Central Administrative Tribunal - Delhi
Mohd. Salim Beg vs Secretary on 6 January, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3454/2012 Order reserved on 13.11..2013 Order pronounced on 03.1.2014 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Mohd. Salim Beg S/o Shri Abdul Hakim R/o GH 72, Windsor Park, Indirapuram, Ghaziabad Serving as Director, Telecom Engineering Centre, Ministry of Communication and Information, New Delhi. Applicant (By Advocate : Shri M.K. Bhardwaj) Versus 1. Secretary, Ministry of Communication and Information, Government of India, Sanchar Bhawan,20, Ashoka Road, New Delhi-110 001. 2. Under Secretary, Ministry of Communication & Information, Government of India, Sanchar Bhawan,20, Ashoka Road, New Delhi-110 001. .Respondents (By Advocate: Shri Krishna Kumar) ORDER
Honble G. George Paracken,M(J) Applicant is presently working as Director, Telecom Engineering Centre. He has challenged the impugned charge memo dated 20.08.2007, disagreement note of the Disciplinary Authority dated 16.06.2011 and the final order of the Disciplinary Authority dated 30.08.2012 imposing upon him the penalty of reduction to lower stage in the time scale of pay by two stages for a period of one year with further direction that he will earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of pay.
2. The brief facts of the case are that the Applicant was served with the Charge Memo No.8-136/2006-Vig.II dated 20.08.2007 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. The statement of Articles of Charge framed against him are as under:-
Article-I That Shri Salim Beg while posted and functioning as DE (OCB-Indoor), BSNL, Moradabad during the period 1998-99 committed gross misconduct inasmuch as he tampered with the Exchange computer and the Log of the exchange for providing ISD facilities on two ISD barred telephones at the TAX level and subsequently deleting the commands used in tampering the Exchange and Log of the Exchange.
Article-2 That the said Shri Salim Beg while posted and functioning as DE, OCB/TAX, BSNL, Moradabad during the period 2001-2002, committed gross misconduct inasmuch as he failed to perform his duties as incharge Moradabad TAX, as a result of which unscrupulous elements innumerous unmetered ISD calls from the dependent exchanges of Thakurwara, Bhojpur and Dingarpur by tampering the computer of the said exchanges which resulted in huge loss to BSNL worth minimum of Rs.34,77,966.00.
Article-3 That the said Shri Salim Beg while posted and functioning as DE (TAX), BSNL, Moradabad during the period 2001-2002 committed gross misconduct inasmuch as he abused his official position and deliberately favoured his real elder brother Shri Mohammed Akram and issued him a false experience certificate, which made him eligible to participate in BSNL contracts.
3. Applicant made a representation denying those charges and requested the Disciplinary Authority to drop them. However, the Disciplinary Authority proceeded with the enquiry and appointed an Enquiry Officer and Presenting Officer to enquire into the matter. The Applicant participated in the proceedings and after completion of the enquiry, the Enquiry Officer submitted his report dated 21.10.2010 holding that the aforesaid charges have not been proved. The Disciplinary Authority had sought the advise of the Central Vigilance Commission (CVC for short) on the said report and the CVC, vide its Memorandum dated 31.05.2011.2011, advised the Disciplinary Authority to impose a minor penalty on the Applicant. The relevant part of the said advice is as under:-
2. The Commission has perused the inquiry report and the comments of the disciplinary authority thereon and observed that the password of the exchanges was entrusted to Shri Sanjiv Tyagi, DGM under the order of GMTD due to complaints against Shri Salim Beg. The unscrupulous elements made numerous unmetered ISD calls by tampering the computer of the said exchanges resulting in loss to BSNL. Therefore, the Commission would advise as under:-
Imposition of minor penalty on Shri Mohd. Salim Beg, the then DE.
4. The Disciplinary Authority, thereafter, recorded a disagreement note with regard to first Article of Charge and furnished the same to the Applicant along with the copy of the aforesaid advice of the CVC. The Disciplinary Authority has also given liberty to the Applicant to make such representation as he may wish to make in the matter vide Memorandum No.8/136/2006-Vig.II dated 16.06.2011. The said disagreement note reads as under:-
The CO was overall incharge of the exchange, as DE (OC B-Indoor). The password for subscriber management was vested with Shri R.N. Chkaraborty, SDE, as per the versions of sW-14 and sW-7. The detailed investigation report, purported to have been done, by Shri P.K. Srivastava, GM(SW-7) was not available as has been indicated in the charge memo. On the other hand the exhibit D-12 which is a letter/report from AGM (VIG.) which recommended for closure of the complaint against the CO. However, the CO was overall incharge of the exchange being the DE-OCB (Indoor). He was supposed to observe the duties action of his subordinates and to take corrective action for the deficiencies. Since password management was with his subordinates, he failed to supervise the same. Hence, the allegation of lack of devotion to duty is proved. Hence the article can be held as proved.
5. The Applicant made his representation dated 16.7.2011. In the said representation he stated that since the disagreement note of the Disciplinary Authority was only with regard to the findings of the Enquiry Officer on Article-I of the Charge Memo, it was presumed that the Disciplinary Authority has agreed with the findings of the Enquiry Officer on other Articles of Charges. However, he submitted that the aforesaid disagreement note was not in accordance with the provisions contained in CCS (CCA) Rules, 1965. In this regard he has relied on sub-rule (2) of Rule 15 of the CCS (CCA) Rules, 1965 which provides that the Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. In this regard he has also relied upon the Government of India, Department of Personnel OM No.11011/22/94-Estt.(A) dated the 27th November, 1995 which states that when the Disciplinary Authority decides to disagree with the enquiry report, he should communicate the reasons for such disagreement to the Charged Officer. Moreover, the Article-I of the Charge and statement of imputations for the said article of charge does not contain any allegation that password management was with the sub-ordinates of the Applicant and he failed to supervise them. Therefore, such an allegation made by the Disciplinary Authority in its disagreement note is absolutely an extraneous factor. Further, the disciplinary authority has not explained in his disagreement note that Shri R.N. Chakraborty was not performing his assigned duty and the Applicant failed to supervise him and did not take any corrective action for his deficiencies, if any. Had any deficiencies been noticed during investigation of the case, disciplinary action against Shri R.N. Chakraborty would also have been taken by the Department which has not been done and it clearly shows that there was no irregularity on the part of his subordinate and hence no supervisory lapse occurred on his part. Therefore, there was no lack of devotion to duty on his part. Hence the disagreement was not justified. There was also no evidence on record to show that ISD was released on the two telephone numbers 351873 and 351874. SW-7, Shri P.K. Srivastava, the then TDM, Moradabad in his deposition had stated that there was no ISD facility available on those two telephone numbers. Further, there was absolutely no evidence on record led during inquiry that the said two telephones 351873 and 351874 were ever having ISD facility and the alleged STD/ISD calls were ever made from said two numbers. Even the print out of the OCB Exchange showing status of the said numbers was not adduced during inquiry. The Applicant requested for production of detailed bills record in respect of the above referred two telephone numbers as defence documents but the same was not provided to him during inquiry. Thus, there was also no evidence that STD/ISD calls were ever made from said two numbers which further showed that no irregularity was caused by Shri R.N. Chakraborty, SDE and hence no supervisory lapse was attributable to the Applicant. Further, in the Article I of charge memo as well as the disagreement memo it has been stated that the investigation done by the then TDM/GM namely, Sh. P.K. Srivastava was not available. Secondly, the AGM(Vig) of the Circle had also recommended for the closure of the case against him as there were no evidences to show any irregularity on his part. Again in Article I, it has been mentioned that the owner of the house were the telephones were installed was examined. A lot of emphasis was given in Article I to the statement of the owner of the house to strengthen the allegation against the Applicant. The name of the owner viz. Sh. Haji Shamim was also made a part of the list of the witnesses, but his statement was not produced during the course of inquiry. He was also not produced by the prosecution during the inquiry. The so called statement of Sh. Haji Shamim as mentioned in Article I do not exist at all. In the disagreement note, it is stated that as DE (OCB-Indoor), the Applicant was supposed to observe the duties/action of his subordinates but suspicion, surmise or conjecture, however strong, cannot take the place of proof or evidence. The Inquiring Authority/Disciplinary Authority was required to state and evaluate the mass of evidence before him and satisfy himself that the evidence produced during inquiry leads to a reasonable conclusion that in the preponderance of probability the Charged Officer is guilty of the lapses alleged against him as per the charge sheet served on him. On the contrary the Disciplinary Authority has acted on surmises by ignoring the law laid down by the Apex Court in the case of M.V. Bijlani Vs. U.O.I. and Others 2006 SCC (L&S) 919 wherein it has been held as under:-
23. Evidently, the evidences recorded by the Enquiry Officer and inferences drawn by him were not commensurate with the charges. If it was a case of misutilisation or misappropriation, the Appellant should have been told thereabout specifically. Such a serious charge could not have been enquired without framing appropriate charges. The charges are otherwise vague. We have noticed hereinbefore that the High Court also proceeded on the basis that the non-maintenance of diary amounted to misutilisation of copper wire.
24. Mr. Verma, when questioned, submitted that the Appellant might have utilised the same on unsanctioned works. If that be so, a specific charge to that effect should have been framed.
25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
26. The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the Appellant. The Tribunal also, thus, failed to discharge its functions properly.
In this regard, the Applicant has also relied upon the judgment of the Apex Court in the case of Union of India Vs. H.C. Goel AIR 1964 SC 364 wherein it has been held as under:-
.Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney-General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this connection and only incidentally that it may be relevant to add that the U. P. S. C. considered the matter twice and came to the firm decision that the main charge against the respondent had not been established.
6. However, the Disciplinary Authority, vide its order dated 30.08.2012, imposed upon him the penalty of reduction to lower stage in the time scale of pay by two stages for a period of one year with further direction that he will earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of pay. The relevant part of the said order reads as under:-
4. The Inquiring authority vide its report dated 21.10.2010 held all the charges against the CO as Not proved. The disciplinary authority, after considering the Inquiry report, comments of CVO/BSNL, thereon and other relevant records of the case, decided that the charges in Article 1 of the charge memo may be held as proved and in this regard disagreement note was recorded in the case and it was proposed to impose minor penalty on the CO. The findings on the remaining two Article of charges were accepted.
5. The case was referred to the CVC seeking their second stage advice who concurred with the aforesaid disagreement and advised imposition of minor penalty against the CO. The second stage advice of the CVC was accepted by the disciplinary authority and a copy of the same alongwith a copy of the Inquiry report and disagreement note was furnished to the CO for making representation, if any.
6. The CO furnished his representation dated 16.07.2011 in the case. The same was examined and it was noticed that no new/fresh grounds were furnished while seeking exoneration from the charges. The disagreement of the disciplinary authority was not considered extraneous to the charges as alleged by the CO. The CO was overall in-charge of the exchange during the period when grave irregularities were committed. It remains a fact that huge loss was caused to the exchequer due to lack of devotion to duty on the part of the CO who failed not only to detect the huge loss but also could not prevent the fraudulent activities going on in the Exchange during his tenure. Therefore, the CO cannot be absolved of the charge of lack of devotion to duty.
Thereafter, the case was referred to the UPSC with the approval of the disciplinary authority seeking their statutory advice with regard to the quantum of penalty that may be imposed on the CO.
The UPSC vide their advice No.F.3/249/2011-S.I dated 24.07.2012 have stated as follows :-
4. The case records have been examined by the Commission carefully and their Article wise observations are as follows.
4.2 The Commission observe that as regards Article-I of the Charge, Shri P.K.Srivastava, the then TDM, Moradabad, who conducted the preliminary inquiry, has concluded that Shri Salim Beg (the C.O.) only has provided STD/ISD facility to these subscribers and that he had tampered with the meter reading also which clearly established a prima-facie case against the C.O. The I.O. has, however, contended that the report of Shri Srivastava is not supported by any oral or documentary evidence taken on record during investigation and that action taken on the report of Shri Srivastva is not supported by any oral or documentary evidence taken on record during investigation and that action taken on the report of Shri Srivastava too has not been brought out by the prosecution during the course of inquiry. The I.O. has referred to another inquiry into the complaint against the CO, conducted by Shri Kamboj. AGM(Vig.), whereafter a report had been sent to the CGMT, Utter Pradesh, recommending that the case may be closed as the charges are not proved. The I.O. has also observed that Shri R.N.Chakravorty, SDE (OCB) had the subscriber management password and that the prosecution has not relied upon any additional facts or evidence apart from the report of Shri Srivastava. On this basis the IO has concluded that this Charge is not proved against the CO. The D.A. has not agreed with these findings of the I.O. and has recorded his disagreement.
4.1.1. The Commission further observe that the C.O. was the overall incharge of the Exchange as DE (OCB-Indoor) during the period when grave irregularities were committed. Though the password for subscriber management was vested with Shri R.N.Chakravorty, SDE as per deposition of witnesses, the master password including the password management of the exchange remained with the CO. In view of this, the ISD/STD facility to the two non-STD numbers (351873 and 35184) could have been provided either at the level of Shri R.N.Chakravorty, or at the level of DE, OSB (Shri Salim Beg, the CO). It is observed that a printout of YJDB log file has not been produced during the inquiry which would have shown the command having been given for providing ISD facility on the said two numbers and the terminal from which it was given. Further, threshold print out of the two numbers also does not seem to have been produced during inquiry.
4.1.3 The Commission further observe that in the absence of supporting documents such as the original Inquiry Report of the TDM, Moradabad, print out of YJDB file and threshold print out of the said two telephone numbers, direct involvement of the C.O. does not get corroborated by any other documentary or oral evidence. However, it has also been brought out that the two telephone numbers in question belonged to the C.O.s relatives (though distant). As such, there exists a strong possibility that the STD/ISD facility was released unquthorizedly under the influence of the C.O. In any case, there is no doubt that the C.O. being the overall incharge of the Exchange, was expected to observe the duties/actions of his subordinates and to take corrective actions for deficiencies. Thus, the Charge of lack of devotion to duty is definitely established against the C.O. In view of this, the Commission conclude that the Charge of lack of devotion to duty is proved, and to this extent, Article-I of the Charge is proved against the C.O. 4.3. The Commission further observe that as regards Article-II and Article-III of the charge against the C.O., the charges have not been held as proved by I.O. as well as D.A. and, therefore, the same have not been examined in the Commission.
In the light of their findings as discussed above, and after taking into account all other aspects relevant to the case, the Commission consider that the ends of justice would be met in this case if the penalty of reduction to lower stage in the time scale of pay by two stages for a period of one year with further direction that he will earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of pay is imposed on the C.O., Shri Mohd. Salim Beg. They advise accordingly.
The disciplinary authority has considered the case in its entirety. The CO was the overall incharge of the exchange and he failed to prevent the illegal activity which was carrying on in the exchange during his tenure. AS such, he cannot be absolved of the charge of lack of devotion to duty. The UPSC have also concluded that charge of lack of devotion to duty is definitely established against the CO.
Now, therefore, after taking into consideration the records of the case, advice of the UPSC, overall circumstances of the case, the President, being the Disciplinary Authority, hereby orders that penalty of reduction to lower stage in the time scale of pay by two stages for a period of one year with further direction that he will earn increments of pay during the period of such reduction and on expiry of such periodthe reductions will not have the effect of postponing the future increments of pay be imposed on the CO, Shri Mohammad Salim Beg.
The receipt of this order shall be acknowledged by Shri Mohd. Salim Beg.
By order and in the name of the President.
7. The Applicant has, therefore, challenged the aforesaid Memorandum of Charges dated 20.08.2007, the Disagreement Note dated 16.06.2011 and the final order of penalty of the Disciplinary Authority dated 30.08.2012 in this Original Application. According to the learned counsel for the Applicant, the disagreement note of the Disciplinary Authority is illegal and arbitrary inasmuch as it does not contain any reason whatsoever as to why it disagreed with the findings of the Enquiry Officer. After a detailed enquiry, unless reasons for disagreement are not given, the delinquent employee will not be in a position to give any representation against it. Further, according to him, the disagreement note is based on extraneous considerations and it has nothing to do with the evidence brought on record in the Enquiry Officers report. While the Disciplinary Authority disagreed with the Enquiry Officers report, it has to highlight the errors/illegalities committed by the Enquiry Officer in either ignoring the available evidence or taking into account some extraneous material. In this regard he has referred to the statement of the Disciplinary Authority in its disagreement note to the effect that the Applicant was overall incharge of the exchange being DE-OCB (Indoor), therefore, he was supposed to observe the duties and action of the subordinates and to take corrective deficiencies. Again the Disciplinary Authority in its disagreement note has observed that since the password management was with his subordinates, he failed to supervise the same. Hence, the article can be held as proved. The learned counsel for the Applicant has submitted that the aforesaid observation of the Disciplinary Authoritys is totally extraneous to the charge leveled against him.
8. Further, according to the learned counsel for the Applicant the impugned penalty was imposed upon the Applicant by the Disciplinary Authority without application of mind. It was only done at the dictates from the UPSC. He has also stated that it is evident from the impugned order that whatever the UPSC has advised him, he has simply followed it without any discussion on them. Therefore, the impugned order is liable to be quashed and set aside.
9. The other contention of the Applicant is that the Disciplinary Authority has failed to take into account the detailed written statement filed by the Applicant. In this regard he has submitted that none of his contentions have been considered by the Disciplinary Authority and he has completely gone by the advice of UPSC and CVC before imposing the punishment.
10. Learned counsel for the Applicant has also argued that the allegations made against the Applicant do not constitute any misconduct. The charges were related only to procedural lapses and not for committing any deliberate wrong for personal gain. Once the action has been taken without any ill motive, the same cannot be construed as misconduct. In this regard he has relied upon the judgment of the Apex Court in the case of Union of India Vs. J. Ahmed AIR 1979 SC 1022. As per the said judgment misconduct means, misconduct arising from ill motive; acts of negligence, error of judgment and innocent mistake do not constitute misconduct. In another judgment in the case of Inspector Prem Chand Vs. Government of NCT of Delhi JT 2007 (5) SC 294 the Apex Court has again ruled that act of negligence, errors in judgment, innocent mistakes, do not constitute any misconduct. The Applicant has also alleged that the very purpose of initiating enquiry against him was only to harass him and to prevent him from getting any promotions. In this regard he has also pointed out that the Disciplinary Authority took 5 years to complete enquiry against him but the delay was not attributable to him in any manner because in the meantime number of juniors have been promoted to higher scale.
11. The learned counsel for the Applicant has also submitted that the impugned order is liable to be dismissed on the ground of unexplained delay in issuing the charge sheet. It is evident from the charge itself that the alleged incident had occurred while he was posted and functioning as DE (OCB-Indoor) BSNL Moradabad during the period 1998-99. Respondents have not given any reason as to why the aforesaid incident has not been probed within a reasonable time and why it took more than 7 years to even issue a charge memo in that regard. In this case the learned counsel for the Applicant has relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh and Another 1991 (16) ATC 514 wherein it has been held as under:-
. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunals order and accordingly we dismissed this appeal.
12. Further, he has relied upon the judgment of State of Andhra Pradesh Vs. N. Radhakrishan JT 1998 (3) SC 123 wherein it has been held 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 enterusted 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.
13. In the case of State of Punjab and Others Vs. Chamal Lal Goyal 1995 (2) SCC 570 wherein it has been 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.
14. Further, in the case of P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SCC 636 the Apex Court held as under:-
38. ..The delay has been unconscionable and it has greatly jeopardized the Applicants defence. CVC guidelines and directions of DOP&T in conducting the disciplinary proceedings within time limit have been flouted..
15. Again, he has relied upon the judgment of this Tribunal in OA No.471/2010 B.A. Dhayalan Vs. UOI decided on 13.07.2010 wherein it has been held as under:-
11. In the facts and circumstances, as mentioned above, we are of the firm view that finalization of proceedings against the applicant has been delayed beyond measures and without any justifiable explanation. It has been authoritatively held on number of occasions that when there is unexplained delay, the proceedings would be vitiated. There is no straitjacket formula as to whether because of delay in initiating or finalizing the matter the proceedings would be vitiated so as to be set aside. The same shall depend upon facts and circumstances of each case. Since what we have observed above is a settled proposition of law, there would be no need to burden this judgment by making mention of all the judgments on the issue. We may, however, refer to the judgment of the Honble Supreme Court in State of A.P. v N. Radhakrishnan [(1998) 4 SCC 154]. Brief facts of the said case reveal that a report came to be sent by Director General, Anti-Corruption Bureau on 7.11.1988 to the State Government against Radhakrishnan who was Assistant Director of Town and Country Planning. The same was with regard to irregularities in deviations and unauthorized construction in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. It was stated in the report that in September, 1987 these premises were inspected and irregularities in deviations and unauthorized constructions were noticed. Town planning staff of the corporation in collusion with builders permitted them to flout building bye-laws and the staff abused their official position for obtaining pecuniary advantage for themselves and the builders causing loss of revenue to the corporation in the shape of house taxes. 11 officers including Radhakrishnan, the respondent before the Supreme Court, were held responsible for the abnormal deviations and unauthorized constructions. On the basis of the report aforesaid, the State issued two memos dated 12.12.1987, one in respect of three officials including the respondent, and the other naming seven other officials. With regard to memo against the respondent and two others, enquiry officer was appointed to conduct a detailed enquiry. He was directed to complete his enquiry within a period of two months and submit his report. The enquiry may be going on, but insofar as the articles of charge are concerned, the same were served upon the respondent on 31.7.1995. The respondent meanwhile was promoted as Joint Director of Town and Country Planning on 10.9.1991. The Government thereafter appointed an enquiry officer by order dated 7.9.1992. The said enquiry officer did not submit his report and his term of office had expired on 20.11.1992. Another enquiry officer was appointed who was transferred and, therefore, yet another enquiry officer was appointed on 17.6.1993. All these enquiries, it appears, were preliminary enquiries before the chargesheet came to be served upon the employee. The last enquiry officer on 16.8.1994 informed the authorities concerned that connected files and records had been received from the appropriate authority recently and promised that he would submit his report as early as possible. No report, however, was submitted by him and he too was transferred. Thereafter orders were issued on 20.3.1995 appointing another enquiry officer. At this stage it was observed that the prescribed procedure had not been followed. Therefore, the said order appointing enquiry officer was cancelled vide order dated 16.6.1995. It is at this stage that the memorandum of charge was issued to the employee on 31.7.1995. The employee complained of delay in finalizing the departmental proceedings before the Tribunal, which observed that the memorandum dated 31.7.1995 related to incidents that had happened ten years or more prior to the date of the memorandum and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting enquiry against the employee. The explanation given by the State that for some reason or the other the enquiry officers were being changed from time to time and on that account the enquiry could not be conducted, did not find favour with Tribunal. It is against the order of the Tribunal that an appeal came to be filed before the Honble Supreme Court. We may not be interested in other issues that might have been involved in the appeal, but insofar as the delay in initiating or finalizing the enquiry against the delinquent employee is concerned, in the facts as mentioned above, the Honble Supreme Court observed as follows:
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.
16. He has further relied upon the judgment of the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 where it has been held that mere production of documents is not enough but the contents of the documentary evidence has to be proved. The relevant part of the said judgment reads as under:-
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
17. Respondents have filed their reply. According to them, Applicant has not exhausted all the remedies available to him under the service rules. According to them, the Applicant should have preferred a review application against the penalty as available under the rules, hence this OA is liable to be dismissed on this ground alone. They have also stated that it was tentatively decided to proceed further in the matter under Rule 16 for minor penalty and the same was conveyed to the Applicant whereas the original charge memo was issued to the Applicant under Rule 14 for major penalty and it proves that all the decisions taken by the Disciplinary Authority were with due application of mind and wisdom. They have also stated that a lenient view has already been taken by the Disciplinary Authority against the Applicant. Further, according to the Disciplinary Authority, the Enquiry Officers report was duly considered by him. Further, after considering the matter in its entirety, detailed disagreement note was recorded and the same was submitted for approval of the Disciplinary Authority who accorded its approval on 28.02.2011. Therefore, it is quite evident that the action to record disagreement note was with due application of mind. They have further stated that in this case approval of the Disciplinary Authority disagreeing with the Enquiry Officers report was accorded on 28.02.2011 and only thereafter the case was sent to the CVC on 09.03.2011 seeking their second stage advice and the same was received on 31.05.2011. Therefore, according to them, there is no merit in the averment that disagreeing with the Enquiry Officers report was under the influence of the CVC. Moreover, a memorandum expressing the proposed disagreement note was furnished to the Applicant on 16.06.2011.
18. They have further submitted that the reply of the Applicant was duly considered by the Disciplinary Authority and only thereafter it was decided to refer the case to the UPSC on 14.11.2011 for deciding the quantum of punishment. The advice of the UPSC dated 24.07.2012 was considered by the Disciplinary Authority and after taking into consideration all the relevant factors in totality the same was accepted by the DA. Final order imposing the penalty was issued on 30.12.201 and a copy of the UPSCs advice was also furnished to the Applicant. They have also stated that there is no provision in the rules in vogue to furnish a copy of the UPSCs advice prior to the issue of the final penalty order.
19. Learned counsel for the Respondents has also relied upon the judgment of the Apex Court in B.C. Chaturvedi Vs. Union of India 1995 (6) SCC 749 in which it has been held that the scope and power of the Tribunal in judicial review in disciplinary proceedings is very limited. The relevant part of the said judgment reads as under:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
20. He has also relied upon the judgment of the Apex Court in Union of India Vs. H.C. Goel AIR 1964 SC 364 wherein it has been held as under:-
20. This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311 (2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney-General, we ought to add that he did not seriously dispute this position in law.
21. He, however, attempted to argue that if the appellant acted bona fide, then the High Court would not be justified in interfering with its conclusion though the High Court may feel that the conclusion is based on no evidence. His contention was that cases, where conclusions are reached by the Government without any evidence, could not, in law, be distinguished from cases of mala fides; and so he suggested that perverse conclusions of fact may be and can be attacked only on the ground that they are mala fide, and since mala fides were not alleged in the present case, it was not open to the respondent to contend that the view taken by the appellant can be corrected in writ proceedings.
22. We are not prepared to accept this contention. Mala fide exercise of power can be attacked independently on the ground that it is mala fide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bona fide exercise of power. But we are not prepared to hold that if mala fides are not alleged and bona fides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are prepared to accept the learned Attorney-General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.
21. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri Krishna Kumar. The basic issue in this case is whether the Disciplinary Authority was justified in disagreeing with the report of the Enquiry Officer to inflict a penalty on the Applicant and if so, the manner in which it was done was in accordance with the rules and prescribed procedure following the principles of natural justice. According to the Enquiry Officers report, all the three charges leveled against the Applicant have not been proved. Initially, the Disciplinary Authority had no disagreement with the aforesaid findings of the Enquiry Officer. Therefore, in terms of Rule 15(2) of the CCS (CCA) Rules, 1965, the Disciplinary Authority was only required to forward a copy of the said report to the Applicant. Under the very same rule, in case the Disciplinary Authority had any disagreement with findings of the Inquiry Officer, along with the copy of the enquiry report, its own tentative reasons for disagreement note was also to be sent to the Applicant to submit his written representation. However, in this case, the Enquiry Officer has submitted his report on 21.10.2010. Instead of following the aforesaid procedure prescribed in Rule 15(3) ibid, the Disciplinary Authority forwarded the Enquiry Officers report to CVC on 09.03.2011 with its Commission. Thereafter, the CVC came to its own conclusion. According to them, the Commission has perused the inquiry report and the comments of the disciplinary authority thereon and observed that the password of the exchanges was entrusted to Shri Sanjiv Tyagi, DGM under the order of GMTD due to complaints against Shri Salim Beg and the unscrupulous elements made numerous unmetered ISD calls by tampering the computer of the said exchanges resulting in loss in BSNL. Further, the CVC also advised the Disciplinary Authority to impose a minor penalty on the Applicant. Such a procedure is de horse the CCS (CCA) Rules, 1965. Before initiating any disciplinary proceedings, the Disciplinary Authority must be prima facie satisfied that the government servant has committed some misconduct. For this purpose, disciplinary proceedings may be preceeded by an enquiry from the point of view of vigilance. Such an enquiry is in the nature of preliminary enquiry to monitor the conduct and integrity of the government servant. Such enquiry may be held departmentally by the Vigilance Cell or it can be entrusted to the Vigilance Commission. In the present case, the Disciplinary Authority has already got advice of the CVC in the matter vide its letter dated 28.09.2006 before the disciplinary proceedings has been initiated against the Applicant vide Memorandum dated 20.08.2007. According to the Central Vigilance Commission Act, 2003 it is an act to provide for the constitution of a Central Vigilance Commission to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto. Therefore, the acts of the Disciplinary Authority in forwarding the Enquiry Officers report to the CVC vide its letter dated 09.03.2011, was wrong and illegal. Moreover, the CVC vide its OM dated 21.05.2011 re-appreciated the evidence and took a view contrary to the one taken by the Enquiry Officer. Such disagreement with the Enquiry Officer by the CVC is not permissible under the rules. As held by the Apex Court in State Bank of India vs. H.K.Dogra 1995 SLR 358 (P&H) the CVC is not an Appellate Authority over the Enquiry Officer or the Disciplinary Authority. The relevant part of the said judgment is as under:-
8. It is a well settled position of law that the Vigilance Commission's function is purely advisory, and it is not an appellate authority over the inquiry officer or the disciplinary authority and its view are not mandatory, but are merely advisory in nature (Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office Manipal and Anr., J.T. 1991 (2) S.C. 529)..
22. As regards the disagreement note of the Disciplinary Authority is concerned, it is seen that the charge against the Applicant was that he tampered with the Exchange computer and the Log of the exchange for providing ISD facilities on two ISD barred telephones at the TAX level and subsequently deleting the commands used in tampering the Exchange and Log of the Exchange. According to the Enquiry Officer, the said charge was not proved. However, the disagreement note of the Disciplinary Authority was that the Applicant was overall incharge of the exchange being the DE-OCB (Indoor), he was supposed to observe the duties/action of his subordinates and to take corrective action for the deficiencies and since password management was with his subordinates, he failed to supervise the same. The Disciplinary Authority has, therefore, concluded that the said Article of Charge can be held as proved. As rightly argued by the Applicants counsel, the Article of Charge which has been held not proved by the Enquiry Officer and the charge held to be proved by the Disciplinary Authority are totally different. The Disciplinary Authority in its disagreement note does not say that the said part of charge was proved. The second part of the charge was that after tampering with the Exchange computer and the Log of the exchange, the Applicant provided ISD facilities on two ISD barred telephones reducing their meter reading at the TAX level and subsequently deleted the commands used in tampering the Exchange and Log of the Exchange. Again, the Enquiry Officer did not find that part also proved. The Disciplinary Authority also does not say that, that part of the charge was proved. On the other hand what the Disciplinary Authority says was that the Applicant was overall incharge of the exchange being the DE-OCB (Indoor), he was supposed to observe the duties action of his subordinates and to take corrective action for the deficiencies and since password management was with his subordinates, he failed to supervise the same. In other words, what the Disciplinary Authority says in his note is quite extraneous to the charge. Hence, in our considered view, it cannot be said that there was any actual disagreement between the Enquiry Officer and the Disciplinary Authority. If there were any supervisory deficiency on the part of the Applicant, it was a different matter and the Disciplinary Authority was not precluded from taking any action against him, as admissible under the Rules, if it considered necessary. Therefore, the report of the Enquiry Officer that the charge has not been proved against the Applicant is to be sustained.
23. Yet another aspect of the disagreement note is that the Disciplinary Authority has already prejudged the issue as it had already held that the charge can be held to be proved. It is not a tentative finding. In our considered view, such an assertion on the part of the disciplinary authority clearly shows that he was pre-determined and his entire approach was with the closed mind. The Apex Court in its judgment in M/s Siemens Ltd. Vs. State of Maharashtra and others, 2006 AIR SCW 6380, has held when show cause notice is issued with pre-meditation, a writ petition would be maintainable. The said judgment also says that such a show cause notice would show that the statutory authority has already applied its mind has formed his opinion as regards the liability or otherwise of the appellant. Again, in its judgment in Shri Shekhar Ghosh vs. Union of India and another, 2006 (11) SCALE 363, the Apex Court held as under:-
..It is common experience that once a decision has been taken, there is a tendency to upheld it and a representation may not really yield any fruitful purpose.
24. Further, it is observed that after the representation of the Applicant was received on the disagreement note, the Disciplinary Authority referred the case to the UPSC vide its letter dated 14.11.2011 seeking their statutory advice with regard the quantum of penalty to be imposed upon him. The UPSC re-appreciated the evidence in report of Article I of the Charge and held that the Applicant has committed grave irregularities. The UPSC further attributed upon the Disciplinary Authority that it has come to the conclusion that the Applicants case was a clear case of moral turpitude. The UPSC, however, did not examine Article II and Article III of the charges holding that they were not proved by the I.O. as well as Disciplinary Authority. Thereafter, the UPSC concluded that the ends of justice would be met in this case if the penalty of reduction to lower stage in the time scale of pay by two stages for a period of one year with further direction that he will earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of pay is imposed on the C.O. The Disciplinary Authority followed exactly the aforesaid advice of the UPSC and imposed the same punishment upon the Applicant vide impugned order dated 30.08.2012.
25. The aforesaid aspect has also been considered by this Tribunal in OA No.4089/2011 R.P.S. Panwar Vs. U.O.I. and Others decided on 03.12.2013. The relevant part of the said order reads as under:-
15. Therefore, in our considered view, it is the statutory duty of the Disciplinary Authority to consider the Enquiry Report and representation of the Government servant against it and, after due application of its mind, to arrive at its own conclusion as to what punishment has to be imposed upon the Government servant, though it still remains as a tentative one and not the final order. Thus, record of the enquiry forwarded to the UPSC by the Disciplinary Authority for its advice shall contain the proposed penalty also. Likewise, the advice of the UPSC also should include its advise on the proposed penalty. The Disciplinary Authority shall take the advise so tendered by the UPSC into consideration before the final order imposing any such penalty on the Government servant is passed. In other words, consultation with the UPSC on all disciplinary matters affecting the person serving under the Government referred to in Article 320(3)( c) includes the proposed penalty by the Disciplinary Authority to be inflicted upon the Government servant and the UPSC is only to advise the Disciplinary Authority whether the punishment proposed by it is the right one or not. However, the Disciplinary Authority has the discretion to accept or reject the advice of the UPSC as it is not mandatory for the Government to accept all advises of the UPSC. As held by the Apex Court in Pradayan Kumar Bose Vs. Honble Chief Justice of Calcutta High Court AIR 1956 SC 285, consultation with UPSC in every case is not necessary. While constitutional safeguards under Article 311 of the Constitution are available to every person, the safeguard in Article 320(3)( c) is one capable of being taken away. Apex Court also held in State of U.P. Vs. Manbodhan Lal Srivastava AIR 1957 SC 912, Article 320(3)( c) of the Constitution does not confer any rights on a public servant so that the absence of consultation should not afford him a cause of action in a court of law. Again in Ram Gopal Chaturvedi Vs. State of M.P. AIR 1970 SC 158, the Apex Court has held that it is not mandatory to consult State Public Service Commission. In this regard, sub-rules (3) and (4) of Rule 15 of the CCS (CCA) Rules, 1965 regarding action on the inquiry report are relevant and they are reproduced as under:-
(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.
26. As the Enquiry Officer himself held that the charges against the Applicant has not been proved, it is not necessary for us to go into the other contentions of the learned counsel for the Applicant that the charges made against the Applicant were based on surmises and they do not even constitute any misconduct, there was unexplained delay in issuing the charge sheet and in the absence of any witnesses to prove the relied upon documents, the charges cannot be held to be proved.
27. We, therefore, allow this OA with all consequential benefits and quash set aside the disagreement note of the Disciplinary Authority dated 16.06.2011 and its subsequent penalty order dated 30.08.2012 The Respondents shall pass appropriate orders complying with the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh