Central Administrative Tribunal - Delhi
Ms. Deepti Sinha vs Union Of India on 7 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI RA NO.409/2011 and OA NO.2728/2009 Order Reserved on : 27.02.2012 Order Pronounced on : 07.03.2012 HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Ms. Deepti Sinha W/o Sh. R.R. Sinha R/o Flat No.252, Sunview Apartment, Plot No.10-B, Sector-0, Dwarka, New Delhi-110075. Applicant (By Advocate: Shri Rajiv Bakshi) VERSUS 1. Union of India Through Secretary, Ministry of Defence South Block, New Delhi. 2. Controller General of Defence Accounts West Block, R.K. Puram, New Delhi. 3. Sh. Virender Diwan Controller of Defence Accounts (AF) West Block, R.K. Puram, New Delhi. Respondents (By Advocate: Shri Ashish Nischal) ORDER DR. RAMESH CHANDRA PANDA, MEMBER (A):
RA No.409/2011 Pursuant to the following orders of the Honble High Court of Delhi in Writ Petition (C) No.7848/2011 in the matter of Deepti Sinha Versus Union of India and Others decided on 04.11.2011, the applicant has moved the present Review Appliation:
It is contended by Mr. Shankar Raju, learned counsel for the petitioner that even when charge-sheet was issued to the petitioner under Rule 16 of the CCS (CCA) Rules for minor penalty proceedings, the petitioner had requested the disciplinary authority to hold a regular enquiry and give her an opportunity which was not acceded to by the disciplinary authority. Mr. Raju further contends that this plea was specifically taken in the OA but has not been dealt with appropriately. We find from the impugned order that no such plea of the petitioner is recorded or dealt with. If the petitioner had made the aforesaid submission and it is not dealt with, it is for the petitioner to move the Tribunal by filing appropriate review application. Giving the aforesaid liberty, the writ petition is disposed of. We may record that we have not made any observations on the merits of such a plea. At the same time, we feel that if the petitioner moves application for review within 15 days, the same shall be considered by the learned Tribunal on its own merit without going into the question of limitation.
2. We heard Shri Rajiv Bakshi learned counsel for the review applicant and Shri Ashish Nischal for the review respondents.
3. In the RA, the principal ground raised relates to the issue that the review applicant has requested the Disciplinary Authority to hold a regular enquiry and also grant her an opportunity to defend herself in the inquiry but her request was not decided by the Disciplinary Authority before imposing the minor penalty of reduction of pay by two stages from Rs.12660 to Rs.12160 in the time scale of Pay Band (Rs.9300-34800) and Grade Pay of Rs.4200 for a period of two years with effect from 25.02.2009 without cumulative effect and not adversely affecting her pension. Shri Bakshi would submit that though the issue was raised in the OA but no decision was given by the Tribunal while deciding the OA on 26.08.2011. He argues that this error in the judgment needs correction by recalling the order in the OA and urges to render justice in deciding the above mentioned issue, as the disciplinary proceeding has been vitiated by not deciding the delinquent officers request for inquiry.
4. The respondents were issued notice in respect of the RA on 09.12.2011 and on 01.02.2012 they were directed to place relevant records for out perusal to find out whether the review applicants request for holding the inquiry even though in minor penalty proceedings was considered by the concerned authority or not, if so, in what manner. On final hearing date the learned counsel for the respondnets presented the File No.AN/1/37/Disp/DS of the officer of the Controller of Defence Accounts (AF).
5. We have carefully examined the pleadings in the OA and our order dated 26.08.2011. It is noticed that the said ground has been raised by her in the OA, and the said legal infirmity has been recognized by us in Para 6 of the order. Further, we note that no finding on the said contention has been given in the order. To this extent, there is apparent error in the order passed on 26.08.2011 in the OA No.2728/2009. We, therefore, recall the aforesaid order for fresh consideration.
OA No.2728/20096. With the consent of the counsel for the parties, we heard them on the afore mentioned principal issue of non consideration of the applicants plea by the Disciplinary Authority to hold a regular enquiry and to give her an opportunity to defend herself in the inquiry.
7. As the facts and other contentions have been considered in the order dated 26.08.2011, we may, briefly mention the relevant facts which may be necessary to determine the above issue.
8. Learned counsel for the applicant contends that she in her representation has requested the Disciplinary Authority to conduct regular enquiry where she will demonstrate that she is innocent and does not even deserve any penalty. He drew our attention to the Rule 16 of the CCS (CCA) Rules to submit that the respondents are bound to hold a departmental enquiry as she has denied the charges in toto and the Disciplinary Authority having not formed an opinion after due application of mind as to whether there is any necessity to conduct an enquiry, the Disciplinary Proceeding has been vitiated. He placed his reliance on the judgment of Honble High Court of Madhya Pradesh at Jabalpur in the matters of Subhash Chandra Versus Union of India and Others (WP No.211/2005 decided on 29.9.2006) and the judgment of Honble Apex Court in case of FCI Versus A.P. Rao (2001-1-SCC-165).
9. Shri Nischal appearing on behalf of the respondents would contend that the Competent Authority had taken into account the applicants request for the enquiry and decided to impose the minor penalty. His contention is that there is no infirmity in the disciplinary proceeding. He referred to Page 126 of the file placed before us to say that the Disciplinary Authority had considered the issue of enquiry on 21.11.2008 and thereafter passed the impugned Order in imposing the minor penalty. He, therefore, submits that the OA deserves to be dismissed.
10. In order to appreciate the issue, we may refer to the Rule 16 and the Government of India instruction on the controversy. Rule 16 of the CCS (CCA) Rules envisages the following:-
16. Procedure for imposing minor penalties:
Subject to the provisions of sub-rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of Rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposed to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or misbehaviour; and
(e) consulting the Commission where such consultation is necessary. Further the Government of India has issued instructions dated 28.10.1985 which has clarified the matter and provided guidance to the Disciplinary Authorities. We refer to the relevant part of the OM dated 28.10.1985 which reads as follows:
(1) Holding of inquiry when requested by the delinquent:
Instructions-
The Staff side of the Committee of the National Council (JCM) set up to consider revision of C.C.S. (C.C.A.) Rules, 1965 had suggested that Rule 16(1) should be amended so as to provide for holding an inquiry even for imposition of minor penalty, if the accused employee requested for such an inquiry.
2. The above suggestion has been given a detailed consideration. Rule 16(1-A) of the C.C.S. (C.C.A.) Rules, 1965 provides for the holding of an inquiry even when a; minor penalty is to be imposed. Rule 16(1) ibid, leaves it to the discretion of disciplinary authority to decide whether an inquiry should be held or not. The implication of this rule is that on receipt of representation of Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In a case where a delinquent Government servant has asked for inspection of certain documents and cross-examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that an inquiry is not mandatory. If the records indicate that not-withstanding the points urged by the Government servant, the disciplinary authority could after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice.
11. A perusal fo the statutory Rule 16 and the instruction dated 28.10.1995, we note that the Disciplinary Authority has been mandated to form an opinion on the representation so received from the delinquent employee as to whether an inquiry is necessary or not and if he decides against an inquiry he is duty bound to say so in writing with appropriate reasons and convey to the delinquent employee. In the backdrop of the above mandatory provision we examined the issue in the instant case.
12. In the present case, Shri K.N. Bhat, the then GO (Administrations) the 4th respondent was the Disciplinary Authority. At Page 126 of the relevant file, the request to hold an inquiry has been brought to the notice of the Disciplinary Authority through a note initiated by his subordinate employees. He has seen the note on 21.11.2008 but has not passed any order. It is appropriate to reproduce the same which reads as follows:
OFFICE NOTE No.AN/I/37/Disp./DS Dated: 19.11.2008 PUC is LAO (AF), Race Course, New Delhi confidential letter No.AF/GEN/DIS/DS dated 11.11.2008, which is a point wise explanation on the reply furnished by Smt. Deepti Sinha, Sr. Auditor, A/c No.8334282, to her Charge Sheet for Minor Penalty dated 18.09.2008. The same is placed below for perusal.
As per clause (b) of sub-rule (1) of Rule 16 of CCS (CCA) Rules, 1964 (Procedure for imposing Minor Penalties), the disciplinary authority can hold an inquiry it is of the opinion that such inquiry is necessary.
Otherwise, the disciplinary authority can impose any of the Minor Penalty after taking the representation of the charged official into consideration and recording a finding on each imputation of misconduct or misbehaviour, as per clause (c ) & (d) of the ibid rule.
Submitted for perusal and further orders, please.
Sd/-
AAO Charge sheet dt. 18.9.08 is at F/A. Reply dt. 10/10/08 of the individual is at F/B Parawise comments dt. 11/11/08 of CDOAF thereon is at PUC May like to consider holding of inquiry or otherwise before imposing minor penalty if any.
Submitted pl.
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SAO (Admn) Sd/-
GOM (Admn.)
13. A very careful and close scrutiny of the file and more specifically the above noting we put a query to the learned counsel to know what opinion has been taken and when the same has been communicated to the applicant by the Disciplinary Authority. He drew blank. We could not be shown the nature of decision taken by the Disciplinary Authority. It is noticed that he has not taken conscious decision as to why the enquiry is not necessary and for what reasons. Hence, the disciplinary proceeding has been vitiated at this stage of the legal infirmity.
14. In consideration of the totality of facts and circumstances of the case and taking note of the mandatory provision in the CCS (CCA) Rules, the illegality has crept in the disciplinary proceeding at the stage indicated above for which the impugned orders dated 25.02.2009, 01.04.2009, 05.05.2009 and 16.07.2009 are liable to be quashed and set aside. We order accordingly. However, the case is remanded back to the Disciplinary Authority to decide the applicants representation to hold an enquiry in the first instance and proceed further in the case in accordance with law. As the penalty orders have been quashed, the applicant will be entitled to all consequential benefits.
15. In the result, the Original Application having some merits as discussed above, is partly allowed in terms of our above orders and directions. The competent authority is directed to complete the exercise as ordained above as expeditiously as possible and positively within three months from the date of receipt of a certified copy of this order. No costs.
(DR. RAMESH CHANDRA PANDA) (V.K. BALI)
MEMBER (A) CHAIRMAN
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