Central Administrative Tribunal - Ernakulam
C. Komalan vs The Comptroller & Auditor General Of ... on 27 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 832 of 2010
Wednesday, this the 27th day of July, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
C. Komalan,
S/o. (late) P. Chellappan Nadar,
Record Keeper, Welfare Section (A&E),
Office of the Accountant General (A&E),
Thiruvananthapuram,
Residing at : "AARAM" Kuttiyani,
Pandalakkode P.O., Thiruvananthapuram : 09 .... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1 The Comptroller & Auditor General of India
Government of India, New Delhi.
2 The Senior Deputy Accountant General (Admn)
Office of the Accountant General (A&E)
Kerala, Thiruvananthapuram.
3 The Accountant General (A&E),
Kerala, Thiruvananthapuram.
4 V. Ravidran
Principal Accountant General (A&E)
Andhra Pradesh, Hyderabad.
5. Shri K. Vijayakumaran,
Sr. Deputy Accountant General (Admn),
Office of the Accountant General (A&E)
Kerala, Thiruvananthapuram. ... Respondents.
(By Advocate Mr. V.V. Asokan)
The application having been heard on 27.07.11, this Tribunal on the
same day delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant who is presently working as Record Keeper in the 2nd/6th respondent in the office of the Accountant General (A&E), Thiruvanathapuram, is aggrieved by the disciplinary proceedings initiated against him and the penalty order of withholding of his increments for a period of three years with a direction that he would not earn any increment during the currency of the penalty order dated 30.09.2008 and the appellate order dated 24.12.2008 confirming the same. He has filed this O.A for setting aside Annexures A-1, A-2, A-3 and A-4 orders and for a direction to the respondents to grant him all consequential benefits including arrears of pay and allowances as if the aforesaid orders had not been issued at all.
2. The disciplinary proceedings under Rule 16 of the CCS (CCA) Rules, 1965 were initiated against the applicant vide memorandum dated 15.07.2008 for his alleged participation in the demonstrations held within the office premises on 24.03.2008 and 30.04.2008 shouting slogans which were insubordinate in nature. Since the explanations furnished by him were not found tenable, the disciplinary authority vide order dated 30.09.2008 (Annexure A-3) imposed minor penalty of withholding of all increments of pay for a period of three years. Annexure A-3 order has been confirmed by the appellate authority as per Annexure A-4 order. In response to the charge memo, the applicant requested the respondents for permission to inspect the relevant records in support of the disciplinary proceedings initiated against him. The applicant was given two chances to inspect the records including the video clippings. But he did not avail the same. The applicant filed a reply dated 11.08.08 denying the charges and raising contentions with reference to the video recordings kept by the disciplinary authority.
3. The applicant submitted that the entire disciplinary proceedings against him is illegal and arbitrary. The 5th and 6th respondents are respectively the appellate authority and the disciplinary authority of the applicant whose functioning, it was alleged, got disrupted by him on 24.03.2008 and 30.04.2008 by participating in the alleged demonstrations. The applicant was imposed with the aforesaid punishment by the disciplinary authority and confirmed by the appellate authority. Both the disciplinary authority and the appellate authority have already set their minds to impose the punishment and accordingly, Annexure A-1 memorandum and consequential orders are per se illegal and non est in the eyes of law. The applicant disputed the authenticity of video clippings. Unless and until the video clippings on which the disciplinary action is based are produced in a regularly constituted departmental enquiry and proved in accordance with law, they have no validity. The reports relied upon by the disciplinary authority for imputing the applicant with misconduct were not subjected to cross examination. The reports submitted by them are involuntary and inspired. There is no legally established evidence against the applicant. Therefore, the orders at Annexures A-1 to A-4 are liable to be interfered with.
4. The respondents in their reply statement submitted that they have considered the contentions of the applicant properly and legally. The disciplinary authority has in categoric terms assigned his reasons to dispense with a formal enquiry in the matter. The disciplinary proceedings were initiated against the applicant based on clinching evidence substantiating his participation in the illegal agitations held on 24.03.2008 and 30.04.2008. Despite the warning, the applicant had deliberately indulged in unlawful act. The Rule16 of CCS (CCA) Rules, 1965 invests wide discretionary powers with the disciplinary authority. An enquiry is required to be held only in cases in which the disciplinary authority is of the opinion that such enquiry is necessary. Therefore, the applicant is not entitled to any of the reliefs as prayed for in the O.A.
5. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. V.V. Asokan. learned counsel for the respondents and perused the materials on record.
6. As per Rule 16 of the CCS (CCA)Rules, 1965, a Government servant against whom the penalties specified in clause (i) to (iv) of the Rule 11 is made, is to be informed in writing about the action proposed to be taken against him and of the imputations of misconduct on which it is proposed to be taken and giving him reasonable opportunity to defend himself. But an enquiry in the manner laid down in sub-rules (3) to (23) of Rule 14 is required to be held only in cases in which the Disciplinary Authority is of the opinion that such enquiry is necessary. The Disciplinary Authority is vested with a discretion to hold or not to hold an enquiry when a minor penalty is proposed to be imposed. Mere demand for an enquiry by itself does not compel the Disciplinary Authority to hold an enquiry. But the discretion vested with the authority statutorily should be exercised in a reasonable manner and not capriciously or arbitrarily. This Tribunal had, in the order dated 23.06.2011 in O.A. No. 211/2010, held as under:
"7. ...... Therefore, we proceed to hold that in cases where the proposed punishment to be imposed is of a minor nature and not specified under Clause (i) to (iv) of Rule 11, there is a discretion vested with the Disciplinary Authority to decide as to whether an inquiry should be held in the given set of facts or not. Such decision should be reasonable and should not be capricious or arbitrary. In case, it is decided in a capricious or arbitrary manner the same is subject to judicial review.
8. The Bombay Bench of the Tribunal has considered a similar issue in O.A.No.157/2007 decided on 12th April, 2011. Though the consideration thereunder was with reference to Rule 10(b) of the All India Services (Discipline & Appeal) Rules, 1969 which is similar to Rule 16(1) of the CCS(CCA) Rules, 1965, under examination. The Tribunal referred to the decision of the Apex Court in Food Corporation of India case (2001)1 SCC 165) and after taking into consideration of the relevant rules held:-
"Even though holding an inquiry in the manner as in sub- rule 23 of Rule 8 is mandatory if the punishment proposed is to withhold increments of pay for a period exceeding 3 years or with cumulative effect for any period or has to adversely affect the amount of pension payable to him. There is, however, a discretion vested with the Disciplinary Authority to hold an inquiry in other cases. In other words, not only in the case of imposing a major penalty, but also in the case of imposition of a minor penalty of barring of increment with cumulative effect or which has got the effect of affecting the amount of pension etc., the same procedure as contemplated for imposing a major penalty is required to be taken. In other types of penalty proposed to be imposed which are minor in nature, there also an inquiry at the discretion of the officer would be held provided the Disciplinary Authority is of the opinion that such inquiry is necessary. Thus, the opinion to be formed by the Disciplinary Authority being one conferred on him by Rule it is necessarily to be exercised in an objective manner and not subjective. Even though a right as such in express term is not conferred on an employee to request for conducting any such inquiry in the type of cases as falling under the last limb of Rule 10(b), it is settled law that when a discretion is vested with the authority to form an opinion as to whether an inquiry should be held or not, either he can exercise his powers suo moto or such powers can be invoked by a person who may be proceeded with on a disciplinary action. In that event, the Disciplinary Authority is bound to apply his mind on the request made by the employee which is only inviting the Disciplinary Authority to exercise his discretion to form an opinion as to whether an inquiry should be held or not. Once he is invited to decide whether an inquiry should be held or not, there is no two alternative, but to express an opinion with reference to the factual situation and the materials on record and say whether in his opinion an inquiry as requested by the delinquent is required to be held or not. This opinion is to be supported by reason so that if the decision made is capriciously taken or without application of mind or for extraneous consideration as may be turned out, which are normal grounds available to attack in quasi judicial order, then a judicial review is permissible on the decision so taken. Therefore, when such an order is passed, which is amenable to judicial review, it is incumbent on the Disciplinary Authority to pass an order, in other words, by not passing an order thereby takes away the right of the employee to question the order if passed, on valid grounds."
9. We may, in this connection also, refer to a similar view taken by the Coordinate Bench of this Tribunal in O.A.247/10 and connected cases dated 22.9.2010 - S.V.Santhoshkumar & others Vs. The Comptroller and Auditor General of India & others and two other decisions of this Tribunal in O.A.768/10 and connected cases dated 15.11.2010 -
Krishnadas A.K & others Vs. The Comptroller and Auditor General of India & others and O.A.872/09 dated 15.3.2011 - Santhosh Kumar S.V. Vs. The Deputy Comptroller and Auditor General & others. In O.A.247/10 and connected cases decided on 22.9.2010 this question was considered and there are observations which also supports the same view as we have taken that the discretion is vested on the Disciplinary Authority to hold an inquiry before imposing a minor penalty not covered by (1-A) of Rule 16. It was held in these two batch of cases, however, after examining the particular facts of these cases that decision not to hold an inquiry is vitiated as circumstances warrants holding of an inquiry. In other words, it was held that the decision not to hold an inquiry in the given set of facts is arbitrary and on that ground the order imposing punishment was set aside leaving open the right of the employer to proceed to hold an inquiry and take appropriate action, if so advised.
10. Therefore, we have to examine as to whether in the present case imposition of the penalty without holding an inquiry can be considered to be a reasonable exercise of the discretion by the authority concerned or is it arbitrary. In O.A.247/10 and connected cases wherein para 8 of the order it was held that even in cases where a minor penalty is imposed, the Disciplinary Authority has to indicate the reasons in writing as to why the inquiry is dispensed with. That is a case where there is a specific request to conduct an inquiry made by the employee but the authority did not hold an inquiry but proceeded to impose the penalty relying on the materials available on records. The materials which were relied on by the Disciplinary Authority were the video recordings and statement made mentioned of in the punishment order. It was the specific contention on behalf of the applicants that the applicants could not prove their innocence. The veracity of the video recordings and statement mentioned in the punishment order could not be verified in the absence of a formal inquiry. In the present case also, the only evidence based on which the punishment is imposed on the applicant are the same statement and the video clippings only. Therefore, on the available materials on record it can very well be said that the decision of the authority not to hold an inquiry and imposing a punishment is arbitrary and is not based on its discretion exercised as contemplated under Rule 16 (1) (b) of the CCS (CCA) Rules, 1965. On the short ground this application is liable to be allowed. It is contended that even the charges as levelled against the applicant are not sustainable in the eye of law. In the above view, we are not going into the merits of the other contentions raised as the final decision to be taken by the authority being subject to such inquiry has to be held as directed, it will be open to the applicant to raise such contentions as and when occasions warrants.
11. In the result, we hold :-
(i) Though it is not incumbent on the Disciplinary Authority to hold an inquiry in every case in which the applicant seeks for such an inquiry to be held nevertheless it is incumbent on him to consider such request and exercise the discretion in a reasonable manner based on materials on record and decide whether an inquiry should be held or not.
(ii) The decision of the Disciplinary Authority in deciding not to hold an inquiry should not be capricious or arbitrary and the orders passed are subject to judicial review.
(iii) The power to hold an inquiry by the Disciplinary Authority can either be exercised suo moto or on the request by the employee concerned.
Such request, if made, the authorities are bound to take a decision as to whether an inquiry should be held or not and give his reasons thereof.
12. In the particular facts and circumstances of the case and for parity of reasons as held in O.A.247/10 and connected cases by another Bench of this Tribunal, we hold that based on the materials available on record it has to be held that the decision taken by the authority not to hold an inquiry is arbitrary and, therefore, liable to be set aside. In the result, we set aside the order imposing the punishment leaving open the right of the respondents to proceed to hold an inquiry from the stage of holding an inquiry and to take a decision in accordance with the law. The applicant will be entitled for restoration of the monetary benefits on the expiry of three months but in case final orders are passed such benefits will be subject to the same."
7. In the instant case, vide order dated 11.08.2008 at Annexure A-9, the applicant had requested to conduct an enquiry as provided in CCS (CCA) Rules, 1965 so that he could prove his innocence, but the disciplinary authority chose to proceed with the disciplinary action. In the context of a specific demand to hold an enquiry, the disciplinary authority has dealt with the request of the applicant for holding an enquiry in the penalty order at Annexure A-3 as under :
"Further, Shri Komalan.C has been afforded all opportunities of natural justice. He has been offered the opportunity to peruse the evidence against him. The Disciplinary Authority is of the firm and considered opinion that a former enquiry will not in any manner further the cause of justice. A formal enquiry is unnecessary in the circumstances and the request is therefore denied." The decision not to hold an enquiry is part of the penalty order. It has not been communicated to the applicant with reasons thereof before issuing the penalty order. The decision to hold or not to hold an enquiry is subject to judicial review as held in the order of this Tribunal cited above. Non communication of the decision in the instant case, not to hold an enquiry as requested by the applicant is arbitrary and bad in law. The order of this Tribunal in the aforesaid O.A squarely covers the instant O.A. Following the decision of this Tribunal in the aforesaid O.A, we hold that based on the facts of the case under consideration, the decision taken by the Disciplinary Authority not to hold an enquiry for the reason of non-communication to the applicant before the penalty was imposed on him is arbitrary and therefore, liable to be set aside leaving other points raised in the O.A open. Accordingly, it is ordered as under.
8. The order Annexure A-3 dated 30.09.2008 imposing the punishment on the applicant and Annexure A-4 order dated 24.12.2008 confirming the same are hereby quashed and set aside. The right of the respondents to proceed to hold an enquiry from the stage of holding an inquiry and to take a decision in accordance with the law is left open. The applicant will be entitled for restoration of the monetary benefits on the expiry of three months but in case final orders are passed, such benefits will be subject to the same.
9. The O.A is allowed to the extent indicated above. No order as to costs.
(Dated, the 27th July, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.