Central Administrative Tribunal - Bangalore
A. Jayaram vs The Vice President, Csir And Ors. on 31 March, 2003
Equivalent citations: 2004(3)SLJ95(CAT)
ORDER V. Srikantan, Member (A)
1. The applicant was issued with a memorandum of charges under Rule 14 of the CCS (CCA) Rules, 1965 on 18.4.1988. The charge against the applicant was that he used abusive language and assaulted Shri D.V. Venkatasubramanyam, Scientist E-l of Material Sciences Division of NAL, Bangalore, near the NAL Bus Stop on Route 13 at Banashankari III Stage of Bangalore, on 28.12.1987, thereby acting in a manner unbecoming of a council servant violating Rule 3 (l)(iii) of CCS (Conduct) Rules, 1964. The applicant submitted his reply dated 15.6.88. Thereafter, a regular inquiry was held and Inquiry Officer submitted the inquiry report on 3.4.92 holding that all the charges framed against the applicant as proved beyond doubt. The Disciplinary Authority taking into account the representation of the applicant on the inquiry report imposed on the applicant the penalty of reduction of the pay of the applicant by one increment from Rs. 1440/- to Rs. 1410/-, vide order dated 30.12.92, in the time scale of pay of Rs. 1200-2040/- for a period of two years with effect from 1.1.93 with the further direction that the applicant will earn increment of pay during the period of reduction and that on the expiry of this period, the reduction will not have the effect of postponing the future increment of pay. The applicant submitted an appeal to the Appellate Authority dated 16.10.93 (sic) authority as also an additional appeal dated 18.2.93. The Appellate Authority, vide order dated 31.1.94 set aside the penalty imposed on the applicant on the ground that the inquiry had not been conducted in accordance with the procedure prescribed under Rules 14 & 15 of CCS (CCA) Rules, 1965 and ordered for de novo inquiry. The applicant challenged the appellate order dated 31.1.94 ordering de novo inquiry before this Tribunal in O.A. 785/1996 and this Tribunal in its order dated 1.7.96 gave liberty to the applicant to file his written statement to the inquiring authority and thereafter the inquiring authority was to dispose of the inquiry within 90 days positively. In pursuance of the orders of this Tribunal the respondents issue a memorandum dated 12/23.7.1996 proposing to hold a de novo inquiry against the applicant as per the orders of the Appellate Authority along with the articles of charge etc. The issue of above memorandum dated 12/23.7.96 by the respondents was challenged by the applicant before this Tribunal in O.A. No. 860/1996 and this Tribunal in its order dated 7.11.96 held that there were no need to frame fresh charges as no such direction had been given by this Tribunal and directed the applicant to file his written statement and thereafter the inquiry was to be completed positively within 6 months. The applicant challenged the disciplinary proceedings in W.P. No. 22160/1998 which was dismissed by the High Court of Karnataka on 5.8.1998. Thereafter, the applicant submitted once again his written statement of defence dated 8.10.99. The Inquiry Officer submitted his report dated 31.8.2000 holding the charges against the applicant as proved. The applicant submitted a detailed reply to the President, CSIR with reference to inquiry report on 16.9.2000. The Disciplinary Authority upheld the findings of the Inquiry Officer and imposed on the applicant vide order dated 21.9.2000 the penalty of reduction of pay to the lower stage of Rs. 5100/- from Rs. 5200/- in the pay scale of Rs. 4000-6000/- for a period of two years with effect from 1.10.2000 with the further direction that the applicant will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will not have the effect of postponing his future increments of pay, Thereafter, the applicant had submitted an appeal dated 31.10.2000 to the Appellate Authority against the orders passed by the Disciplinary Authority. The Appellate Authority vide order dated 14.3.2001 modified the punishment order reducing the period of penalty from two years to one year. Aggrieved the applicant has filed this application seeking the quashing of the orders of the Disciplinary Authority dated 21.9.2000 and the orders of the Appellate Authority dated 14.3.2001 with the further direction to restore the pay of the applicant in the original scale and grant all consequential benefits.
2. The first contention of the applicant is that the disciplinary proceedings were instituted against him on the basis of a complaint lodged by respondent No. 4 but no disciplinary action has been taken against respondent No. 4 even though the applicant had also lodged a complaint against respondent No. 4 on 4.1.1988. Accordingly, the action of the respondents is violative of Government of India instructions and proves bias and prejudice against the applicant and favouritism towards the 4th respondent. This is alleged on account of the fact that respondent No. 4 is a Scientist and had direct access to the Director/Disciplinary Authority and accordingly, the Director/Disciplinary Authority have failed to be independent and impartial in discharging their duties and are prejudiced against the applicant.
3. The second contention of the applicant is that the respondents have conducted the disciplinary proceedings without any jurisdiction as the alleged incident had taken place after duty hours and outside the office premises and hence it cannot be brought under the term 'misconduct'.
4. The third contention of the applicant is that the prosecution witnesses had clearly deposed that they had not seen the physical assault on the 4th respondent but without considering this aspect the Inquiry Officer has concluded that the charges are proved and hence the findings of the Inquiry Officer are based on no evidence.
5. The 4th contention of the applicant is that the respondents have depended on the letter dated 7.1.88 submitted by the applicant which was not listed as a document in the charge sheet dated 18.4.88 and the Inquiry Officer also used this letter while giving his findings in the inquiry.
6. The next contention of the applicant is that the orders passed by the Disciplinary Authority dated 21.9.2000 and the Appellate Authority's order dated 14.3.2001 are non-speaking orders and hence are violative of the instructions dated 13.7.81 and 5.11.85 under Rule 15 of CCS (CCA) Rules which specifically states that the orders issued must be reasoned and speaking orders.
7. Yet another contention of the applicant is that the Disciplinary Authority appointed the Inquiry Officer and the presenting officer simultaneously on 18.4.88 without waiting for the reply of the applicant which is against Rule 14(5)(a) of CCS (CCA) Rules, 1965.
8. Finally, it has been contended by the applicant that the applicant and the 4th respondent had signed a compromise treaty on 31.1.96 and despite this the respondents have taken disciplinary action against the applicant and imposed the punishment which establishes the bias and prejudice against the applicant.
9. The respondents have filed their reply contesting the claim of the applicant. Regarding the first contention of the applicant that no action had been taken against respondent No. 4 against whom the applicant had submitted a complaint, the respondents have stated that a memorandum dated 1.1.88 had been issued to the applicant to explain why disciplinary action should not be initiated against him on the basis of the complaint lodged by respondent No. 4. They have accordingly stated that the complaint dated 4.1.1988 lodged by the applicant is an afterthought to the show cause notice dated 1.1.1988 which had already been issued to him. The respondents have also contended that the averment of the applicant that the alleged incidence was of a private nature and was only an exchange of words and had occurred outside duty hours as untenable and held that it was clear that the applicant had been involved in gross misconduct so as to create a nuisance with the official who was duty bound. The respondents have also argued that an employee is expected maintain good conduct in private life too and therefore the act on the part of the applicant tantamounts to preventing an official discharging his duties which is a very serious misconduct. As regards the contention of the applicant that it is a case of no evidence, the respondents have referred to the evidence given by respondent No. 4 who was the complainant and the evidence rendered by one of the prosecution witness, Shri Vijay Vittala which Confirmed the physical assault by the applicant on the 4th respondent. The respondents have also denied that the findings of the Inquiry Officer is based on the letter dated 7.1.88 and have stated that the findings of the Inquiry Officer are based on relevant documentary and oral evidence adduced before him during inquiry. The respondent have also stated that the orders passed by the Disciplinary Authority and Appellate Authority are reasoned and speaking orders and have denied that the Disciplinary Authority had any bias against the applicant. The respondents have also denied that any compromise agreement was arrived at on 31.1.96.
10. Heard both Counsel and perused documents on record.
11. The grievance of the applicant is that even though the applicant had lodged the complaint against respondent No. 4, no disciplinary action has been taken against respondent No. 4 and it is alleged that this is on account of the fact that respondent No. 4 is a Scientist and hence has direct access with the Disciplinary Authority and the Director and accordingly, the Disciplinary Authority and the Director have failed to be impartial and are prejudiced against the applicant. It is also further alleged that the action of the respondents in not taking note of the complaint lodged by the applicant against respondent No. 4 is violative of the Government of India instructions dated 13.6.1963 on the subject. It has also been contended by the Counsel for the applicant that the action of the Disciplinary Authority and the Director are violative of the Government of India instructions dated 23.4.1955. We have gone through the above mentioned instructions. The instructions dated 13.6.63 only state that when two employees working in the same office make complaints against each other, the Disciplinary Authority should not hold a joint enquiry. Nowhere is it stated that when complaints are made against each other action should be taken against both the employees. The instructions dated 23.4.1955 have referred to the observations of the Planning Commission which stated "in the social relations and dealings those holding responsible post should ensure that there are no ground or occasion to suggest that some individuals have greater access or influence with them than others" and directed that these observations should be brought to the notice of all concerned. In this application it is the contention of the applicant that the Disciplinary Authority and the Director were biased against the applicant and favoured respondent No. 4 as he was a Scientist and it is for this reason that no action has been taken by the respondents on the complaint lodged by the applicant against respondent No. 4. This has been strongly denied by the Counsel for the respondents, On going through the records, it is seen that an incident had taken place on 27.12.87 and subsequently, on 28.12.87 there had been another incident that took place between the applicant and respondent No. 4 and the charge sheet against the applicant has been issued in respect of the incident which took place on 28.12.87. The complaint lodged by the applicant is with reference to the incident that took place on 27.12.87. This has been lodged after a memorandum has been issued to the applicant on 1.1.1988 by the respondents against the incident which took place on 28.12.1987. Had the applicant been really upset over the incident which took place on 28.12.87 it was open to the applicant to have lodged the complaint on 28.12.87 but instead of doing so he had taken the matter into his own hands resulting in the incident with respondent No. 4 on 28.12.87. In this view of the matter it has to be held that the complaint lodged by the applicant against respondent No. 4 is an afterthought on receiving the memorandum dated 1.1.88. It therefore appears that the respondents have not acted on the complaint lodged by the applicant against respondent No. 4 keeping these facts in mind. In the above facts and circumstances, it cannot be held that the Disciplinary Authority and the Director were biased against the applicant and that action should have been taken against R-4 also.
12. The major contention of the applicant is that the respondents have conducted the disciplinary proceedings without any jurisdiction as the alleged incident had taken place outside office premises and outside duty hours and hence it does not come under the term 'misconduct' and in this context the applicant has referred to the judgment in the case of Krishnan Kutty v. Senior Superintendent of Post Offices, 1975 KLT 503. In this case it had been held that a misconduct which is not in the course of employment cannot be a misconduct. Similarly, a conduct which is not misconduct as per the Conduct Rules also cannot be the subject matter of disciplinary action against a Government servant. Further, if the incident occurs at a place far away from the place of employment, that cannot in any way be made the subject matter of disciplinary action. The Counsel for the applicant also referred to the judgment of the Bombay High Court in the ease of P.V. Pujari and Ors. v. Municipal Corporation of Greater Bombay and Anr., 1995 Lab. I.C. 157. In this case, the Bombay High Court had held that each and every misconduct committed anywhere irrespective of where and when it is committed cannot amount to misconduct because it has some remote impact on peaceful atmosphere in establishment. Another case law cited was the judgment of the Supreme Court in the case of Glaxo Laboratory v. Presiding Officer, Labour Court, Meerut, AIR 1984 SC 505=1984(1) SLJ 229 (SC). In this case, the Supreme Court had held that misconduct must have a connection with place of work and with duty hours and that the employer has no extra territorial jurisdiction under a Standing Order to punish for misconduct.
13. The Counsel for the applicant also referred to the orders passed by the Karnataka High Court in the case of Ashish Suman and Ors. v. National Law School of India University, AIR 2003 Kar. 136. In this case, the Karnataka High Court had pointed out that the incident in question had not happened within the University campus and the alleged assault was not between the students of the University and the alleged assault had taken place outside the University and the person who had been assaulted had nothing to do with the University. The High Court had gone on to state that any action taken by the University with the intention of maintaining high standards and discipline, cannot be the subject matter of judicial review but at the same time it cannot be said that by exercising judicial restraint the Courts have to close their eyes from interfering with the actions of such autonomous authorities when it is demonstrated that a palpable injustice is done under the guise of maintaining discipline, The Counsel for the respondents on the other hand vehemently argued that the act committed by the applicant and for which he had been punished did amount to misconduct and in this context referred to the orders passed on 5.7.95 by the Chandigarh Bench of this Tribunal in O.A. 1172/1994 [202 Swamy's C.L. Digest 1995/1]. In these orders, the Chandigarh Bench had stated that any conduct of the public servant which is unbecoming of such Government servant which shows lack of integrity in performance of some duties entrusted to him by his employer can and would definitely fall within the meaning of misconduct by a public servant. In this context, they have stated that a public servant found in drunken condition would be a case of conduct unbecoming of a public servant though done outside his normal duties. Another case law referred to by the Counsel for the respondents was the judgment of the Supreme Court in Palghat BPL and PSP Prahalali Union v. BPL India Limited and Anr., 1995(6) SCC 237. In this judgment, the Supreme Court had held that attack on an officer of the management although committed outside the premises held amounted to misconduct within Clause 39 (h) of the standing orders of BPL India Limited. It was also argued by the Counsel for the respondents that though the term misconduct has not been defined nor can it be catalogued Government servants are required to maintain good conduct at all times and not just during office hours and in this context referred to the judgment of High Court of Madras in the case of Thirumangalam Cooperative Urban Bank v. Assistant Commissioner of Labour, 1992(6) SLR 146. The instruction No. 23 under Rule 3 of the Conduct Rules lists the acts and conducts which amount to misconduct and instruction 24 thereof states that Rule 3(1) of the CCS (Conduct) Rules, 1964 serves the specific purpose of covering acts of misconduct not covered by other specific provisions of the rules. In this case it is seen that disciplinary action was initiated against the applicant in terms of Rule 3(1) of CCS (Conduct) Rules, 1964. In so far as the case of Thirumangalam Cooperative Urban Bank v. Assistant Commissioner of Labour, it is seen that in that particular case, the misbehaviour was by a night watchman and had taken place within the premises of the Bank. As such this decision is not applicable and cannot support the case of the respondents. In the case of Palghat BPL and PSP Prahalali Union v. BPL India Limited and Anr., no doubt, it is true that the Supreme Court had held that attacks on the officers though committed outside the premises, held amounted to misconduct but it had also pointed out that any act unrelatable to the service committed outside the factory would not amount to misconduct. The judgment of the Chandigarh Bench of this Tribunal in O.A. 1172/1994 also do not come to the aid of the respondents as it refers to lack of integrity in performance of some duties and of a public servant found in drunken condition outside his normal duties. On the other hand, the reliance placed by the Counsel for the applicant on the judgment of the Karnataka High Court in the case of Ashish Suman v. National Law School of India University (supra) is also misplaced as the facts therein are entirely different and the alleged assault in that case was on a person who had nothing to do with University. In the case of the applicant, the alleged assault and use of abusive language is against a fellow employee of the same organisation. It is no doubt true that each and every misconduct committed anywhere irrespective of where and when it is committed cannot amount to misconduct merely because it has some remote impact on peaceful atmosphere in establishment. In the case of P.V. Pujari and Ors. v. Greater Bombay (supra), the Bombay High Court had stated as under:
"the alleged assault did not take place in the premises of the Corporation. At the time of the incident, the concerned workmen were neither on duty nor in union nor were they bearing any badges. The assaulted workman was also not on duty. There were no nexus between the alleged act of misconduct and the employment. It was an isolated incident and during the period of 15 months, there was not even a complaint in regard to the conduct or behaviour of this workman vis-a-vis other workmen. In the circumstances, the alleged assault did not amount to misconduct within the meaning of standing orders 20(i) and 20(r) for the purpose of taking disciplinary action."
The applicant has relied on this judgment to argue that the respondent had no jurisdiction to initiate disciplinary proceedings against the applicant as the alleged incident had taken place outside the office premises and outside office hours and hence while not on duty. While this is true, it may be pertinent to point out that in the Bombay High Court judgment, the Court had held that the incident also did not amount to misconduct because no complaint had been lodged by the workmen who had been assaulted. In the case of the applicant this is not so. Respondent No. 4 who has alleged assault on him by the applicant had lodged a complaint against the applicant. Further, it is seen that in the case laws referred to, the matter whether the incident which occurred amounted to misconduct had been examined by Courts with reference to the standing orders as were applicable to those establishments. It is also seen that both in the case of P.V. Pujari and Ors. v. Municipal Corporation, Greater Bombay and Palghat BPL and PSP Prahalali Union v. BPL India Limited and Anr., the concerned institutions were industrial establishments whereas it is not so in the case of the applicant. We are in full agreement with the various judgments cited that all and every act committed outside the premises and outside duty hours cannot amount to misconduct. However, we are of the view that each case will have to be decided with reference to the facts, the situation in which the act was alleged to have been committed and the attending circumstances leading thereto. It this criteria is applied in the case of the applicant, it is seen that an incident had taken place on 27.12.1988 in the NAL bus and according to the complaint lodged by the applicant on 4.1.89, after he and his family got into the bus he had requested respondent No. 4 to give him a drop nearby at the regular pick up point, but respondent No. 4 had not only not obliged but had said in a rough tone "you are not a member of the officers club and you are not concerned with this. So get down." Subsequently, on the morning of 28.12.1988, according to the charge memo, the applicant used abusive language and assaulted respondent No. 4 near the NAL bus stop of Route 13 at Banashankari III Stage of Bangalore. The alleged incident on 28.12.88 is accordingly not an isolated incident and has to be read in the context of what transpired in the NAL bus on the night of 27.12.88. It is no doubt true that the alleged assault and use of abusive language on the morning of 28.12.88 was outside the premises (in fact 15 KMs away from office) and outside duty hours. However, this fact by itself cannot be a ground to argue that it is not a case of misconduct. The incident of the alleged assault and use of abusive language has to be viewed in the context of what transpired the previous night in the NAL bus which was not a private transport but a transport belonging to NAL and which incident had taken place in the presence of other employees of NAL. If the applicant was aggrieved with the action of respondent No. 4, against the applicant in the NAL bus on the night of 27.12.88, the proper course would have been for him to file a complaint immediately with the respondents. However, it is seen that no such complaint was lodged immediately. On the contrary, the applicant is alleged to have assaulted and abused respondent No. 4 on the morning of 28.12.88. In the facts and circumstances, we are of the view that the act of the applicant amounts to misconduct in terms of Rule 3 (1) of CCS (Conduct) Rules, 1964 and our view is further strengthened by the fact that after a show cause notice was issued to the applicant on 1.1.89, the applicant chose to make a complaint against respondent No. 4 on 4.1.89. In the circumstances, the respondents had the necessary jurisdiction and where within their competence in initiating disciplinary proceedings against the applicant.
14. The next contention of the Counsel for the applicant is that it is a case of no evidence as prosecution witnesses had clearly that they had not seen the physical assault on the 4th respondent. This has been contested by the respondents who have pointed out that the assault had been established not only on the basis of the evidence of respondent No. 4 who is also the complainant and who has also been cross examined by the applicant but also by one Shri Vijay Vittala who had confirmed the physical assault on the 4th respondent who had also been cross examined by the applicant. Counsel for the applicant on the other hand, contended that one of the prosecution witnesses Shri K. Govindaraj had stated that no assault had taken place during his examination as a witness but no credence has been given to this by the Inquiry Officer. In this context, this Tribunal would like to emphasise that it will be beyond the jurisdiction of this Tribunal to re-appreciate the evidence. However, from the records of the disciplinary proceedings it is clear that it is not a case of no evidence. Further, it is seen that the charge against the applicant was not only one of assault but also of using abusive language. From the records, it is seen that the witnesses examined have all testified that there was an exchange of words between the applicant and the respondent No. 4. In this view of the matter, the contention of the applicant that it is a case of no evidence is not tenable. In this context, the following case laws are relevant.
(1) R.S. Saini v. State of Punjab and Ors., 1999(8) SCC 90. In this case the Supreme Court held that if there is some evidence to reasonably support the findings of the inquiring authority, the Court in its exercise of its writ jurisdiction would not reverse the finding on the ground of insufficiency of evidence.
(2) Dr. Anil Kapur v. Union of India and Anr., 1998(9) SCC 47. In this case, the Supreme Court had held that although taking of another view was possible, interference with the order passed in departmental enquiry was not called for.
(3) Director General of Police and Ors. v. Jani Basha, 1998(9) SCC 490. In this case, the Supreme Court held that the scope of judicial review does not extend to re-appreciating of evidence and substituting its own finding by the Tribunal for that of the Disciplinary Authority;
(4) Secretary to Government, Home Department and Ors. v. Shri Vaikuntathan, 1998(9) SCC 553. In this case the Supreme Court had held that unless the findings of the Inquiry Officer are perverse or based on no evidence, the same could not be set aside by the Tribunal merely for its dissatisfaction of the evidence which was led and the Tribunal would neither sit in appeal over the findings of the Inquiry Officer nor can it examine the nature of the evidence which was led. The Counsel for the applicant has relied for support of his case on the orders by the Hyderabad Bench of this Tribunal on 27.4.98 in O.A. 251/1996 [AISLJ 355], Union of India v. B.K. Dutta, 1974 Lab IC 99=1974 SLJ (SN 26) (Raj. HC), Order dated 9.1.95 in O.A. 1493/1994 by the Principal Bench of this Tribunal [1999(2) SLJ 29]. We have gone through these judgments and find them to be not relevant in the facts and circumstances of this case.
15. The next contention of the applicant is that the respondents as well as Inquiry Officer have depended on the letter dated 7.1.88 submitted by the applicant even though it is not listed as one of the documents along with the charge memo issued to the applicant on 18.4.88. It is no doubt true that the letter dated 7.1.88 was not listed as one of the documents in the charge memo dated 18.4.88. It is seen that this letter was introduced during the course of inquiry and was taken on record by the Inquiry Officer. From the records of the inquiry it is seen that the Defence Assistant had protested against the taking on record of the letter dated 7.1.88. However, on going through the report of the Inquiry Officer, it is seen that though cognizance of the letter dated 7.1.88 had been taken, the Inquiry Officer has not relied on this letter for the conclusions and findings to hold that the charge against the applicant is proved. The findings of the Inquiry Officer are based on the other documents and the statements of the witnesses given in the disciplinary proceedings. In this view of the matter, the mere fact that letter dated 7.1.88 was taken on record cannot be held to have vitiated the disciplinary proceedings.
16. The further contention of the applicant is that the Disciplinary Authority appointed the Inquiry Officer and the Presenting Officer simultaneously on 18.4.88 on which date the charge memo was issued to the applicant and this was done without waiting for the reply of the applicant to the charge memo. As per rules, the Inquiry Officer and Presenting Officer are required to be appointed after getting the reply to the charge memo. However, this is purely a procedural matter and the applicant has not been able to explain how any prejudice has been caused to him consequent to the respondent not having followed this procedure. Accordingly, this contention has no merit.
17. The further contention of the applicant is that the orders passed by the Disciplinary Authority dated 21.9.2000 and the Appellate Authority's order dated 14.3.2001 are non-speaking orders. This has been denied by the respondents. It is seen from the documents produced that the copy of the inquiry report was forwarded to the applicant with O.M. dated 4.9.2000 with a direction to submit a brief, if any, on the report within 15 days from the date of its receipt. However, the applicant did not submit any brief to the Disciplinary Authority as directed in the said O.M. On the contrary, the applicant submitted his reply dated 16.9.2000 to the President, CSIR. The Disciplinary Authority in the absence of the brief from the applicant considered the Inquiry Officer's report and the record of the disciplinary proceedings and thereafter passed the penalty order. Accordingly, it cannot be held that the order of the Disciplinary Authority is not a speaking order. As regards the orders passed by the Appellate Authority, it is seen that the applicant had submitted a detailed appeal by letter dated 31.10.2000. On going through the orders passed by the Appellate Authority dated 14.3.2001, it is seen that the Appellate Authority has clearly stated that he has carefully gone through the appeal and also stated that the applicant has raised various issues, most of which were strictly not relevant to the case and that he has carefully considered all the issues raised by the applicant. It clearly shows that the Appellate Authority had applied his mind and only thereafter has the Appellate Authority reduced the penalty imposed on the applicant by the Disciplinary Authority. Hence the contention that the orders passed by the Appellate Authority is not a speaking order is also not tenable.
18. The final contention of the applicant is that no disciplinary action was called for against the applicant as the applicant and the 4th respondent had signed a compromise treaty on 31.1.96. This has been vehemently denied by the respondents and no documents are forthcoming to establish this statement of the applicant.
19. For the above reasons, we do not find any merit in the application and accordingly the application is dismissed. No costs.