet is issued by the incompetent authority;
(b) where malice is alleged and established on the basis of the records; and
(c) where no misconduct is made out in the charge-sheet.
(v) The Tribunal/Courts are not to go into the correctness of the charges or to appreciate or re-appreciate as superior authorities the value of the evidence adduced.
(vi) The grounds of delay urged are to be assessed carefully in relation to the gravity of charges and the relevant facts involved. The delay is not always fatal and if satisfactorily explained, proceedings may continue.
(vii) The right of the Tribunals/Courts to interfere arises after the conclusion of the departmental proceedings as a general rule except where the charge-sheet is issued by the incompetent authority or is against the provisions of statutes in force or no charge is made out or malafide is proved. Courts are to take decisions regarding quashing of the proceedings on the basis of the afore principles as laid down earlier in various judicial pronouncements. Thus, this issue is accordingly answered.
14. Insofar as the second issue is concerned, the argument of the applicant is that no misconduct has been made out from the charges. We have a word of caution here that from the examination of the previous issue, it clearly emerges that even while dealing with the subject whether misconduct is made out, we are not required to delve into all the evidence adduced, as the same may prove prejudicial to the proceedings at the subsequent stage. This Tribunal is only to establish as to whether prima facie any misconduct can be said to have been made out or not. According to the P.Ramanatha Aiyars Law Lexicon, 3rd Edition at page 3027, the term misconduct implies a wrongful intention, and not a mere error of judgment. Gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings (Union of India Vs. J.Ahmed (AIR 1979 SC 1022-1027). The Honble Supreme Court has further held in State of Punjab Vs. Ram Singh, AIR 1992 SC 2188 that term misconduct may involve moral turpitude, it must be improper or wrong behavior, unlawful behavior, willful in character, forbidden act, a transgression of some established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. In the Indian Minerals Company Vs. The Northern India Lime Marketing Association, AIR 1958 All 692, the Honble Supreme Court has further held that misconduct not amounting to moral turpitude is called legal misconduct and has a very wide meaning. Legal misconduct means misconduct in judicial sense arising from some honest though erroneous breach and neglect of duty and responsibility on the part of the Arbitrator causing miscarriage of justice. It includes failure to perform the essential duties which are cast upon the arbitrator as such. It also includes any irregularity of action which is not consonant with general principles of equity and good conscience which ought to govern the conduct of an arbitrator.
15. It is well accepted that the Government employees constitute a category distinct from those in the private sector being charged with the responsibility not only towards Government but also towards public with whom they come in contact during the course of the discharge of their duties. The essence of public service is the sense of discipline to which all Government employees are subject to privileges to which in general, they are entitled to. These two aspects are fully covered by two sets of service rules i.e. Central Civil Services (Conduct) Rules, 1964 and Central Civil Services (Classification, Control and Appeal) Rules, 1965. A Government servant, who violates any provision of the CCS (Conduct) Rules, 1964, can be imposed, for good and sufficient reasons, any of the penalties mentioned in Rule 11 of CCS (CCA) Rules, 1965. The Government employees are required to adhere to certain standards of conduct, both in their official and private capacities. These requirements have been laid down in CCS (Conduct) Rules, 1964. Of these, Rule 3(1) is most sweeping in its coverage and operation, which reads as under:-
(1) Every Government servant shall at all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
2(i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties, or in exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior;
(iii) The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter;
(iv) A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing.]
16. The fundamental requirements of these Rules are integrity, honesty, efficiency and good behavior of public servant. Most of the disciplinary proceedings arise from the breach of these rules, charges of lack of integrity, wary from naked corruption and abuse of official position. Integrity, on the other hand, is wholesome uprightness honesty and purity; departmental action can be taken against the public servant for lack of integrity. Devotion to duty is the third aspect. A public servant, who habitually fails to perform task assigned to him, shall be deemed to be lacking in devotion to duty. Every Government servant holding a supervisory post shall take all possible steps to ensure that his subordinates maintain absolute integrity and devotion to duty. Rule 1(4) expects that the conduct of the employee should conform to the ordinary norms of the ancillary prevailing in the society and one should not violate the laws of the land. Conduct unbecoming of a Government servant has been left to the discretion to the Government. A Government servant should not bring discredit to the services. Action can also be taken for the past misconduct committed by the Government Servant. Even not vacating quarter /mis-utilizing of the advance taken from the government refunding or not refunding in time even at the private level amounts to misconduct, unbecoming of a Government servant as does moral turpitude. Rule 3-A of the Conduct Rules, 1964 deals with Promptness and Courtesy:
No Government servant shall-
(a) in the performance of his official duties, act in a discourteous manner;
(b) in his official dealings with the public or otherwise adopt dilatory tactics or willfully cause delays in disposal of the work assigned to him.
Rule 3-B deals with Observance of Governments policies:
Every Government servant shall, at all times-
(i) act in accordance with the Governments policies regarding age of marriage, preservation of environment, protection of wildlife and cultural heritage;
(ii) observe the Governments policies regarding prevention of crime against women.
Rule 3-C deals with Prohibition of sexual harassment of working women:
(1) No Government servant shall indulgence in any act of sexual harassment of any woman at her work place.
(2) Every Government servant who is in-charge of a work place shall take appropriate steps to prevent sexual harassment to any woman a such work place.
Rule 4 of Conduct Rules, 1964 prohibits employment of near relatives of Government servants in Companies or firms. For the sake of greater clarity, Rule 4 is reproduced as under:-
4. Employment of near relatives of Government servants in companies or firms (1) No Government servant shall use his position or influence directly or indirectly to secure employment for any member of his family in any company or firm.
(2) (i) No class I Officer shall, except with the previous sanction of the Government, permit his son, daughter or other dependant, to accept employment in any company or firm with which he has official dealings or in any other company or firm having official dealings with the Government.
Provided that where the acceptance of the employment cannot await prior permission of the Government or is otherwise considered urgent, the matter shall be reported to the Government; and the employment may be accepted provisionally subject to the permission of the Government.
(ii) A Government servant shall, as soon as he becomes aware of the acceptance by a member of his family of an employment in any company or firm, intimate such acceptance to the prescribed authority and shall also intimate whether he has or has had any official dealings with that company or firm.
Provided that no such intimation shall be necessary in the case of a Class I Officer if he has already obtained the sanction of, or sent a report to the Government under Clause (i).
(3) No Government servant shall in the discharge of his official duties deal with any matter or give or sanction any contract to any [company or firm] or any other person if any member of his family is employed in that [company or firm] or under that person or if he or any member of his family is interested in such matter or contract in any other manner and the Government servant shall refer every such matter or contract to his official superior and the matter or contract shall thereafter be disposed of according to the instructions of the authority to whom the reference is made. Rule 8(5)(b) of the CCS (Pension) Rules, 1972 provides as under:-
the expression grave misconduct includes the communication or disclosure of any secret official code or password or any sketch, placen, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923), (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State. However, it is not an exclusive definition of grave misconduct as has been given in the afore Rule 8(5)(b).
17. The Honble Supreme Court in Union of India & Ors. Vs. B.Dev, (1998)7 SCC 691, held as under:-
9. The enquiry was continued under Rule 9 of the CCS (Pension) Rules after the date of superannuation of the respondent. The Tribunal is of the view that "grave misconduct" as defined in Rule 8 (5), explanation (b) (sic) of the CCS (Pension) Rules has not been committed. Hence no action for grave misconduct can be taken under Rule 9. Now, under Rule 8 pension is subject to future good conduct. Under sub-rule (3) of Rule 8 if the authority considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order, serve upon the pensioner notice as specified therein, take into consideration the representation, if any, submitted by the pensioner; and under sub-clause (4), where the authority competent to pass an order is the President, the Union Public Service Commission shall be consulted before the order is passed. Sub-rule (5) referred to by the Tribunal does not appear to be relevant in the present case. It deals with appeals from orders passed by an authority other than the President. Under the explanation (b) to Rule 8, the expression 'grave misconduct' is defined "to include the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 . . . . . . . . . . . ." The explanation clearly extends grave misconduct to cover communication of any official secrets. It is not an exhaustive definition. The Tribunal is not right in concluding that the only kind of misconduct which should be held to be grave misconduct is communication etc. of an official secret. There can be many kinds of grave misconduct. The explanation does not confine grave misconduct to only the type of misconduct described there.
18. One has to distinguish here as to what is misconduct as distinguished from grave misconduct. In laymen language, misconduct is violation of any of the rules contained in CCS (Conduct) Rules, 1964. On the other hand, grave misconduct is misconduct, which has been committed willfully. In other words, elements of mens rea have to be necessarily present. What constitutes a grave misconduct is a matter of Government perception or judicial conscience of the court. Assessment of the gravity of the offence is necessary in order to determine the quantum of punishment. In the case of B.V. Kapoor Vs. Union of India, the Honble Supreme Court quashed the order of dismissal where it had been awarded in the case of absence of duty for a period of two months and odd days. However, we rest at the point that the applicant has been charged in the following manner in the charge memorandum dated 26.6.2012:-
Shri S.S. Karkhal, SAG/IRPS, Northern Railway while functioning as Sr. DPO, Northern Railway, Firozpur, during 2007-2008, committed gross misconduct, the details of which are mentioned hereinunder:-
In a selection to fill up 21 posts of Ticket Collectors in Grade Rs.3050-4590 against 16 2/3% departmental quota for Group D employees, he deliberately and irregularly approved relaxation of eligibility conditions for SC/ST candidates, as detailed in the statement of imputation. This enabled two ineligible candidates to appear in the selection, one of whom was his own brother.
By the above acts of commissions and omissions, the said Shri S.S. Karkhal failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a railway servant, thereby contravening Rule.1(i), 3.1(ii) and 3.1(iii) of the Railway Services (Conduct) Rules, 1966.
19. From the above, we are of the opinion that the charge-sheet is quite clear and it makes out misconduct in the terms discussed above against the applicant. We have also stated that we do not want to delve further into the matter by making appreciation of the evidence tendered for the simple reason that it is beyond our scope of consideration and any findings at this stage would be in absence of full evidence, which would include examination and cross-examination of witnesses. It would also have bearing on the departmental proceedings to be conducted. Therefore, prima facie, it appears that the charge-sheet makes out a charge in the departmental proceeding against the applicant. We leave the mater at that. The issue is accordingly decided against the applicant.
20. Now we take up the issue no.3 that whether the proceedings are barred by the delay. Admittedly, while the alleged act has taken place during the year 2007-08, charge-sheet was issued on 26.06.2012 which involves delay of so many years. There is no hard and fast rule as to what period would constitute delay. It has been left to the discretion of the Court. In this regard, law has been laid down by the State of Andhra Pradesh Vs. N.Radhakrishan, 1998(4) SCC 154 as under:
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
21. In the State of Punjab Vs. Chaman Lal, (1995)2 SCC 570, the Honble Supreme Court has held as under:-
9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. They are:
(A) That he was transferred from the post of Superintendent of Nabha Jail and had given (sic up) charge of the post about six days prior to the incident. While the incident took place on the night intervening 1/1/1987/2/1/1987 the respondent had relinquished the charge of the said office on 26/12/1986. He was not there at the time of incident.
(B) The explanation offered by the government for the delay in serving the charges is unacceptable. There was no reason for the government to wait for the Sub-Divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration. Head of the Department, itself. The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub-Divisional Magistrate was not so connected. In the circumstances, the explanation that the government was waiting for the report of the Sub-Divisional Magistrate is unacceptable. Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry.
(C) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry.
22. This view has been supported by the Honble Supreme Court in a number of other decisions. In the instant case, we take note of the submissions of the learned counsel for the respondents that the Government procedures involve time taking and lengthy consultation before a charge-sheet is issued. These procedures have been put in place so as to ensure that no innocent person is harassed. Taking an overall view of the situation, including the nature of the alleged misconduct and circumstances leading to the charges and the nature of inquiry required to be done, we do not find the delay caused so unreasonable as to vitiate the whole proceeding. The issue is answered accordingly.
23. Insofar as issue no.4 is concerned, we find that no evidence whatsoever has been forthcoming to establish malice. No person has been impleaded by name nor have the charges been preferred in specific terms. It has to be borne in mind that malice is easier to allege then to prove. In the State of Punjab & Anr. Vs. Gurdial Singh & Ors., (1980)2 SCC 471, the Honble Supreme Court has held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power- sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
24. These decisions have also been relied upon by this Tribunal in T.M. Sampath Vs. Union of India, (OA No. 188/2012) decided on 30.08.2013 and Naresh Wadhwa Vs. Union of India (OA No. 810/2013) decided on 29.10.2013.
25. From the above, we arrive at the conclusion that apart from alleging malafide in general terms, no evidence has been forthcoming in this regard. Therefore, this issue has to be necessarily decided against the applicant.
26. Now coming to the last of the issues, it has been our finding that we have seen the scope of judicial inquiry, which is in a narrow compass. The Tribunals/Courts have been prohibited by the Honble Supreme Court in a number of landmark decisions, some of which have been enumerated earlier in this judgment that the Tribunals cannot foray into appreciating the evidence or assume the role of appellate authority. We also find that misconduct is borne out from the charges. We have further seen that delay by itself is not a sufficient cause for quashing the charge-sheet. It has to be borne out in relevance to the charges leveled. Where the delay is sufficiently explained, it does not by itself provide any good ground to quash the proceedings.
27. In totality of the facts and circumstances of the case, we find the instant OA to be devoid of merit and the same is, therefore, dismissed. No order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
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