Central Administrative Tribunal - Delhi
Dr. V.T. Prabhakaran vs The Union Of India on 10 November, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1055/2009 New Delhi, this the 10 day of November, 2009 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Dr. V.T. Prabhakaran, S/o Late Shri T.S. Menon, (Ex-Principal Scientist, IASRI), 346, DDA (SFS) Flats, Pocket 2, Sector 19, Dwarka, New Delhi-110075 Applicant (Appeared in person) Versus 1. The Union of India, Through the Secretary, Department of Agricultural Research & Education, Krishi Bhawan, New Delhi-110001 2. The Indian Council of Agricultural Research, Through its Secretary, Krishi Bhawan, New Delhi-110001 3. The President, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi-110001 4. The Director, Indian Agricultural Statistics Research Institute, Pusa, New Delhi-110012 5. Dr. Sain Dass, Project Director, Directorate of Maize Research, Pusa, New Delhi-110012 Respondents (Through Shri B.S. Mor with Shri Amit Singh and Shri Neeraj Mor, Advocates) ORDER
Mr. L.K.Joshi, Vice Chairman (A) The Applicant, who retired from service of the Indian Agricultural Statistics Research Institute (IASRI), the fourth Respondent, as Principal Scientist on 28.02.2009, is assailing the continuation of departmental proceedings instituted against him by the impugned memorandum dated 24.03.2009, whereby he has been directed to submit reply to the report of the enquiry officer following the departmental enquiry initiated under Rule 14 of the CCS (CCA) Rules, 1965 by memorandum dated 19.07.2005.
2. A Memorandum of Charge containing five articles of charge was issued to the Applicant on 16.12.2003. The Applicant approached this Tribunal through OA No.395/2004 against the Memorandum of Charge. The Tribunal by order dated 6.01.2005 quashed three charges and directed that the departmental enquiry could proceed in respect of the remaining charges. A fresh charge-sheet containing the two memorandum of charge was issued in July, 2005. The charges against the Applicant and the imputation of misconduct have been reproduced below:
STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST DR. V.T. PRABHAKARAN, PRINCIPAL SCIENTIST, IASRI, NEW DELHI ARTICLE OF CHARGE-I While working as Principal Scientist at IASRI, Dr. V.T.Prabhakaran has misused the internet system by displaying objectionable materials on the electronic board and E-Mail and made derogatory and disrespectful remarks against his superior officers by publishing undesirable material on Public Notice Board for IASRI internet system and tried to instigate other officer by the above act.
By his above act, Dr. V.T.Prabhakaran has exhibited a conduct unbecoming of an ICAR Officer and has thus contravened the provisions of Rule 3 (I) (ii) and (iii) of CCS (Conduct) Rules, 1964 as extended to the ICAR employees.
ARTICLE OF CHARGE-II While working as Principal Scientist at IASRI, Dr. V.T.Prabhakaran has been making false and baseless allegation against the Director and other officers of IASRI. He has also been making representations directly to the higher officers in the Council and bringing outside/political pressure in furtherance of his service matters.
By his above act, Dr. V.T.Prabhakaran has exhibited a conduct unbecoming of an ICAR Officer and has thus contravened the provisions of Rule 3 (I) (ii) and (iii) of CCS (Conduct) Rules, 1964 as extended to the ICAR employees.
STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR. V.T. PRABHAKARAN, PRINCIPAL SCIENTIST, IASRI, NEW DELHI ARTICLE OF CHARGE-I While working as Principal Scientist at IASRI, Dr. V.T.Prabhakaran misused the Public Notice Board for IASRI Internet System on Wednesday, the 29th November, 2000 in which he has published a Public Notice with the title AS YOU SOW SO YOU REAP IS AN ENTERNAL TRUTH. The text of the public notice is as under:
PARODA WAS SENT OUT FIRST AND PUT ON COMPULSORY WAIT. MEHTA WAS SHUNTED NEXT, WITHOUT MUCH FUSS. YOU MAY BE WONDERING, WHOSE TURN IS NEXT> ALTHOUGH IT IS NOT VERY CLEAR YET, I HAD A DREM YESTERDAY---- IN WHICH I SAW ANOTHER DADDY JI PACKING UP HE TOO WAS BOASTING, MY PAY IS ALSO PROTECTED. Reply via private email to DR. V.T.PRABHAKARAN [email protected] Dr. V.T.Prabhakaran also issued two more Public Notices on IASRI, Internet System on Thursday, the 30th November, 2000 as detailed below: (I) TITLE A LION MADE TO RUN BY HIS OWN KARMA!!! The text of the public notice is as under:-
OUT DADDY JI IS TRYING TO LEAVE THE COUNTRY.
TILL YESTERDAY HE WAS A LION TODAY HE; IS A WHAT?
WILL HE ABLE TO RUN AWAY LIKE THAT? Reply via private mail to DR. V.T.PRABHAKARAN [email protected] (II) TITLE: HOW PARODA TRICKED AND OBTAINED PADMA BHUSHAN?
The text of the Public Notice is as under:-
HOW PARODA GOT PADMA BHUSHAN FOR HIMSELF?!!! AND SOME OF HIS WELL WISHERS WHAT WAS THE TRICK?
HOW HE MISUSED THE OFFICE OF SECRETARY DARE?
TO KNOW THIS AND MORE.
READ TODAYS RASHTRIY SAHARA (HINDI DAILY) Reply via private email to Dr. V.T.PRABHAKARAN [email protected] By this act, the said Dr. V.T.Prabhakaran has published undesirable material and used derogatory and disrespectful remarks against the superior officers of Indian Council of Agricultural Research and tried to instigate others soliciting replies via private e-mail to him. This was not expected from a responsible officer of the Council.
By his above act, Dr. V.T.Prabhakaran has exhibited a conduct unbecoming of an ICAR Officer and has thus contravened the provisions of Rule 3 (I) (ii) and (iii) of CCS (Conduct) Rules, 1964 as extended to the ICAR employees.
ARTICLE OF CHARGE-II While working as Principal Scientist at IASRI, Dr. V.T.Prabhakaran has been making false and baseless allegations against the Director and other officers of IASRI directly to the President and to the officers of the ICAR. On receipt of the complaints the matter was investigated by the Council and the complaints were found to be false and baseless. Dr. V.T.Prabhakaran has also been found to be sending the complaints regarding service matters through some Honble Members of Parliament also which is not permissible as per Rules. Accordingly, a recordable warning was issued to him vide ICAR Letter No.11-6/92-Per.III dated 27th January, 2000 in which he was also advised to not to repeat such acts of indiscipline.
Despite issue of the warning as above, Dr. Prabhakaran has not refrained from writing direct letters to the various authorities and has sent representations dated 05.09.2002 addressed to DG, ICAR and dated 5/6.9.2002 addressed to Secretary, ICAR.
By his above act, Dr. V.T.Prabhakaran has exhibited a conduct unbecoming of an ICAR officer and has thus contravened the provisions of Rule 3 (I) (ii) and (iii) of CCS (Conduct) Rules, 1964 as extended to the ICAR employees.
3. While the disciplinary proceedings were pending, the Applicant retired on 28.02.2009. On 24.03.2009, the Applicant received the impugned memorandum by which the copy of the report of the enquiry officer was forwarded to the Applicant under Rules 15 of the CCS (CCA) Rules, inviting his representation against the report of the enquiry officer.
4. The main contention of the Applicant, who appeared in person is that the departmental proceedings could continue after the retirement of a civil servant and punishment could be given to him under Rule 9 of the CCS (Pension) Rules, 1972. It is the contention of the Applicant that the President can withhold pension or gratuity or both either in full or in part of the Charged Officer if the latter is found guilty of grave misconduct or negligence during the period of service. The relevant part of the aforesaid Rule reads thus:
9. Right of President to withhold or withdraw pension (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement. (emphasis supplied)
5. The Applicant would vehemently contend that the charges against him are regarding violation of Rule 3 (1)(ii) and (iii) of CCS (Conduct) Rules, which relate to lack of devotion to duty and conduct unbecoming of a government servant. There is no charge against him regarding lack of integrity or corruption or moral turpitude. It is further contended that it has nowhere been stated in the memorandum of charge that the charges against the Applicant constitute grave misconduct. He would further argue that the enquiry officer in his report has held the charges to be proved, yet it has not been held by the enquiry officer that the Applicant is guilty of any act of grave misconduct. The Applicant would further contend that the messages, which he posted on the internet to which such serious exception has been taken by the Respondents, were lifted from the news items already published in the national newspapers. Copies of such news items have been annexed at pages 36 to 41of the paper book. He would contend that whatever he posted on the internet was already public knowledge. It is strenuously urged that under these circumstances, the President could not inflict the punishment of withholding of pension or gratuity. Reliance has been placed on D.V. Kapoor Vs. Union of India and others, AIR 1990 SC 1923, Union of India and others Vs. Mr. T.P. Venugopal, judgement of the Honourable Delhi High Court in W.P. (c) No.12759-61/2006 decided on 6.11.2007 and Union of India and others Vs. B. Dev, AIR 1998 SC 2709.
6. The Respondents have, on the other hand, contested the cause of the Applicant by arguing that the OA is misconceived as the Respondents have afforded the Applicant an opportunity of making representation on the report of the enquiry officer before any action is taken against him. It is urged that the Applicant deliberately delayed the department proceedings by not cooperating. It is contended that the Applicant made derogatory and disrespectful remarks against his superior officers by publishing undesirable material on Public Notice Board for IASRI Internet System and also tried to instigate other officers by doing so. It is argued that such misconduct is of grave nature bordering on indiscipline. Just because the enquiry has been initiated under Rule 3 (1)(ii) and (iii) of CCS (Conduct) Rules, 1964, it cannot be said that the action of the Applicant would not come in the category of grave misconduct. It is also urged by the learned counsel for the Respondents that the OA is premature and the Tribunal may not interfere with the disciplinary enquiry at this stage.
7. We have heard the rival contentions and have gone through the record thoroughly. It is settled law that action under Rule 9 of CCS (Pension) Rules, 1972 can be taken only if the pensioner is found guilty of grave misconduct or gross negligence. A perusal of the Articles of Charge shows that it has not been stated in these Articles that the Applicant is guilty of grave misconduct. We have carefully compared what has been posted on the Public Notice Board with what has appeared in the clippings of the newspapers, copies of which have been annexed with the OA and we find that the Applicant has only repeated what has already appeared in the newspapers. A comparison would show the following:
The Applicant has posted the following message:
Paroda was sent out first and put on compulsory wait. Mehta was shunted next, without much fuss. You may be wondering, whose turn is next. Newspaper clipping of 17.11.2000 in Indian Express placed at page 37 reads thus:
Two days ago, the Ministry had in a preemptive move placed Secretary R.S. Paroda on compulsory wait in order to ensure a fair probe by the CBI In another clipping of The Hindu newspaper dated 24.02.200, it reported that:
The Central Bureau of Investigation has recommended departmental action against Dr. R.S. Paroda, Director General (DG) of the Indian Council for Agricultural Research (ICAR), in the matter of publication of Councils brochure titled `ICAR Now and Ahead. It is also reported in this newspaper that:
a complaint had also been registered in the matter of purchase of personal computers and its peripherals of about Rs. 20 crores for the National Agricultural Technology (NATP) Project on another World Bank loan in 1998-99. The CBI lodged a case of criminal conspiracy and corruption against Dr. S.L. Mehta, DDG, Education, Dr. Gajendra Singh, DDG, Engineering, Dr. A.P. Saxena, ADG, Human Resources Development..
ii) The other item, which has been posted on the Public Notice Board, reads thus:
Title A Lion made to turn by his own karma!!! Out Daddy Ji is trying to leave the country. Till yesterday he was a lion. Today he is..what?
Will he be able to run away like that.?
iii) The third item, which is posted is titled How Paroda Tricked and obtained Padma Bhushan. This is lifted from the newspaper Rashtriya Sahara of 30.11.2000, which is titled:
Padmabhushan to Paroda, Padmashri to disciples, all miracles of forgery.
8. It would be seen that the first and the third item, which have been posted on the Public Notice Board have been lifted from the newspaper reports. The second item, which has been posted is vague and it is difficult to conclude as to who is intended to be targeted by this item. While this act of the Applicant may be uncalled for and not in good taste, yet it cannot be said to be an act of grave misconduct, which would merit withholding of pension or gratuity.
9. The enquiry officer in his findings has observed thus:
.it becomes quite clear that the messages contents displayed on the Public Notice Board for the IASRI Intranet System by the CO, since it is proved beyond doubt that the Intranet can only be assessed by authorized personnel of IASRI by entering the valid user identification numbers/code (user id) and password and that the time of logging into it is also documented. Also, the fact that all such contents must have been placed by the CO using his own (user id) and password is proved beyond doubt. (Ex. 2 to 6) (Folder-I). Some of fact relating to the mail dated 31-5-2008 of the CO to Dr. Pal Singh (Ex. I (Folder I) and that it could nowhere be proved that the Internet service was differentiated/ prioritized for some official(s)/unit(s) of the Institute. Article of Charge-II Findings: The fact that the CO had directly entered into correspondence with the President, ICAR rather than having routed through the laid down proper channel (Ex 7) (Folder I) is proved beyond doubt and which was also, viewed, seriously by the ICAR as evident from (Ex.7).
10. There is not even a whisper of the charges being of the nature of grave misconduct in the report of the enquiry officer. We are also the opinion that neither the charge of posting objectionable material on the Public Notice Board nor the charge of directly entering into correspondence with the President, ICAR can constitute charges of grave misconduct.
11. In D.V. Kapoor (supra), the Honourable Supreme Court, inter alia, held thus:
6. As seen the exercise of power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60.
12. In Mr. T.P. Venugopal (supra), the Honourable Delhi High Court observed thus:
17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming of a Government Servant has not recorded reasons as well as the findings as to commission of grave misconduct or grave negligence by the respondent. We also find that in the Memorandum issued to the respondent under Rule 14 of the CCS (CCA) Rules, 1965, petitioner has not leveled any such allegations against the respondent of having committed himself in such a manner so as to constitute grave misconduct or grave negligence and to invite penalty under Rule 3 of the CCS (CCA) Rules.
13. In B. Dev (supra), the Honourable Supreme Court observed thus:
13. The Tribunal has held that no charge of grave misconduct was framed or found proved against the respondent. This is clearly incorrect looking to the express language of the charge as framed and the enquiry report. The charge as framed expressly charged the respondent with having committed grave misconduct by remaining absent from duty without authorization and by continuing to disobey Government orders issued to him for joining duty. He was charged with lack of devotion to duty and of conduct unbecoming a Government servant, and this was violative of the provisions of Rule 3 (1), sub-clauses (ii) and (iii) of CCS (Conduct) Rules. The finding also is that this charge of grave misconduct has been proved in the enquiry report. The conduct, therefore, of the respondent falls under Rule 9 and the order of the President dated 18th of December, 1984 cannot be faulted. It is clear form the above observation that unless the language of the charge as framed or the enquiry report shows that the charge is of grave misconduct, the President cannot withhold pension or gratuity under Rule 9 of the CCS (Pension) Rules, 1972.
14. We are not holding that the charges are not of the nature of grave misconduct only because the misconduct alleged is under Rule 3 (1)(ii) and (iii) of CCS (Conduct) Rules, 1964 but on the reading of the charge as framed and the report of the enquiry officer, especially keeping in view the fact that alleged derogatory material was in public knowledge because it had appeared in the newspapers from which it was copied. The matter pertains to the year 2000-2001, almost a decade old. The Applicant has retired from service. On the reading of the charges, no prudent person would come to the conclusion that these would constitute grave misconduct. This has not been alleged in the Articles of Charge also and not given in the findings of the enquiry officer.
15. On the basis of above, we have no doubt in our mind that the charges against the Applicant cannot be said to constitute grave misconduct and on this ground, the Applicant cannot be proceeded against under Rule 9 of the CCS (Pension) Rules, 1972. The impugned order is set aside. There would be no further proceedings against the Applicant in regard to Articles of Charge contained in the Memorandum of Charge dated 19.07.2005. The Applicant would be eligible for full benefits of commuted value of pension, gratuity etc., whichever is payable to him post retirement and has not been paid. The arrears would be paid to the Applicant within two months of the receipt of a certified copy of this order. No costs.
( L.K. JOSHI ) ( V.K. BALI ) Vice Chairman (A) Chairman /dkm/