Central Administrative Tribunal - Delhi
Om Prakash Sharma vs Director Of Education on 13 November, 2013
Central Administrative Tribunal Principal Bench O.A. No.671/2013 Order reserved on: 26.02.2013 Order pronounced on: 13.11.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. V. Ajay Kumar, Member (J) Om Prakash Sharma, Retired TGT (Natural Science) In the Government Co-ed, Middle School, Raghubir Nagar, New Delhi. -Applicant (By Advocate: Shri S.D. Sharma) Versus 1. Director of Education, Directorate of Education, Old Secretariat, Delhi. 2. Chief Secretary, Govt. of NCT, Delhi. Secretariat Building, I.P. Estate, Delhi-2. -Respondents O R D E R Mr. Sudhir Kumar, Member (A):
This matter was heard on the point of admittance for the purpose of issuance of notice, and orders were reserved.
2. The case of the applicant is that while he was working as TGT (Natural Science), he was falsely implicated in a case, FIR No.107/2005 dated 17.02.2005, and was arrested and remained in custody till 21.02.2006, i.e. for more than one year, after which he was granted bail, as the prosecutrix had completely exonerated the applicant in her Court deposition.
3. Disciplinary proceedings were initiated against him under Rule-14 of the CCS (CCA) Rules, 1965, vide Office Memorandum dated 15.12.2008, and the applicant was charged under two Articles, first regarding the arrest of the applicant by the police, and the second regarding his having indulged in the incident of gang rape, as alleged by the police in the charge sheet. Later, the criminal trial of the applicant was concluded, and he was acquitted by the Trial Court vide judgment dated 21.12.2010. The applicant has mentioned that neither the complainant nor the State preferred any appeal against the acquittal before any Court, and, therefore, his acquittal from Trial Court attained finality.
4. However, the disciplinary proceedings initiated against him were conducted by the Enquiry Officer, Smt. Bimla Yadav, Principal, and she submitted her enquiry report on 12.02.2011. In the said enquiry report, Article-I was concluded as proved, as it related to the arrest of the accused in the case, which was an undisputed fact. However, the Article-II was held to be not proved, as the Enquiry Officer mentioned that during the course of the enquiry, the prosecurtrix girl concerned, Ms. Shipra D/o Govind, was called by the Enquiry Officer through notices sent by post, by hand, and through police, and it was revealed that the said Ms. Shipra, and her father Govind no longer resided at the address given earlier, and that as a result no statement of the girl concerned could be recorded during the enquiry. The applicant also filed a copy of the judgment of his acquittal before the Enquiry Officer, and, therefore, the Enquiry officer held that as the main witness/complainant in the gang rape case was herself not available to depose her evidence, and there was no other evidence connecting the Charged Official to the charge of gang rape, the charge under Article-II of the Articles of Charge could not be held to have been substantiated during the disciplinary enquiry.
5. The Enquiry Report was submitted on file, and the applicant has claimed that it was accepted on file by the then Director of Education, Shri P. Krishnamurthy, and the applicant has claimed that after such orders having been passed on the file by his the then Disciplinary Authority, Shri P. Krishnamurthy, and his having accepted the enquiry report, he stood exonerated from all the charges. The matter was then referred to the Ministry of HRD, Government of India, and the only aspect that remained to be considered was the pension of the applicant/Charged Official. However, the applicant is aggrieved that he instead received a Disagreement Note dated 26.04.2012 issued by his the then Disciplinary Authority, which has been produced by him as impugned Annexure-A (pages 24 to 26 of the paper book). This Disagreement Note had asked the applicant to file his representation, as to why he should not be punished, and the applicant has submitted that the issuance of this impugned Disagreement Note is nothing but blatant and gross misuse of the process of law, and against the principles of natural justice, as he has been victimized unnecessarily, having been harassed first when he was falsely implicated in a gang-rape case, and suffered from mental and physical agony in the jail, and then he had to suffer suspension from service, and his pension dues were also withheld, and now, despite the fact that he had been exonerated on file by the Disciplinary Authority, as well as by the Trial Court, the impugned Disagreement Note has been sent to him, in spite of the fact that the disciplinary proceedings against him already stood closed on 08.04.2011, when Shri P. Krishnamurthy, his the then Disciplinary Authority, had closed the case by ordering so on the file.
6. The applicant has, therefore, taken the ground that the impugned Disagreement Note dated 26.04.2012 communicated to him through the respondents letter dated 02.05.2012 is liable to be quashed, as it is nothing but misuse of process of law, and against the principles of natural justice, and it has been issued by a gross misuse of the official position by the respondents, bypassing all the Rules and Regulations, and is patently illegal, and the same holds no value because the proceedings against the applicant had come to an end on 08.04.2011, when his the then Disciplinary Authority had passed an order on file in favour of the applicant, which had since attained finality, and which order was binding upon the department, and the issue cannot now be re-opened and decided contrary to the earlier decision, taken more than one year before the issuance of the impugned Disagreement Note.
7. He has further taken the ground that in so far as the Disciplinary Authority is concerned, the matter cannot be re-agitated, revived or reopened again by the successor Director of Education in any manner whatsoever, as the Director of Education as the Disciplinary Authority had become functus officio the moment it had passed the earlier order dated 08.04.2011, and that he cannot be tried twice by the same authority, particularly when he has already been exonerated from all the charges as mentioned earlier, and had, therefore, prayed that the impugned Disagreement Note is liable to be quashed on the ground that it had been issued deliberately and with malafide intention, and has not even referred to the earlier decision of the earlier Disciplinary Authority, Shri P. Krishnamurthy, the then Director of Education, who had passed an order on file on 08.04.2011, a copy of which he had obtained under the RTI Act, and that since he had decided that the charge of misconduct against the applicant was neither proved in the criminal proceedings, nor in the departmental proceedings, and therefore, the impugned Disagreement Note could not have been issued after more than one year, without application of mind, and bypassing the previous note-sheet orders of Shri P. Krishnamurthy, the then Director of Education and Disciplinary Authority. The applicant further pleaded that the impugned Disagreement Note is further liable to be quashed on the ground that before submitting the case to the Ministry of HRD for further action under Rule-9 of the CCS (Pension) Rules, 1972, the earlier orders dated 08.04.2011 passed on file by the then Director of Education had been suppressed deliberately. The case of the applicant was argued on the above lines for the purposes of admission for issuance of notices.
8. It is trite law that mere file notings do not amount to an order. File notings are opinions of the authorities concerned, and what amounts to an order giving rise to a cause of action to the applicant can only be the communication of the final decision of the authorities concerned. This aspect has also been commented upon by the Honble Apex Court in the case of Union of India & Ors. vs. N.R. Parmar & Others (and the four related cases): 2012 (1) SCALE 437=JT 2012(12) SC 99, decided by the Honble Apex Court on 27-11-2012, in which it has been held that file notings can at best be used for the purpose of contemporaneous exposition, in order to seek clarifications, if any are required, regarding a particular Government order or official Memorandum, in the case any elements of doubt remained.
9. The sole reliance of the applicant is upon the copies of the Note sheet obtained by him under the R.T.I. Act, in which the then Director of Education, Shri P. Krishnamurthy, had on the Office Order Sheet Note put to him in this regard, recorded his observations as his having agreed for dropping of the disciplinary proceedings case against the applicant. But it is clear even from the copies of the Order Sheets as produced by the applicant at page-33 of the paper book that while the then Director of Education, Shri P. Krishnamurthy, had opined to accept the enquiry report, and for providing a copy of which to the Charged Official for submitting his representation, if any, on the findings of the Enquiry Officer, and thereafter, the case being sent to the Ministry of HRD, Govt. of India for further action under Rule-9 of CCS (Pension) Rules, 1972, and he had then marked the paper to the Additional D.E. Vigilance, who had marked it downwards for a draft Memorandum to be prepared accordingly, and, apparently, this process of communication of the report of the Enquiry Officer to the applicant was completed vide Memorandum dated 15.04.2011, for making representation, if any, within 15 days, but no representation in this regard was made by the applicant. Thereafter, after waiting for his reply for nearly one year, the matter was placed before the then incumbent Director of Education, who had now come to occupy the chair concerned as the Disciplinary Authority of the applicant. The Disagreement Note dated 26.04.2012 is the culmination of the application of mind by the incumbent Disciplinary Authority and Director of Education as on that date.
10. As per the procedure prescribed under CCS (CCA) Rules, 1965, the final decision of the Disciplinary Authority regarding acceptance or otherwise of the enquiry report cannot be arrived at before or without inviting comments of the delinquent Government official upon the report of the disciplinary enquiry. This is clearly borne out from Rule 14 (4) to Rule 14 (23) of CCS (CCA) Rules, 1965, and the clarification issued by the DoP&T thereunder. Therefore, even the note-sheet orders dated 08.04.2011 recorded on file by the then Director of Education, Shri P. Krishnamurthy, could have attained finality only if the applicant had immediately responded to the Memorandum dated 15.04.2011 served upon him for making representation, if any, within 15 days, and the submissions of the delinquent official/applicant upon the report of the disciplinary enquiry, as submitted by the Enquiry Officer, had then been accepted by the then Director of Education, Shri P. Krishnamurthy, to the same effect, as per the opinion recorded by him on 08.04.2011, which did not happen.
11. By neglecting to respond to the Memorandum dated 15.04.2011, and not responding to it for almost one year after it was issued on 15.04.2011, the applicant has himself let go of an opportunity, which was available to him, for the case against him to be concluded by his the then Disciplinary Authority, Shri P. Krishnamurthy.
12. Since, in the meanwhile, there has been a change of the incumbent Disciplinary Authority, and the applicant had neglected to respond to the Memorandum dated 15.04.2011 for nearly one year, he cannot now be allowed to plead that the incumbent Director of Education as on 26.04.2012 could not have applied his mind to the applicants case, and passed the order, which he has passed by way of the impugned Disagreement Note, with which the applicant is aggrieved.
13. As on 26.04.2012, the views of the previous incumbent Director of Education, Shri P. Krishnamurthy, had ceased to have any final or binding effect, since the applicant had neglected to reply to the Memorandum dated 15.04.2011. The powers of an incumbent officer occupying the chair to pass all administrative and quasi-judicial orders, with which his chair is burdened, was examined by the Honble Calcutta High Court in the case of Paresh Chandra Datta v. Collector of Calcutta and Ors. 1979 (1) SLR 44 (Cal.), wherein it was clearly held, in the very context of CCS (CCA) Rules, 1965, itself, that an officer who is only acting in place of the appointing authority, as a stop gap arrangement, while the former is on leave, was not competent to perform the statutory functions, and a charge sheet issued by an authority holding only current duty charge, by way of stop-gap arrangement, was illegal, and the enquiry was, therefore, vitiated.
14. However, on the other end of spectrum also, the Honble Apex Court has held in the case of Punjab National Bank & Others vs. Kunj Bihari 1998 (7) SCC 84 that a disciplinary enquiry is completed only by passing of the final orders of the Disciplinary Authority, after receiving representation of the charged delinquent Government official after communication of the enquiry report to him. Further, in the case of Secretary to the Government of Haryana & Ors. vs. Vidya Sagar (2009) 14 SCC 652, it was held by the Honble Apex Court that in the matter of administrative orders, the one which is specific, and gives out its reasons in a comprehensive manner, shall prevail. Here, in the two orders before us, the Disagreement Note dated 26.04.2012 carries the virtues required by the above judgment of the Honble Apex Court, which were absent in the file noting of the predecessor Director of Education, Shri P. Krishnamurthy, who had only recorded a cryptic finding on the note-sheet regarding his having accepted the enquiry report.
15. Therefore, going by the judgment of the Honble Apex Court in Paresh Chandra Datta (supra), since a disciplinary enquiry is deemed to have been completed only with that order of the Disciplinary Authority which is passed after having received the comments of the delinquent Government official on the enquiry report, as submitted by the Enquiry Officer, and his having applied his mind to both, the order of the then Director of Education on file note-sheet dated 08.04.2011 cannot at all be called a final order for conclusion of the disciplinary enquiry against the applicant, and only the impugned Disagreement Note dated 26.04.2012, which has been passed by the then incumbent Director of Education, after having waited for one year for the delinquent Government official, to respond to the Memorandum dated 15.04.2011, asking him to make representation against the report of the Enquiry Officer, if any, is the interim opinion or order of the Disciplinary Authority, passing of which is essential prior to imposition of penalty upon the delinquent Government official, which can follow only after the applicant delinquent Government official has provided his response to the said Disagreement Note.
16. In the facts and circumstances of the case, since the process of completion of disciplinary enquiry proceedings itself has not yet taken place, and the delinquent official/applicant has yet to respond to the Disagreement Note as conveyed to him through Annexure-A dated 26.04.2012, and the final orders of punishment have yet to be passed by the applicants Disciplinary Authority, the present OA is obviously premature, and, therefore, the OA is dismissed in limine. However, the respondents shall allow to the applicant one more months time, after the date of receipt of a copy of this order, to reply to the Note of Disagreement since served upon him. But there shall be no order as to costs.
(V. Ajay Kumar) (Sudhir Kumar)
Member (J) Member (A)
cc.