Delhi High Court
Union Of India (Uoi) And Ors. vs Mr. T.P. Venugopal on 6 November, 2007
Equivalent citations: 148(2008)DLT433
Author: Aruna Suresh
Bench: Manmohan Sarin, Aruna Suresh
JUDGMENT Aruna Suresh, J.
Page 3073
1. Present writ petition has been filed by the petitioner Union of India assailing the order dated 10.4.2006 of the Central Administrative Tribunal (hereinafter referred to as CAT) allowing OA No. 110/2005 filed by the respondent. Challenge in the OA was to order dated 22.1.2004, passed by the President whereby respondent was found guilty of grave misconduct and grave negligence and was imposed penalty of 20% cut in monthly pension for five years and 20% cut in gratuity otherwise admissible to the respondent. CAT by the impugned order quashed the cut in monthly pension and gratuity holding the same to be illegal since it was imposed without returning a finding of there being grave misconduct or grave negligence.
2. This case has a checkered history. Respondent was working as Senior Accounts Officer in the office of the Controller of Accounts. While in service he was charged under Rule 14 of the CCS(CCA) Rules, 1965 and was put under suspension on 29.10.1997. The charge sheet alleged violation of Rule 3(1)(ii) for failing to maintain devotion to duty; Rule 3(1)(iii) for doing something which is unbecoming of a Government servant; 3(2)(i) for failing to supervise and take all possible steps to ensure integrity and devotion to duty of the government servants who were working under him and under his control and authority at the relevant time; 3(2)(ii) for having not performed his official duty in exercise of the power conferred on him and having acted otherwise than to his best judgment and also without the direction of his official supervisor.
3. During the pendency of the enquiry respondent superannuated on 30.4.1998. Thereafter enquiry under Rule 9(2) of the CCS (Pension) Rules was conducted and in consultation with the UPSC, Disciplinary Authority, vide order dated 21.8.2001 imposed penalty of withholding 50% of monthly pension on permanent basis and 50% of gratuity admissible to the respondent. Aggrieved by the said order respondent filed OA No. 1354/2002 before the CAT. The said application was allowed vide order dated 7.3.2003. Thereafter in consequence of the said order of the CAT, Disciplinary Authority imposed penalty of Page 3074 20% cut in monthly pension for five years and 20% cut from monthly gratuity otherwise admissible, vide order dated 22.1.2004. Against this order respondent filed OA No. 110/2005 before the CAT challenging the order of penalty. The said order was set aside by the CAT vide its impugned order dated 10.4.2006, holding:
11. We have perused the Memorandum issued to the applicant under Rule 14 of the CCS(CCA) Rules, 1965 and find that nowhere the applicant has been alleged to have committed, in any manner, to constitute either 'grave misconduct' or 'grave negligence.'
12. On perusal of the inquiry report, we find that the inquiry officer, except recording the finding of unbecoming of the Govt. servant, has not recorded reasons as well as the findings as to commission of grave misconduct or grave negligence by the applicant.
13. In the light of the above, once there is no finding recorded in the course of the disciplinary proceedings, the condition precedent having not been satisfied, the President has no jurisdiction to pass an order of penalty with regard to cut in pension or gratuity under Rule 9 of the rules ibid. Resultantly, the impugned order passed cannot be sustained in law.
4. As noted it is this order dated 10.4.2006 which is under challenge before us in the present writ petition.
5. Ms. Rekha Palli, learned Counsel for the petitioner has submitted that respondent was guilty of grave negligence and grave misconduct in as much as bills were passed without verifying the signatures and that the companies in whose favor the bills were raised were fictitious. She further urged that the sanction accompanying the bills were from the Budget Control Section and not the user department and that the respondent should have known that the Budget Control Section does not have the responsibility of purchases. She alleged that the impugned bills did not relate to the miscellaneous section to which the respondent belonged. Respondent had the power under office Manual Part-II, Chapter 6 to deal with the payments falling within the miscellaneous section only. Respondent acted beyond his authority and sanctioned the payment of purchases.
6. Learned Counsel for the respondent pointed out that there has been an established procedure for years and the bills from other sections were also being processed and payment made. He alleged that in fact a note has been sought from CDA in this regard and existing practice has been to process such bills. It is further submitted that the sanction was from the Government of India, Ministry of defense and not from I&BC and, therefore, the responsibility for non-process of the case or non grant of sanction of the bills from B&FC section lay with the Ministry and once the Ministry granted the financial sanction, the fact that the initiation department was I&BC and not the procurement department, was of no consequence.
7. The enquiry against the respondent was initiated under Rule 3(1)(ii), 3(1)(iii), 3(2)(i) and 3(2)(ii) of the CCS (Conduct) Rules which is reproduced for facility of reference.
Page 3075
3. General:
(1) Every Government servant shall at all times:
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
(2)(i) Every Government servant holding supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior;
8. Since respondent retired during the pendency of the enquiry, the enquiry was continued under Rule 9 of the CCS Pension Rules, after his superannuation.
9. Perusal of the record shows that responsibility of forgery was on two persons who were proceeded against and dealt with by the CBI. As per report of the Inquiry Officer, the respondent had been held guilty and imposed with major penalty for his failure to ensure integrity and devotion to duty amongst officers under him and upon his failure to exercise his best judgment in ascertaining whether subordinates manipulated the submission of bills to him. Following are the relevant observations of the Inquiring Authority in his report to the Article of charge which were framed against the respondent:
7.1. ...By allowing subordinates to manipulate introduction of fraudulent documents, incomplete processing and completely failing to perform codal duties, the CO failed to take all possible steps to ensure the integrity and devotion to duty of all Government Servants for the time being under his control and authority thereby violating the provisions of Rules 3(1)(ii), 3(1)(iii) and Rule 3(2)(1) of CCS (Conduct) Rules, 1964. The charge is, therefore, proved.
7.2. ...The parameters applied to return other bills in respect of other department/sections were not applied to the fraudulent bills. It conclusively proves that the CO failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Government Servant and failed in the performance of his official duties thereby violating Rules 3(1)(ii), 3(1)(iii) and Rule 3(2)(ii) of CCS (Conduct) Rules, 1964. The charge stands proved.
7.3. ...The CO cannot unilaterally decide to continue past irregularities and deviations without personal written approval of CDA. The locally controlled head Bills were not sent to the Accounts Section as prescribed. Therefore, the CO failed to maintain devotion to duty and conducted himself in a manner unbecoming of a Government Servant. By permitting deliberate deviations from codal provisions, the CO failed to take all possible steps to ensure the integrity and devotion to duty of all Government Servants for the time being under his control thereby Page 3076 violating Rules 3(1)(ii), 3(1)(iii) and 3(2)(1) of CCS (Conduct) Rules, 1964. The charge is, therefore, PROVED.
7.4. ...All the fraudulent bills were received, processed and passed either on the same day of receipt or next day. Therefore, the charge that CO failed to maintain devotion to duty, conducted himself in a manner unbecoming of a Government Servant and failing in the performance of his official duties in exercise of powers conferred on him thereby violating the provisions of Rules 3(1)(ii), 3(1)(iii) and Rule 3(2)(ii) of CCS (Conduct) Rules, 1964 is proved.
10. From the reading of Memorandum of Charges and the report it is clear that respondent has nowhere been charged categorically with the grave misconduct or grave negligence, but only with violation of provisions of Rules 3(1) and Rule 3(2) of CCS (Conduct) Rules, 1964. It is worth mentioning here that petitioner has failed to point out whether it was a part of the duty of the Senior Accounts Officer to verify the genuineness of the firm and any established procedure in this regard, especially when during the course of arguments, learned Counsel for the petitioner conceded that the signatures on the impugned bills did match with the specimen signatures furnished by the department. The enquiry was with regard to the firms being fictitious. She further conceded that the signatures were referred to be as fictitious because the firms in whose names the bills were raised were fake. Learned Counsel for the petitioner did make an effort to emphasise that respondent should have known that the specimen signatures sent to him were not fake signatures as the signatures did not differ from the specimen signatures, which were earlier on record. It is possible, under the circumstances, that only exceptionally an alert officer who has a photogenic memory, may remember the special characteristics of specimen signatures and when another set of specimen signatures are sent to him he may or may not remember striking similarity or dissimilarity. Therefore, this cannot be taken as a grave negligence or grave misconduct on his part.
11. In Union of India and Ors. v. J. Ahmed where the officer was not very efficient officer and some negligence was attributed to him and some lack of qualities expected of an officer of his rank were listed as charges, and the officer was held liable to incur penalty under Rule 3, it was observed:
9. ...Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the Rules.
It was further observed:
...The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times Page 3077 maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty. Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If Rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general Rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
12. While interpreting what generally constitutes misconduct especially in the context of disciplinary proceedings entailing penalty, it was observed that code of conduct as set out in the conduct rules makes it clear that the lapse in performance expected of a government servant in the context of the conduct may not amount to misconduct. However, if a person conducts himself inconsistently while discharging his due and faithful duty, he is said to have committed misconduct. It was observed:
...There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence.
Page 3078
13. In D.V. Kapoor v. Union of India and Ors. while interpreting "grave misconduct" or "negligence" within the meaning of Rule 8(5)(2) and 9 of the CCS Pension Rules, it was observed:
5. It is seen that the President has reserved to himself the right to withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the deliquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuinity with which misconduct or irregularity was committed.
14. CCS Pension Rules give statutory right to an employee to pension on his reaching the age of superannuation. Therefore, the steps which may be taken for deprivation of pension to an employee must be correlative to or commensurate with the gravity of grave misconduct or irregularities as it deprives the right of the employee to have financial assistance on the evening of his life as is assured to him under Article 14 of the Constitution. In the present case the signatures on the bills passed by the respondent are not in dispute. It is the bills which happened to be in the fake name of the firms which became bone of contention resulting in the respondent facing enquiry under Rule 14 of the CCS (CCA) Rules. As pointed out above the counsel did admit that the signatures of the person who had signed the bills tallied with the specimen signatures which were sent to respondent by concerned officer for comparison and which were otherwise available on record earlier. The respondent cannot be considered to be an expert in comparing the signatures but with the experience he must have learnt to compare disputed signatures with the specimen signatures. With the memory which he might have at that time he compared the signatures on the bills with the specimen signatures which were already with him on the record. Simply because he failed to compare the signatures properly cannot be said to be a gross negligent act on his part. The counsel for the petitioner could not reply the query put by the Court whether it was the duty of the respondent to verify the genuineness of the firms and if so, was there any established procedure in this regard. Counsel failed to point out any such procedure.
15. The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted Page 3079 himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him.
16. It is not disputed by the respondent that the 10 impugned bills which he passed did not fall within the Miscellaneous Section to which he belonged. However, it has been pointed out by the respondent that sanctions were not from I & BC Section but from the Government of India, Ministry of defense, therefore, the responsibility for non-process of the case or non-grant of sanction of the bills from B&FC Section lays with the Ministry. Since the Ministry had granted financial sanction, the fact that the initiating department was I&BC and not the procurement department under the circumstances has no consequence. While finding respondent guilty of article of charge No. 3, it was observed by the Enquiry Officer that there has been irregularities and deviations without personal written approval of CDA in the past which were being followed by the COs. It was alleged that CO could not unilaterally decide to continue past irregularities without personal written approval of the CDA and this became the ground for holding him responsible for failing to maintain devotion to duty and conducting himself in a manner unbecoming of a Government servant. Since respondent followed the established procedure which was being followed over the years where bills from other sections were also being processed and payments made thereof, the Enquiry Officer though found the charge proved, did not hold that respondent had gravely misconducted himself and also committed gross negligence in passing the bills.
17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming 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 levelled 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.
18. Hence, we find no illegality or infirmity in the order of Tribunal. The present writ petition being without any merits is hereby dismissed.