Central Administrative Tribunal - Delhi
Iqbal Nath Sharma S/O Shri Keshav Ram ... vs Union Of India (Uoi) Through The Cabinet ... on 24 January, 2008
ORDER Shanker Raju, Member (J)
1. Applicant, an erstwhile S.F.A. (MT), by virtue of this OA has impugned respondents' order dated 17.11.2006, whereby pursuant to disciplinary proceedings a penalty of removal from service has been inflicted. Also assailed is an order passed in appeal on 12.3.2007, upholding the punishment.
2. On the allegation of failure to maintain absolute integrity by submitting forged acknowledgement receipts showing false receipt of his medical bills for medical reimbursement, applicant was proceeded against for a major penalty. An enquiry was conducted vide memorandum dated 19.4.2004 but on submission of the enquiry report on 3.7.2004, holding applicant guilty the disciplinary authority (DA) vide its order dated 30.6.2005 ordered a de novo enquiry by appointing a new enquiry officer (EO) as the enquiry was not conducted in accordance with the procedure laid down under Rule 14 of the CCS (CCA) Rules, 1965. As a result thereof a memorandum was issued to applicant. The EO in its report dated 12.6.2006 though substantiated the charges but observed that the charged officer was in a peculiar state of mind, incapable of making distinction between the right and wrong. On reply to the enquiry report the DA imposed the penalty of removal from service.
3. An appeal preferred against the order of punishment though taken the grounds of de novo enquiry and proportionality of punishment, yet the appellate authority without dwelling in right perspective the grounds, upheld the punishment.
4. Applicant joined the Indian Army as a Sepoy in 1969 but on completion of 17 years' of service on retirement on 31.7.1986 on re-employment joined the Cabinet Secretariat on 23.8.1986. As such the erstwhile service when counted, applicant had completed 17 years' of service and the service rendered of 20 years makes the total qualifying service of applicant as 37 years. It is also not disputed that applicant had no history of punishment in his record for any misconduct, imputing adversely on his integrity or devotion to duty.
5. Learned Counsel of applicant, at the outset, challenges the punishment, inter alia, on several grounds, including that the original medical bills when not produced and were not traceable, any finding as to their not being genuine cannot be arrived at. It is also stated that de novo enquiry is against Rule 15 of the CCS (CCA) Rules, 1965 and lastly the punishment imposed, keeping in light his longer service and right to pension is harsh and excessive.
6. On the other hand, learned Counsel of respondents vehemently opposed the contentions and stated that the laid down procedure has been followed in conduct of the disciplinary proceedings and the punishment imposed is commensurate with the misconduct.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. Rule 15 (1) of the CCS (CCA) Rules, 1965 empowers the DA, for reasons to be recorded in writing, to remit back the case to the appellate authority for further enquiry but nowhere de novo enquiry is permissible from the stage of issuing a fresh chargesheet under the Rules. We are fortified in our conclusion by the decision of the Apex Court in Bhupinder Pal Singh v. Director General, Civil Aviation 2003 SCC (L&S) 372 and also Union of India v. K.D. Pandey , when the act of the DA to initiate enquiry afresh from the stage of memorandum of charges is without any jurisdiction. However, this aspect of the matter when raised before the appellate authority as a specific plea by applicant in his appeal, the appellate authority holding that EO has conducted the enquiry as per the procedure after the competent authority ordered for de novo enquiry, there is non-application of mind to the contentions raised by applicant.
9. Moreover, keeping in light the fact that applicant though submitted medical reimbursement bills, but the medical record not being traceable, has been observed to be not genuine, coupled with the fact that the EO has clearly ruled that applicant was in such a state of mind which incapacitated him to decide between right and wrong, keeping in light the longer service of more than 35 years of applicant and his previously clean record, proportionality of punishment, which is to be gone into by the appellate authority, merely because the penalty imposed is right, balancing process has not been conducted as per the decision of the Apex Court in B.C. Chaturvedi v. Union of India JT 1995 (8) SC 65, though we cannot substitute the punishment or substitute our own view in the matter of punishment, but once there is non-consideration of the contentions of applicant in right perspective and his antecedents, the aforesaid consideration would be lacking in law.
10. In the result, for the foregoing reasons, OA is partly allowed. Appellate order is set aside. Matter is remitted back to the appellate authority to pass a fresh order, dealing with the above two points raised by applicant, by passing a speaking order within a period of three months from the date of receipt of a copy of this order. No costs.