Central Administrative Tribunal - Delhi
Sh. Vidya Bhushan vs Union Of India Through on 26 May, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
TA-1397/2009
New Delhi this the 26th day of May, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Vidya Bhushan,
R/o C-14, Guru Nanakpura,
Patparganj Road,
Delhi-92. . Applicant
(through Sh. Ajesh Luthra, Advocate)
Versus
1. Union of India through
Its Secretary,
Ministry of Health & Family Welfare,
Department of Health,
Nirman Bhawan,
Maulana Azad Road,
New Delhi-1.
2. The Medical Council of India,
Aiwan-E-Galib Marg,
Kotla Road,
Opp: Mata Sundari College,
New Delhi-2. . Respondents
(through Sh. Ritesh Routry, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 19.04.2002 of respondent No.2 by which he was dismissed from the service of the respondent organization, namely, Medical Council of India (MCI) with a prayer to set aside the impugned order and pass such orders as may be deemed just and equitable in the facts and circumstances of the case.
2. Facts leadings to the present Transfer Application are stated below:-
2.1 The applicant was working as a Gestetner Operator when he was placed under suspension 23.03.2001 on allegations of misconduct. A memorandum of charges was issued on 20.04.2001 containing three articles of charges; (i) he left the office on 20.03.2001 without permission;(ii) he used insulting and abusive language against his superior, even threatened him with dire consequences such as to chop off his hands; (iii) he did not give any reply to the memo dated 23.03.2001 issued to him advising him to take leave of absence for 20.03.2001. On denial of charges a Board of Inquiry was set up consisting of two Members: (a) an independent advocate and (b) a senior officer of MCI. The Inquiry Board held him guilty of all the charges. The Disciplinary Authority (DA) issued a Memorandum on 08.03.2002 stating that he concurred with the findings of the Board and asked him to show cause why the proposed punishment of dismissal should not be imposed upon him. Along with the Memorandum, a copy of the inquiry report was given to him. He gave his representation against the findings of the inquiry report on 28.03.2002. However, the DA, after considering his representation, came to hold that no new plea had been brought out in his representation other than what he had taken at the time of inquiry and further that the applicant had failed to show any mitigating circumstances. Accordingly, he imposed the penalty of dismissal from service. The applicant filed a Review Petition on 06.05.2002 and subsequently requested on 07.06.2002 to treat his Review Petition as an appeal. Besides, he filed Writ Petition No.210/2003 challenging the validity of his dismissal from service. During the pendency of the Writ Petition his appeal was dismissed and this fact was brought to the notice of the Honble High Court by the respondents through their counter-affidavit. The applicant was given the liberty to challenge the order dated 26.08.2002 of the Appellate Authority. The Writ Petition has now come under transfer and numbered as TA-1397/2009.
3. At the time of hearing, the learned counsel for the applicant made the following submissions:-
The dismissal order has been issued by the Secretary of MCI, who is not the appointing authority. As such, the impugned order of dismissal suffers from the infirmity of having been passed by an incompetent authority.
The Memorandum dated 08.03.2002 asking the applicant to show cause against the proposed punishment of dismissal was issued even before a copy of the inquiry report was supplied to the applicant. This Memo indicates that the DA had made up his mind about the findings before considering the representations of applicant. Further, there was no need for him to indicate the nature of punishment which was being contemplated, but by doing so he had revealed the predisposition of his mind on the issue. Such a course of action, it is contended, was against all cannons of natural justice.
The Chairman of the Board of Inquiry was a practicing advocate. He could not be appointed as an authority in a disciplinary proceeding. Rule 14(2) of CCS(CCA) Rules speaks about the inquiry being conducted by the DA or by an authority appointed in that behalf by the DA. The Authority does not include any person, it has to be some senior officer of the organization. It is not the case of the respondents that there was no senior officer capable of conducting an inquiry like this. In these circumstances, he contends, the appointment of an outsider has introduced serious infirmity to the inquiry.
The first charge says that the applicant tendered an application in the morning seeking permission to attend a court case involving MCI EmployeesUnion Vs. MCI, which was to come up on that date before the Honble High Court. He left the office without obtaining permission. Attending a court case was a legitimate cause which required the presence of the applicant who was an office bearer of the Union at the time of hearing of that case. There was no misconduct involved in his leaving the office.
The second charge relates to an incident when the applicant and the Section Officer (Estt.) were involved in some verbal exchanges. There is no evidence on record except for the complaint made by the Section Officer that the applicant had, in fact, threatened him with his life or told him that his hand would be chopped off. Besides, he had questioned the wisdom of relying on the complaint of an officer who was always inimical to the applicant. In his appeal petition he had mentioned that the complainant was a habitual drunkard and he was drunk on the date of the alleged incident. No reliance could be placed on the complaint of such a person. No other witness has corroborated his complaint.
(vi) Learned counsel placed reliance on the ruling of the Honble Supreme Court in the case Ram Kishan Vs. U.O.I.and Others, 1995(6)SCC 157 in which it was held that unless the specific abuses which were uttered were brought on record it would not be justified to pass a major penalty on the allegation of general abuses. Paragraph-11 and 12 of it read as under:-
II. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of the abusive language. No strait jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated.
12. On the facts and circumstances of the case, we are of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge imputed to the delinquent constable. Accordingly, we set aside the dismissal order. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So, we direct the disciplinary authority to impose that punishment. However, since the appellant himself is responsible for the initiation of the proceedings, we find that he is not entitled to back wages; but, all other consequential benefits would be available to him.
(vii) The third article of charge does not indicate any act of misconduct. He was asked to submit a leave application for his temporary absence from duty on 23.03.2001. The applicant was under the impression that no such leave application was necessary as he had left the office for a legitimate work. In any case, the authorities could have marked him absent for the short period of time that he was absent. But it does not show any deliberate act of insubordination on the part of the applicant.
(Viii)The appeal which was filed by the applicant has been disposed of by a cryptic order. It has not considered the specific grounds taken by the applicant in his review/appeal petition in assailing the order of DA. Such an order is not sustainable in the eyes of law.
(ix) The order of dismissal is a harsh penalty which cannot be justified on the basis of the charges which were brought against the applicant. Temporary absence from duty for some part of a day and exchange of words with a Section Officer would not justify imposition of such a severe penalty particularly in the context of the fact that the applicant was an office bearer of the union and had filed a Writ Petition against the management before the Honble High Court. The action of the respondent authority smacks of vengefulness and a mala fide determination to teach him a lesson. Such an attitude is not expected of public authorities. Therefore, he submits that the Tribunal should come to the rescue of the applicant who has become the victim of highhandedness of the management.
4. Learned counsel for the respondents submits that the applicant is not as innocent as is being made out. On the other hand, he has the background of being reprimanded many times in the past. In a previous disciplinary proceeding, the penalty of reducing him to the lower post of Gestetner Operator at the initial stage of the pay scale was imposed on 01.07.1999. Even in spite of the penalty, he did not mend his ways. There was nothing arbitrary or unreasonable about asking him to submit leave application for the period of his absence from duty. Attending a court in respect of a case filed by a Union is not a legitimate duty of an employee. It is not his case that he was deputed by the management to attend the court.
4.1 Learned counsel for respondents drew our attention to the complaint letter of the Section Officer (Estt.) which is placed at page-192 (Annexure R-5). The Section Officer states that the applicant entered his room and abused him with filthy language challenging him why he wrote an office note suggesting deduction of half a days leave for his absence on 20.03.2001 and advising the applicant to apply in advance in future. He also mentioned about the threat of the applicant that he would break the hand by which the Section Officer had written that note. The section has stood by his allegations in the statement made by him in the departmental inquiry.
5. As regards appointment of an advocate as the IO, he submits that the matter is no longer res-integra. It is decided by the Honble Supreme Court in U.O.I. & Ors. Vs. Alok Kumar, 2010(5)SCC 349 that the word authority need not necessarily mean that only an officer of the department has to be appointed as the IO. In the present case the applicant was an office bearer of the union and would have alleged any senior officer of the management being biased against him. That is why a Board of Inquiry was set up, in which along with a senior officer of the department a senior advocate was appointed as the Chairman so that the inquiry could be conducted in an impartial manner. The applicant has not brought out how he was prejudiced in such appointment.
5.1 Applicants grievance that he was not permitted to be assisted by a trained lawyer as his defence assistant, it is argued, is also misplaced. Govt. instructions to provide such a facility to a delinquent officer are only in the context of the prosecuting officer being a trained lawyer. Admittedly the prosecuting officer in the inquiry proceedings was not a lawyer. Therefore, the allegation that the inquiry, for that reason, suffered from an infirmity is unjustified.
5.2. The plea of denial of reasonable opportunity by not giving the inquiry report before issue of a show cause notice, he submits, is also without much force. The fact remains that the inquiry report was supplied to him along with the show cause notice and he was enabled to make his representations both against the findings of the inquiry report as well as the show cause notice. This would go to prove that full opportunity was, in fact, given to the applicant to defend himself. No penalty order was issued without considering his representation. Neither had he made out that any substantial prejudice had been caused to him for this reason.
5.3 The inquiry report after discussing the evidence has come to a finding that all the charges are proved against the applicant. It has discussed the evidence coming against the applicant in great detail to prove the second article of charge. There were two employees, namely, Mrs. Maheshwari and Ms. Sneha Lata who were present when the employee entered the room of the Section Officer. They left the room as soon as the incident occurred. Ms. Sneha Lata stated during cross-examination that she heard the applicant using unparliamentary language. It has discarded the possibility of any other person being present in the corridor and hearing what happened inside the room basing on the evidence of PWs which disproves the defence story that there were others in the corridor. The learned counsel has cited the judgment of the Apex Court in the case of Alok Kumar Vs. U.O.I., 2010(5)SCC 345 which held that the delinquent employee had to show how de facto prejudice was caused to him before a court can interfere with the departmental inquiry.
6. At this stage we wanted to examine the departmental inquiry records to ascertain exactly what has come on record about the unparliamentary language employed by the applicant at the time of his counter with the Section Officer. On going through the records we do not find any thing more that what has been described in the inquiry report.
7. We have gone through the pleadings and given serious consideration to the rival submissions. It is a fact that the issue of appointment of a non-official is no longer res-integra. It has been decided by the Honble Supreme Court in Alok Kumar (supra). The word authority has not been defined under the rules. Therefore, it has to be understood in its generic sense. Power to conduct an inquiry can be conferred on a person who may not be in government service. Besides, it was not necessary for the respondents to permit the request of the applicant for the assistance of a trained lawyer when the prosecuting officer for the respondents was not a trained lawyer. The contention of violation of principles of natural justice by not supplying a copy of the inquiry report before issue of the show cause notice and by mentioning in the show cause notice tentatively the nature of punishment which the respondent authority wanted to inflict does not have much force. In view of the law laid down by the Apex Court in the case of Alok Kumar (supra) that it is for the delinquent employee to establish de facto how any prejudice was caused to him. There is no dispute that he was given an opportunity to defend himself and it is only after considering his representation that the impugned order was passed. The impugned order has been communicated by the Secretary of the respondent organization and it says very clearly that the appointing authority by order dated 10.04.2002 had decided to impose the punishment of dismissal from service on the applicant. Therefore, the contention that the order has been passed by an incompetent authority is without any basis. The contention of the applicant is that he left the office on 23.03.2001 to attend the hearing of a court case and it was a legitimate work on the part of an office bearer of a union and in that context his temporary absence could not have been construed as unauthorized absence giving rise to the allegation of misconduct. Suffice to say that work relating to the office union cannot be accepted as legitimate office work. Admittedly, he was not deputed to attend the court hearing on that date. Therefore, we do not find anything unusual on the part of the respondents in asking him to apply for leave for his temporary absence. When he refused to submit any leave application, the disciplinary action was taken against him and he was charged with misconduct.
8. The submission of the learned counsel for the applicant is that the penalty imposed on him was unduly harsh and disproportionate to the gravity of the misconduct alleged against the applicant. He has also characterized the appellate order as cryptic in nature. Relevant portion of the appellate order is extracted below:-
The Executive committee considered the appeal of Shri Vidya Bhushan kaushik requesting to review the order as per rule 50 of Standing Orders of the Medical Council of India. The Executive committee upon reconsideration noted that there is no substance in the appeal of Shri Vidya Bhushan which requires fresh consideration for reviewing the decision already arrived at and decided to reiterate its earlier decision of approving the penalty of Dismissal from Service imposed on him by the Disciplinary Authority which was duly approved by the General Body of the Council at its meeting held on 3rd & 4th June, 2002 and already communicated to him. 8.1 It simply says that there was no substance in the appeal which required a review of the decision of the DA and on that ground rejected his appeal. There is no doubt that this order does not discuss the contentions raised by the applicant in his appeal. The applicant had specifically taken the plea of the punishment being harsh and disproportionate in nature along with many other. It is for the respondent authority to take a view on the nature of punishment which is to be given to an employee while considering over all facts and circumstances of the case.
9. From the case record and the inquiry report it is made out that the applicant used filthy and unparliamentary language against the IO. However, except for the statement of the S.O. and his complaint letter where it is said that the applicant wanted to kill the S.O. break his hands, there is no other corroborative evidence. The applicant has made a number of allegations against the S.O. and described him as personally inimical towards the applicant. It would be proper for the respondent authorities to take all the facts and circumstances of the case into account and to decide whether the punishment given to the employee was proportionate to the allegations brought against him. In any case, they are required to give a reasoned order in respect of all the grounds taken by the applicant in his appeal, which they have not done. In the circumstances, the matter is remitted to the Appellate Authority to take a fresh view on the appeal/review petition of the applicant.
9. The T.A. is allowed in terms of the aforesaid direction. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) /vv/