Rakesh Mohan Gupta vs M/O Home Affairs on 20 November, 2017

[Cites 2, Cited by 0]

Central Administrative Tribunal - Chandigarh

Rakesh Mohan Gupta vs M/O Home Affairs on 20 November, 2017

1. The challenge in the instant Original Application (OA), instituted by applicant Rakesh Mohan Gupta S/o A.N. Garg, Section Officer (SO), Subsidiary Intelligence Bureau, Ministry of Home Affairs, Government of India, Chandigarh, is to the impugned orders 9/10th July, 2013 (Annexure A-4), whereby a penalty of reduction in pay, by one stage for a period of 3 years, 2 (OA No.060/00737/2016) without cumulative effect, is imposed on him by the competent authority, order dated 3/6.6.2016 (Annexure A-1), vide which the appeal dated 19.8.2013 (Annexure A-29), filed by him, was dismissed as well, by the Appellate Authority (AA) (President of India). He has also assailed the validity of the impugned Union Public Service Commission (UPSC) advice dated 17.9.2014, served upon him vide Memorandum dated 1.7.2015 (Annexure A-2), dis-agreement note dated 11.2.2013 (Annexure A-3) and charge sheet dated 7.7.2011 (Annexure A-19), issued by the Competent Authority.

2. The matrix of the facts and the material, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant OA, and exposited from the record, is that applicant was working as Section Officer (SO) in the office of Intelligence Bureau at New Delhi till June, 2008.

Thereafter, he was transferred, as such, to Chandigarh on July 11, 2008. While working as SO, in the office of Intelligence Bureau at Delhi, he was stated to have harassed complainant Mohan Lal (Respondent No.3), on caste basis, as per complaint dated 25.9.2009 (Annexure A-15), which formed the basis of impugned charge-sheet (Annexure A-19). Thus, he was stated to have committed misconduct, during the course of his employment at Delhi.

3. As a consequence thereof, he was departmentally dealt with under the Central Civil Services (Classification, Control & Appeal) Rules, 1965, (hereinafter to be referred to as "CCA Rules"), for the following charges :-

(OA No.060/00737/2016) "ARTICLE That the said Shri R.M. Gupta, while he was posted as Section Officer at IB Hqrs., New Delhi, during the period w.e.f. April 2007 to February 2008, had harassed his subordinate Shri Mohan Lal, then JIO-II/G (now JIO- I/G) by passing caste based remarks against him in the presence of staff members of his Branch.

Thus, by his aforesaid act of harassing Shri Mohan Lal by passing caste based remarks against him, Shri R.M.Gupta, Section Officer has exhibited conduct unbecoming of a Government servant, thereby, violating Rule 3 (1)(iii) of the CCS (Conduct) Rules, 1964".

4. Consequently, Inquiry Officer (IO) was appointed vide orders dated 16.8.2011 by the Disciplinary Authority (DA) to enquire into the charge framed against the applicant. After going through the oral, as well as documentary evidence, brought on record by the parties, the IO has finally concluded that the charge levelled against the applicant is not, at all, proved, vide detailed enquiry report dated 20.9.2012 (Annexure A-5).

However, the DA did not agree with the findings of the IO and recorded the impugned dis-agreement note dated 11.2.2013 (Annexure A-3). After considering the reply to the disagreement note, the DA imposed the above mentioned penalty on the applicant vide impugned order dated 10.7.2013 (Annexure A-4).

The appeal dated 19.8.2013 (Annexure A-29) preferred by the applicant was also dismissed by the AA, vide impugned order dated 3/6.6.2016 (Annexure A-1).

5. Aggrieved thereby, the applicant has preferred the instant OA, challenging the validity of impugned orders, on the following grounds :-

(OA No.060/00737/2016)

1. That the alleged incident had occurred on April 5, 2007 and Shri Vimal Vinayak Gupta (PW-1) has confirmed during his cross examination that he was in „JA‟ Branch upto April 12, 2007. He was relieved from „JA‟ Branch on his promotion as Section Officer in Finance Cell, at IB Hqrs, New Delhi. Thus, during his (PW-1‟s) stay in „JA‟ Branch Shri Mohan Lal was not present, except for a few minutes on 05.04.2007 when he had come to „JA‟ Branch to submit his joining report and departure report before proceeding on leave. The PW-1 was not posted in „JA‟ Branch when Shri Mohan Lal returned from leave on September 3, 2007.

Further, PW-1, has stated in his statement dated nil (listed in Annexure III of the Charge Memo) that (i) the CO started harassing Shri Mohan Lal after his joining „JA‟ Branch and (ii) the CO used caste based words, frequently, to harass and humiliate him. It is relevant to submit that when the complainant stayed in „JA‟ Branch only for a few minutes on 05.04.2007, therefore, the version of PW-1 to the effect that the petitioner used the words in his statement that the CO „started‟ harassing him and was using caste based words „frequently‟ is totally false and cannot be relied upon.

Therefore, it is evident that the statements made by the PW-1 are contradictory and based on malafide against the petitioner as at one stage, the PW-1 stated that the CO (Petitioner) used to speak (caste based words) against this community but in response to a question he stated that the CO had good relations with another member of this Community (Shri Sanjeev Kumar) in the Branch. Further, the PW-1 did not State the actual caste based words allegedly used by the CO against Shri Mohan Lal. Further during cross examination, the PW-1 stated that Shri Mohan Lal submitted his joining report on 05.04.2007 along with departure report and proceeded on leave immediately.

It is evident that the impugned order passed by the DIB (Disciplinary Authority) and the Appellate Authority whereby the reliance has been placed on the aforesaid witness is arbitrary and not sustainable in the eyes of law. It is relevant to mention that the impugned orders dated 11.02.2013, 10.07.2013, 10.07.2015 and 06.06.2016 have been passed without consideration of the statements made by the aforesaid witness in his cross examination and is merely an assertion made by him in his examination in Chief. Therefore, the respondents have committed a material irregularity by not considering the statements made by the witnesses in totality/cross-examination and also ignoring the inquiry report (Annexure A-5) on the subject matter.

2. That it has been observed from the statement dated 19.02.2010 (listed in Annexure III of the charge memo) of Shri Lal Babu Jha (PW-2), statement dated 19.01.2012 (given by him during the hearing on 19.01.2012) and examination & cross examination that :-

(OA No.060/00737/2016)

(i) In his earlier statement dated 19.02.2010 (listed in Annexure III of the Charge Memo) the PW-2 did not indicate the date and time of incident.

(ii) His career was not spoiled by the CO as he (PW-2) was not posted under the CO and the CO never initiated his ACR.

(iii) He stated in his statement dated 19.02.2010 that the CO used to call Shri Mohan Lal by caste based words (i.e. Chura, Chamar) to harass and humiliate him, but in response to a question he stated that he was not aware whether similar incidents occurred prior to or after 05.04.2007.

(iv) He was a member of „J‟ Branch but allegedly visited „JA‟ Branch to deliver a paper to SO/JA.

It is relevant to submit that during cross examination of other PWs and Addl. PW, none of them stated that Shri Lal Babu Jha (PW-2) was present at the time of alleged incident, given by the other PWs and Addl.

PW, during cross, examination are as under

:-

a) Shri Vimal Vinayak Gupta (PW-1).

"Shri Subhash PA was there with other members of the branch).

b) Shri Sunil Kumar Jha (PW-3):

"Shri V V Gupta, Assistant and PA to the CO were present. I don‟t remember if anybody else was present".

c) Shri H.K. Singh (PW-4) himself was not posted in „JA‟ Branch at the time of alleged incident.

d) Shri Sanjeev Kumar (PW-5):

"S/Shri V V Gupta, Assistant; J P Gupta, UDC; Sunil Kumar Jha, LDC; Subhash Chander, PA and myself were present".

e) Shri Mohan Lal (Addl. PW):

"S/Shri V V Gupta, Assistant; Sanjeev Kumar, LDC/UDC; Sunil Jha; LDC; Subhash Chander, PA to AD/JA; J P Gupta, Assistant"

Thus, none of the other witnesses to the case stated about the presence of Shri Lal Babu Jha (PW-2) at the time of alleged incident on 05.04.2007.

In these circumstances, PW-2 also cannot be a dependable witness and cannot be trusted on the 6 (OA No.060/00737/2016) statements given by him and in fact has falsely deposed and thus his statement ought to be ignored.

It is relevant to submit that PW 2 was not posted in the (JA Branch) under the petitioner and hence, had no occasion to be present at the time of the alleged incident on 05.04.2007.

It is evident that the impugned order passed by the DIB and the appellate authority whereby the reliance has been placed on the aforesaid witness is arbitrary and not sustainable in the eyes of law. It is relevant to mention that the impugned orders dated 11.02.2013, 10.07.2013, 10.07.2015 and 06.06.2016 have been passed without consideration of the statements made by the aforesaid witness in his cross examination and is merely an assertion made by him in his examination in chief. Therefore, the respondents have committed a material irregularity by not considering the statement made by the witnesses in totality and also ignoring the inquiry report (Annexure A-5) on the subject matter.

3. That Shri Sunil Kumar Jha (PW-3) in his statement dated nil (listed in Annexure III of the Charge Memo) stated that the CO frequently abused Shri Mohan Lal using caste based remarks to harass and humiliate Shri Mohan Lal. However, there is no specific mentioned of alleged incident of 05.04.2007.

It has been observed that the PW-3 was transferred from „JA‟ Branch to „J‟ Branch w.e.f. 23.04.2007, whereas Shri Mohan Lal had initially joined duty in „JA‟ Branch on 05.04.2007, then proceeded on leave availing leave, joined duty on September 3, 2007. Thus, the allegation by the PW-3 that the CO (Petitioner) frequently abused and harassed Shri Mohan Lal is not correct, as Shri Mohan Lal was not present in „JA‟ Branch till the PW-3 remained in „JA‟ Branch.

The allegation by the PW-3 that the CO used to threaten Branch Members (including the PW-3) about spoiling their career is baseless so far as PW-3 is concerned, as he never got extract of adverse remarks from the CO.

The PW-3 did not state the actual caste based words allegedly used by the CO against Shri Mohan Lal.

It is relevant to submit that the PW3 was in the JA Branch upto 23.04.2007 whereas Shri Mohan Lal joined the duties on 05.04.2007 and continued to be on leave till September, 2007. The said witness specifically was never present at the time of incident and does not give any statement to the effect that there was any quarrel between the petitioner and the complainant on the said date.

In view of the above it is submitted that Shri Sunil Kumar Jha (PW-3) had actually never witnessed the alleged incident of 05.04.2007.

4. That in his earlier statement dated 09.04.2010 (listed in Annexure III of the charge memo), Shri H.K Singh (PW-4) has stated that Shri R M Gupta used to abuse the Branch Members and threatened to spoil their 7 (OA No.060/00737/2016) ACRs. Further, as per the version of H.K. Singh, the Petitioner used to abuse Shri Mohan Lal whenever he came to the Branch with some official work. Further, the said witness falsely deposed that the petitioner will make him (complainant) learn to do the service, when he will be posted under the petitioner.

Shri H.K. Singh (PW-4) himself has stated that he was not a witness to the alleged incident, as he was transferred out of „JA‟ Branch in July 2006 i.e. prior to the date of alleged incident and narration of facts in his statement. His statement of witness to the alleged incident has, therefore, no relevance.

It is pertinent to mention here that from the statement of H.K. Singh as PW 4 it is crystal clear that all the witnesses in the case had been motivated for their ulterior means to wrongly depose against the petitioner before the inquiry officer. It is a specific case of the petitioner that the witnesses along with complainant have tried to harass the petitioner so that their own work and conduct could not be brought under any supervision. Thus, the statement of the aforesaid witnesses is required to be ignored by any yardstick and to the contrary, departmental proceedings ought to be issued against the witness and the complainant for falsely deposing against the petitioner.

5. That PW-5 Shri Sanjeev Kumar has specifically stated in his cross examination that no objectionable words were used by the petitioner against Shri Mohan Lal on his face. Further, Shri Mohan Lal had argued with the petitioner that his leave was sanctioned, thus the Complainant was going and the petitioner can do whatever he likes‟.

The Statement of the said witness abundantly clarifies that no objectionable words by used by the petitioner against the complainant and the complainant was merely aggrieved on his own assumptions rather than the actual facts relating to the case.

Hence, from the statement of the PW-5 it is evident that he had wrongly deposed against the petitioner and during his cross examination the express admission of not using any objectionable words against the complainant by the petitioner cannot be ignored as the said witness was present on the date of alleged incident as per the version of the complainant. Therefore, the said statement clearly establishes beyond any doubt that the petitioner is not guilty of any misconduct. Thus, the impugned orders dated 11.02.2013, 10.07.2013, 10.07.2015 and 06.06.2016 are wrong and liable to be set aside.

6. That the statement made by the complainant-Mohan Lal (Addl. PW) is nothing but abuse of the process of law as is evident from the fact that in all his initial complaints dated 03.08.2007, 26.04.2008, 25.09.2009 and January 2009 made before the National Commission for Scheduled Caste and also before the 8 (OA No.060/00737/2016) department there was never an allegation of use of caste based remarks against the petitioner. Further, it was only after the transfer of the petitioner from the department in New Delhi to Chandigarh that the allegation of use of caste based remarks was levied upon the petitioner. Further, the complainant had only addressed his grievance with regard to the stoppage of the pay and non-sanction of the leave and both the said charges cannot be levied against the petitioner as the petitioner is not the administrative / sanctioning authority of the decision taken against the complainant. It may be relevant to consider that in the impugned orders passed by the respondent the effect of the earlier complaints made by the complainant and the repeated change in fallacious versions of the complainant cannot be ignored. The respondents have further lost sight of the fact that at the time when the alleged discrimination took place, the IB department had conducted the inquiry and specifically held that the petitioner is not guilty of any such misconduct and the same is evident from the perusal of the memorandum dated 26.10.2007 and 08.02.2008 (Annexure A-22 to A-28). It is relevant to mention that vide orders dated 11.08.2009 and 26.04.2010 National Commission for Scheduled Castes had recorded a categorical finding that the allegations made by the complainant have nothing to do with the Caste based remarks but is an administrative decision.

According to the complainant, the CO never used caste based remarks in his presence but Shri H.K Singh used to tell him about this. This version of complainant does not appear to be correct as Shri H K Singh was transferred out of „JA‟ branch on 20.07.2006 and complainant was posted in „JA‟ Branch under the CO only on 05.04.2007 i.e. about 8 months after Shri H K Singh had left the JA Branch on his transfer.

The complainant stated that he could not report about the incident of 05.04.2007, to DD/JK or JD/J as they were not in the office at that time. However, Shri Binyanand Jha, IPS (Joint Director/J), who appeared as DW-1, stated during his examination that he was there in the office on 05.04.2007 and the complainant did not come to him or to his PA to report the matter. During cross examination, the complainant has stated that after joining duty and submission of his departure report (05.04.2007), he had gone to AD‟s office for some work. This creates doubt that Shri Mohan Lal had actually visited the office of JD/J (DW-1).

According to the complainant, he had submitted 4-5 applications / complaints to NCSC who after seeking the comments of IB conveyed to him that his complaints were baseless. This indicates that the issue has already been examined separately and the allegation levelled by the complainant against the CO were found baseless by the department itself.

While giving the names of his witnesses in his application dated 25.09.2009, the complainant stated 9 (OA No.060/00737/2016) that they were present during utterances towards the reserved category officials. This indicates that the witnesses mentioned by the complainant were not specifically for him but are indicated for the reserved category officials.

The complainant has stated in his application dated 25.09.2009 that three officials of „JA‟ Branch availed leave (EL/HPL) without issuance of leave sanction order by the Service Book Section while in his case deduction of pay was made in April, 2007, which is an another instance of caste based harassment. In this connection, when it was ascertained from him, (Shri Mohan Lal) whether he knew that grant of extension of earned leave for the period from 28.04.2007 to 19.05.2007 was not recommended in his case by the controlling / leave sanctioning authority and the petitioner was not responsible for it being not empowered to sanction or refuse Earned Leave (EL), the complainant stated that he was not aware about the competence / authority of SO/JA regarding sanction of any kind of leave other than casual leave. As the petitioner was not competent to recommend / sanction earned leave, the allegation of „another instance of harassment‟ against the petitioner by the complainant is incorrect and misleading.

7. That it is relevant to submit that the complainant was himself unwilling and abstaining employee, therefore, to justify his own misconduct he had raised false and frivolous pleas against the petitioner. It is respectfully submitted that from the perusal of the statements of the witnesses produced by the complainant it is evident that they had decided to form a group together to victimise the petitioner, once the petitioner had been transferred out of their Delhi office for their personal motive. The fallaciousness disclosed by the version / cross examination of Shri H. K. Singh, who had been transferred out of the branch on 20.07.2006 i.e. almost 9 months prior to the alleged incident, which is further in contradiction of the fact that the source of information of use of caste based remarks against the complainant is H. K. Singh as per the version of the complainant, Mohan Lal. Such a contradiction leaves no matter of doubt that the entire story has been carved out merely on presumption and after the dismissal of complaints filed by the complainant before the National Commission for Scheduled Castes and the IB Department.

Further, as per the version of Sanjeev Kumar, no adverse remarks had been made by the petitioner on the face of the complainant and as per the version of the complainant, the adverse remarks had been directly communicated to him. Without losing sight of the fact that the interaction between complainant and the petitioner was only limited to submission of joining report and his departure report for about 15 minutes on 05.04.2007 and there has been no averment regarding any such untoward incident in the complaint dated 03.08.2007 and 25.09.2009.

(OA No.060/00737/2016) Therefore, the said allegations are nothing but a carefully crafted conspiracy against the petitioner.

Therefore, on perusal of the pleadings and the material evidence on record, it is abundantly clear that the dispute relates to non - sanctioning of leave, stoppage of salary and proposed disciplinary action against Mohan Lal (Complainant) and had nothing to do with the derogatory remarks against the complainant. The entire complaint and inquiry against the petitioner is mere pressure tactic against the petitioner and the superiors in the department so that the work and conduct of the complainant and other junior functionaries cannot be brought under any administrative action. That the complainant under the garb of false complaints against the petitioner, got regularized his leave period and the order of stoppage of pay was recalled by the department.

8. That the respondents have failed to consider that the Defence Witness, Shri Binyanand Jha, IPS (DW-1), then functioning as Deputy Director / J who was the senior functionary of the office, specifically made a statement that the petitioner had no role in treating the period of absence of Shri Mohan Lal as unauthorized and dies-non. The senior functionary further stated and submitted that there was no occasion for the petitioner to use any derogatory remarks against the complainant on the very day of his joining / against the new entrant in the branch.

9. That the learned authorities below have failed to consider that the petitioner has at no stage recorded any adverse remarks against the complainant or any other person in the ACR and hence, it clearly reflects that the petitioner had no ill intention against the work and conduct of his subordinates. It is material to consider that had the petitioner got an ulterior motive to harass the complainant or any other subordinate, he would have recorded adverse remarks in the ACR but by not doing so reflects that petitioner was only discharging the duties vested in him. Since in discharge of his duties the complainant became an affected person due to stoppage of pay and non- sanction of leave by the higher authorities, he decided to victimize the petitioner so that no action is taken against his work and non performance of duties and he cannot create pressure to recall the adverse orders passed against him by the Department.

10. That it is relevant to submit that once the finding of the National Commission for Scheduled Castes and the IB Department have became final and the petitioner already stood transferred from New Delhi to Chandigarh in June, 2008, there was no occasion to initiate Departmental inquiry on the same subject matter, that too, in contravention of the orders and memorandum Annexures A-22 to A-28 passed by the Department. Therefore, the initiation of the Departmental inquiry on the said issue against the petitioner is not sustainable in the eyes of law.

(OA No.060/00737/2016)

11. That the DIB has committed a material error in judgement dated 10.07.2013 by only considering the essence of the statements made in examination and not considering the cross-examination of the witnesses in entirely and hence, mislead itself into the frivolous story concocted by the complainant. Further, the orders dated 11.02.2013, 10.07.2013, 10.07.2015 and 06.06.2016 loses sight of the inseparable facts that the earlier complaint filed by the complainant before the National Commission for Scheduled Cates as well as the department have already been found to be false and in correct. The said impugned order further fails to take the cognizance of the version raised and proved by the petitioner to the effect that the dispute was nothing but an initiation of administrative / disciplinary action against the complainant by the department. Therefore, by permitting the complainant and the witnesses to abuse the process of administration on the basis of false statements is a step forward the decimate the administrative supervision over the work and conduct of the junior functionaries in the department.

12. That the impugned orders dated 11.02.2013, 10.07.2013, 10.07.2015 and 06.06.2016 are non- speaking orders and do not record the specific reasons of ignoring the detailed inquiry report submitted by the Enquiry Officer. Further, once a detailed fact finding report has been submitted then the appropriate authority is bound to consider the fact findings and the conclusions recorded in the Report before passing the impugned order. Hence, in the absence of the consideration to the aforementioned facts, the impugned orders are liable to be set aside on this ground.

13. That the impugned orders dated 06.06.2016 and 11.02.2013 are non-speaking orders with regard to the subject matter of dispute and hence, are liable to be set aside on this ground alone.

14. That the impugned orders have failed to consider that the article of charge/ charge sheet against the petitioner is beyond the scope of the complaint dated 03.08.2007 and 25.09.2009 submited by the complainant. It is relevant to mention here that the allegations which were general in nature directed towards the imposition of the administrative decisions against the complainant has been transformed into an inquiry for personal remarks / vendetta between the petitioner and the complainant without any substance or material evidence on record. Thus, the charge sheet prepared is not sustainable in the eyes of law and is liable to be quashed. It is relevant to submit that the impugned order dated 06.06.2016 and 10.07.2013 contradict each other to the extent of scope of the charge sheet against the petitioner. From the perusal of the impugned order dated 06.06.2016 it is evident that the petitioner is being penalized for allegedly using derogatory language against the SC community in general, whereas, the impugned order dated 10.07.2013 proceeds on the basis of a specific incident that took place on 05.04.2007. Therefore, the 12 (OA No.060/00737/2016) Disciplinary Authority, without applying its mind to the entire facts and circumstances and to the scope of charge sheet, has wrongly passed the order of penalty against the petitioner and the Appellate Authority without going through the record, documents, Inquiry Report and other evidence and only relying upon the wrong order passed by the Disciplinary Authority, dismissed the appeal filed by the petitioner by a non- speaking order which is perverse and arbitrary to the settled principles of law.

15. That from the material evidence on record, it is abundantly clear that the impugned orders have been passed merely on assumptions. It is well settled principle of law that a fact required to be legally proved cannot be presumed unless the law specifically provides for a presumption. Hence, keeping in view the service record of the petitioner and the totally of the fallacious and the changing versions of the nature of complaint and further contradictory nature of charges and suspicious trial, the order imposing penalty on the petitioner is illegal and arbitrary and thus, is liable to be set aside on this ground alone.

16. That from the perusal of the detailed submissions / representations made by the petitioner, it is abundantly clear that he is not guilty of the charges against him.

17. That from the perusal of the fact of the case and material evidence on record, it is abundantly clear that the petitioner has been wrongly penalized and thus, the orders are liable to be quashed. Further, by any yardstick depending in view of the circumstances of the case and the career record of the petitioner, the punishment awarded is highly excessive and harsh as the same has resulted in a situation that his juniors have been promoted and now, he has to report to his subordinates. The integrity, work and conduct of the petitioner is highly appreciated by his seniors in the department and has also been highlighted in the statement of the senior officers who preferred to appear as Defence Witnesses. It is respectfully submitted that the impugned order dated 11.02.2013 was passed when the petitioner was on the verge of promotion and hence due to the passing of the said order the promotion of the petitioner has been stopped and consequently the person junior to the petitioner of whom the petitioner was a supervisor and used to write ACRs have gained two promotions and the petitioner has to now report to them for work. Therefore, the petitioner is being punished multiple times for the same offence not committed by him and the same is not permissible in the eyes of law. The principle of double jeopardy are fully applicable in the facts and circumstances of the present case and the petitioner ought to be given the benefit as he has been made to suffer disproportionately in the subject matter.

(OA No.060/00737/2016)

6. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the applicant claims that the impugned orders are arbitrary, illegal and without jurisdiction.

On the strength of the aforesaid grounds, the applicant seeks quashing of the impugned orders, in the manner, indicated hereinabove.

7. On the contrary, the respondents have refuted the claim of the applicant and filed the written statement, wherein it was pleaded that the charge against the applicant was aptly proved by the DA, which was upheld by the AA. According to the respondents that the complainant Mohan Lal (Respondent N.3) joined JA Branch on April 5, 2007 and proceeded on leave from 9.4.2007. The applicant sent letters dated 9.7.2007 and 27.4.2007, asking him to join duties and his pay was also stopped. The complainant was stated to have submitted many representations to the different authorities and National Commission for Scheduled Castes and Scheduled Tribes (for short "Commission"), alleging therein caste based harassment by the applicant. His comments were taken and were sent to the Commission, vide letter dated June 8, 2008. However, the allegations of Mohan Lal (complainant) could not be substantiated. Thereafter, the complainant was transferred from Unit concerned to another unit, on his own request.

8. The case set up by the respondents, in brief, in so far as relevant is that thereafter complainant Mohan Lal sent a complaint dated 25.9.2009 (Annexure A-15). After preliminary enquiry, the applicant was issued memo dated 10.3.2011 under 14 (OA No.060/00737/2016) rule 16 of the CCS Rules, for conducting the disciplinary enquiry on the charge that during his stay at Delhi from April, 2007 to February, 2008, he had harassed the complainant Mohan Lal. The applicant submitted statement of defence denying the charge and pleaded that he was being targeted by Mohan Lal, under a wrong impression that he had recommended his absence period from April 28, 2007 to May 19, 2007, as dies non. Thus, he has made a false complaint. It was duly acknowledged that IO has held, vide report dated 20.9.2012 (Annexure A-5), that the charge against the applicant was not proved. The DA recorded the impugned disagreement note and served copy thereof with enquiry report to which the applicant filed a reply. Taking into consideration the material on record, ultimately the DA has rightly imposed the above mentioned penalty, on the applicant, vide impugned order 9/10.7.2013 (Annexure A-4), and it was upheld by the impugned order dated 3/6.6.2016 (Annexure A-1), by the AA.

Instead of reproducing the contents of the reply in toto, and in order to avoid repetition of facts, suffice it to say that while virtually acknowledging the factual matrix and reiterating the validity of the impugned orders, the respondents have stoutly denied all other allegations and grounds contained in the OA, and prayed for its dismissal.

9. Controverting the pleadings in reply filed by the respondents, and reiterating the grounds contained in the OA, the applicant has filed the replication. That is how, we are seized of the matter.

(OA No.060/00737/2016)

10. Having heard the learned counsel for the parties at quite some length, having gone through the record with their valuable help and after considering the entire matter, we are of the firm view that the instant OA deserves to be accepted, in the manner, and for the reasons mentioned herein below.

11. Ex-facie, the argument of the learned counsel for the applicant that there is inherent variation in the complaint, Annexure A-15, which forms the basis of allegation, and actual impugned charge-sheet, served upon the applicant, has considerable force.

12. On the other end, the main contention of the learned counsel for the respondents that since the charge framed against the applicant has duly been proved by the reliable evidence, so he was rightly punished by the relevant authorities, is not only devoid of merit but mis-conceived as well.

13. As is evident from the record that the only charge framed against the applicant is that while he was posted as SO at Headquarters, New Delhi, during the period w.e.f. April, 2007 to February, 2008, he had harassed subordinate Mohan Lal (Respondent No.3, by passing caste based remarks against him, in the presence of staff members of his branch. Respondent No.3 was stated to have moved a complaint dated 25.9.2009 (Annexure A-15), which forms the basis of the charge sheet against the applicant, which (complaint) reads as under :-

"Sub : Calling of office memo. No. 26/JA/2008(15)-42 dated Jan. 14, 2009 for justice in case of Shri Mohan Lal, JIO-I. Sir, I was granted E.L. w.e.f. April 9 to 27, 2007 and due to urgent domestic circumstances I had applied for extension of leave w.e.f. April 30 to May 25, 2007. But on April 27, 2007, I was informed that since 16 (OA No.060/00737/2016) leave sanctioning order for my earlier application was not issued by the office, the whole leave would be treated as unauthorized absence with no salary. Consequently my salary for that period was also deducted which resulted in financial hardships for me.

Sir, this is a clear example of caste based harassment towards me as the Section Officer, JA granted leave to three branch members whose details are given below without issuance of leave sanction order.

Sl. No. Name, Rank, & PIS No. Kind and span of leave Remarks S/Sh

1. J.P. Gupta, Asistant,115200 HPL 26.12.2007 Orders sanctioning To 28.12.2007 Leave awaited.

2. Rajinder Singh Negi, UDC, HPL 26.11.2007 to Orders sanctioning 103996 20.12.2007 Leave awaited.

3. Subhash Chander, PA, EL 7.1.2008 to Orders 106764 11.1.2008 sanctioning leave Awaited It is requested that the aforesaid office memo may please be called as a proof of atrocity on the basis of caste based harassment".

14. Thus, a perusal of the complaint would reveal that there is not an iota of allegation, with regard to the passing of the caste based remarks against the complainant, by the applicant. The contents of the charge are totally contrary to the allegation contained in the complaint. The main grievance of the complainant, appears to be non sanctioning of his leave application, by the applicant. It has been specifically pleaded in para 5 of the written statement by the respondents that the complainant joined the JA Branch under the applicant only on April 5, 2007 and proceeded on leave from April 9, 2007. He finally joined his duties on September 3, 2007. Not only that, it was duly acknowledged that the complainant Mohan Lal submitted representations on 1.10.2007 and 26.11.2007, to the Commission, alleging therein caste based harassment by the applicant. Having obtained the comments from the Deputy Director/J, a reply dated 8.1.2008, was sent to the Commission. However, these allegations of caste based 17 (OA No.060/00737/2016) harassment, could not be substantiated there. Thereafter, he was transferred from that Unit to some other Unit. Perhaps that is the reason that the IO has duly examined the relevant evidence and matter in right perspective and came to the definite conclusion that the charge alleged against the applicant was not proved, vide his report dated 20.9.2012 (Annexure A-5).

15. Such being the position on record, now the short and significant question, though important, arises for our consideration in this case is as to whether there is legal evidence to substantiate the contradictory impugned charge sheet & impugned disagreement note, in the given facts and circumstances of this case or not?

16. Having regard to the rival contentions of the learned counsel for the parties, to our mind, the answer must obviously be in the negative, in this regard.

17. As indicated hereinabove, the applicant was specifically charged for passing caste based remarks against the complainant Mohan Lal (Respondent No.3) between April 27, 2007 to February, 2008. In an unsuccessful attempt to substantiate the charge, against the applicant, the star/ main witnesses of the department was complainant Mohan Lal (Respondent No.3). He did not support the specific allegations contained in the impugned charge-sheet, while appearing before the IO on 27.3.2012. It has been specifically recorded in the Inquiry report that when IO asked complainant Mohan Lal, whether he wanted to give any statement during the hearing, he has stated that he has already given his statement on 18 (OA No.060/00737/2016) September 25, 2009 (Annexure A-15), which may be taken on record. He did not disclose (intimate) the day, time and venue of the alleged incidence. Rather, he has admitted that applicant never made such remarks in his presence. During the course of examination complainant Mohan Lal, was questioned, as to how he could know about the caste based remarks against him, as these were never passed in his presence, then he stated that PW-4 used to tell about it and only he could tell as he used to tell him before 5.4.2007 (which is not even subject matter of the charge sheet). As regards evidence of PW-3 and PW-4, no doubt they have vaguely stated (without any specific date, time and particulars), that the applicant used to pass castiest remarks against the Respondent No.3 (complainant) and he also used to abuse and threaten to spoil their ACRs. But no implicit reliance can be placed on oral evidence of the Department, being heir-

say.

18. Possibly, no one can dispute that standard of proof in a domestic enquiry is not that heavy as is required to prove in criminal proceedings, but at the same time, in domestic enquiry, charge should be proved by preponderance of probability of legal evidence, which is totally lacking in this case.

As mentioned hereinabove, that even the main witness complainant Mohan Lal did not utter a single word during the course of the enquiry that the applicant has ever passed castiest remarks against him. He has reiterated the allegations contained in his complaint, Annexure A-15, in which, the complainant has mainly demonstrated his grievance therein, 19 (OA No.060/00737/2016) that the applicant did not recommend his leave and asked him to join his duties, and nothing more. The complainant, neither himself uttered a single word, of pointed castiest remarks before the IO, nor mentioned in his complaint, Annexure A-15. The oral evidence of PW-3 and PW-4, with regard to the passing of the caste remarks against Mohan Lal (Respondent No.3) are hear-

say and not, at all, admissible in evidence as contemplated in sections 59 and 60 of the Indian Evidence Act, which postulates that all facts, except the contents of the documents, may be proved by oral evidence and oral evidence, must in all cases, shall be direct. Therefore, no legal direct evidence of passing castiest remarks, against the applicant, is forthcoming, on record. Rather, the allegation in the complaint are totally contrary to the contents of the impugned charge-sheet. Hence, no implicit reliance can be placed on the oral evidence of the department, being hear-say, in this relevant connection. That was the reason that the IO has rightly concluded that the charge framed against the applicant is not proved on record.

Moreover, DA has not recorded cogent reasons, in this regard, while recording impugned disagreement note. Even the AA has relied upon the representation of the complainant of Aril 10, 2008, October 14, 2008, January 5, 2009 and April 13, 2009, made by him to the Commission, which were neither relevant or formed part of the impugned charge sheet. In other words, even AA has relied upon the foreign material to reject his appeal, which is not legally permissible.

(OA No.060/00737/2016)

19. Therefore, it is held that the inadmissible hear-say evidence, brought on record, by the Department before the IO, is totally falls short of, as is legally required, to prove the charge in a domestic enquiry. The IO has rightly concluded that the charge against the applicant was not proved. On the other end, the DA has slipped into deep legal error, in recording the impugned dis-agreement note, on the basis of the indicated inadmissible evidence, which cannot legally be sustained. The same very mistake was repeated by the AA as well.

20. There is yet another aspect of the matter, which can be viewed entirely from a different angle. As mentioned hereinabove, the complainant has based his case on the basis of complaint, Annexure A-15, that the applicant did not recommend his leave and has asked him to join his duties.

There is not even a whisper in it that the applicant has ever passed any castiest remarks against him, for which the applicant was charge sheeted. The allegation of charge sheet is as vague, as anything. It will not be out of place to mention here that the alleged occurrence is stated to be between April, 2007 to February, 2008, whereas the impugned charge-sheet was belatedly served on the applicant on 7.7.2011 (Annexure A-19), after a lapse of four years, without any cogent explanation.

Even if, the applicant did not recommend, his leave application and asked the complainant to join his (applicant‟s) duties, in discharge of his official duties, indeed cannot possibly be termed to be a misconduct, warranting a departmental enquiry.

If such officers, duly performing their duties, in their official 21 (OA No.060/00737/2016) capacity, are punished, in this manner, then there will be no end to it and it will hamper their functioning as a public servant.

21. As illogical as it may appear, but strictly and truly speaking, the tendency and frequency of appropriate authority, including the Government to initiate departmental enquiry, and in a very casual manner, without proper examination of the matter, unmindful of the serious consequences against such persons, who have acted bonafidely, in exercise of their statutory, quasi judicial jurisdiction and decision making power (authority), have been tremendously increasing day by day to deter such public servants to take independent decisions. The case in hand is a burning example of such like cases and this would not be in the interest of the service.

22. Possibly, no one can dispute, that a negative and indecisive attitude is developing among the Government officials primarily for the reason that any decision taken, which might have been taken in good faith or favourably interpreting rules benefiting even a deserving person may become subject matter of disciplinary action against them. Indeed, in case such government servants are to be tried departmentally for bona fide actions taken by them, in exercise of their official duty, and decision making powers, which may have absolutely no undertones or overtones of delinquency, the situation as prevails today is bound to aggravate in future. If such officers are allowed to proceed departmentally, then there would be no end to it and such officers would be subjected to harassment unabated. It will naturally 22 (OA No.060/00737/2016) inculcate and perpetuate injustice adversely affecting their service career. At the same time, it would cause irreparable damage to our democratic polity as well.

23. Moreover, it now well settled principle of law that departmental enquiry can only be initiated against a Government employee, if there is some element of delinquency or gross negligence attached to his misconduct. His bonafide action in discharge of official duties, with no element of unlawful, willful, improper or wrong behavior, misdemeanour, misdeed, impropriety or a forbidden act, not carrying the duty efficiently, ipso facto, would not constitute any grave misconduct warranting any punishment to be imposed against departmental proceedings against him.

24. Therefore, thus, see from any angle, we have no hesitation in holding, not only that it is a case of no legal evidence, but at the same time, the allegation, levelled in the delayed impugned charge-sheet, Annexure A-19, is not at all proved, warranting imposition of any punishment upon him.

25. Therefore, in view of the material/evidence, as discussed herein above, it is held that the impugned Memorandum/Article of Charge dated 7.7.2011 (Annexure A-19), UPSC advice dated 17.9.2014 (Annexure A-2), dis-agreement note dated 11.2.2013 (Annexure A-3), penalty order dated 9/10th July, 2013 (Annexure A-4) and Appellate Order dated 3/6.6.2016 (Annexure A-1), cannot legally be sustained and they deserve to be quashed and, in the obtaining circumstances of the case.

26. No other point, worth consideration, is either urged or pressed by the learned counsel for the parties.

(OA No.060/00737/2016)

27. In the light of the aforesaid prismatic reasons, the OA is hereby allowed. The impugned charge-sheet dated 7.7.2011 (Annexure A-19), UPSC advice dated 17.9.2014 (Annexure A-2), dis-agreement note dated 11.2.2013 (Annexure A-3), penalty order dated 9/10th July, 2013 (Annexure A-4) and Appellate Order dated 3/6.6.2016 (Annexure A-1) are hereby set aside.

However, the parties are left to bear their own costs.

(P. GOPINATH)                        (JUSTICE M.S. SULLAR)
 MEMBER (A)                              MEMBER (J)

                                              Dated: 20.11.2017


HC*

Unlock Advanced Research with PRISMAI

Central Administrative Tribunal - Chandigarh