Central Administrative Tribunal - Delhi
Rama Shankar Mishra S/O Shri Raj Mangal ... vs Union Of India (Uoi), Through ... on 22 September, 2006
ORDER Shanker Raju, Member (J)
1. Applicant, a substantive member of Indian Forest Service (IFS) U.P. Cadre is of 1986 batch. By virtue of this OA he has assailed order of suspension dated 10.10.2005 with further orders, reviewing the suspension dated 17.3.2006 as well as memorandum of charges issued under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969 (for short '1969 Rules') As a consequence thereof, grant of Junior Administrative Grade (JAG) with retrospective promotion with salary for the period has been sought.
2. By way of interim relief, applicant has prayed for grant of benefits which have been accrued to his juniors following a review Departmental Promotion Committee (DPC) on the direction of the Tribunal in Kamal Kishore and Anr. v. Union of India and Ors. (OA-324/2005) decided on 23.3.2005.
3. MA No. 950/2006 filed by applicant was in respect of implementation of the recommendations of the DPC kept in a sealed cover. An order passed on 29.3.2006 by the Tribunal directed provisional consideration of applicant for promotion without prejudice to continuance of disciplinary proceedings. Accordingly, claim of applicant though considered provisionally in DPC but has been placed under sealed cover due to pendency of the disciplinary proceedings as well as his suspension.
4. A brief factual matrix transpires that since 1996 this case has a chequered history of litigation relating to induction of State Forest Officers to IFS, UP Cadre. In OA-982/1996, an order passed by the Allahabad Bench of this Tribunal on 10.09.1997 quashed the entire select list and the review selection was ordered for preparation of year-wise select lists. The year-wise select lists were drawn only after the aforesaid judgment of the Allahabad Bench dated 10.9.1997 attained finality by the judgment of the Hon'ble High Court, Allahabad dated 11.5.2001 in Civil Misc. Writ Petition No. 2663 of 1998 and other connected Writ Petitions. On 10.9.2004, the year-wise select lists were ultimately drawn and notified by the Government of India vide notification dated 10.9.2004, which on non-implementation gave rise to OA-324/2005, which was disposed of on 23.3.2005 with a direction to respondents to implement the year-wise select lists.
5. In compliance of the aforesaid decision select list officers were appointed to IFS, UP cadre vide notification dated 8.7.2006 on a review DPC held on 15.3.2006. A complaint made by the District Magistrate to the Division, which on enquiry was forwarded to Government of U.P. on 17.9.2005 and on 10.10.2005 applicant was placed under suspension on a contemplated disciplinary proceedings, which is still continuing on review from time to time.
6. On 17.11.2005, charge sheet was issued to the applicant under Rule 8 of 1969 Rules and on the ground that illegal falling of trees was reported from his area.
7. Learned Counsel for applicant Shri A.R. Masoodi challenged the suspension as well as disciplinary proceedings and by relying upon the 1969 Rules contended that under Rule 3 of the 1969 Rules, it is only after the articles of charge have been drawn up and with regard to the nature of the charges of substantive absence would be placed under suspension, which would be followed in 90 days and thereafter 180 days in all, as such after 270 days of the suspension, the same loses its sanctity and is to be null and void and would not be continued further. Proviso to Rule 3 of 1969 Rules has been relied upon to state that on expiry of period of 90 days from the date a member of service has been suspended and disciplinary proceedings are to be initiated, failing which the suspension would be nullity in law.
8. Learned Counsel would contend that Rule 3 (7) (c) of 1969 Rules has provided that though the suspension order is remained in force unless modified but on continuation, reasons are to be recorded, which has not been done in the present case.
9. By relying upon Rule 3 (8) (a) & (b) of 1969 Rules, which has been added by GSR 130 dated 13.7.1998, it is stated the order of suspension shall be valid for a period not exceeding 90 days and an order of suspension, which has been extended, shall remain valid for a further period not exceeding 180 days at a time, unless revoked earlier.
10. Another leg of argument regarding suspension is that under Rule 8 (6) (a) of 1969 Rules on receipt of the written statement of defence the disciplinary authority has to appoint an inquiry officer and while drawing our attention to the instructions issued, a reliance has been placed on DP&AR letter No. 11018/8/81-AIS (III) dated 25.11.1981 where the following decision has been taken:
12. Copy of D.P.&AR, letter No. 11018/8/81-AIS(III), dated 25th November,1981.
12.1 A question has been under consideration of this Department whether rule 8(6) (a) of the All India Services (Discipline & Appeal) Rules 1969, which is analogous to Rule 14(5)(a) of the Central Services (CCA) Rules, 1965, permits the dropping of charges by the disciplinary authority after considering the written statement of defence submitted by the accused member of an All India Service under the aforesaid rules. The question has been considered in consultation with the Ministry of Law and the position in respect of AIS (Discipline & Appeal) Rules, 1969 is clarified as under:
The disciplinary authority has the inherent power to review and modify articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused member of an All India Service under Rule 8(6) of the AIS (Discipline & Appeal) Rules, 1969;
The disciplinary authority is not bound to appoint an Enquiry Officer for conducting an enquiry into the charges which are not admitted by the accused member of the Service but about which the disciplinary authority is satisfied on the basis of the written statement of defence that there is not further cause to proceed with 12.2. It may, however be noted that the exercise of the powers to drop the charges after the consideration of the written statement of defence by the accused member of the Service will be subject to the following conditions:
In cases arising out of the investigation by the Central Bureau of Investigation, the CBI should be consulted before a decision is taken to drop any of, or all, the charges on the basis of the written statement of defence submitted by the accused member of the Service. The reason recorded by the disciplinary authority for dropping the charges should also be intimated to the Central Bureau of Investigation.
The Central Vigilance Commission/State Vigilance Commission/Anti Corruption Deptt. as the case may be, should be consulted where the disciplinary proceedings were initiated on the advice of any of these bodies and the intention is to drop the proceedings altogether, as distinct from dropping or reviewing or modifying some charges.
11. In the above backdrop, it is stated that as more than a year has passed, the inquiry officer is yet to be appointed by the respondents. What would be the procedure to initiate the disciplinary proceeding is when the disciplinary authority after memorandum where tentative charge has been lodged, gives its finding as to the conferment of the charges that would amount to initiation of the proceedings and as no orders have been passed by the disciplinary authority neither applied his mind to the written statement of defence by the applicant nor has the inquiry officer been appointed, is not in consonance with Rule 3 of 1969 Rules. In support of this argument, Shri Masoodi, learned Counsel relied upon the decision of the Apex Court in Government of A.P. and Ors. v. M.A. Majeed and Anr. 2006 (2) ATJ 581.
12. Learned Counsel would further contend that in the matter of continuance of disciplinary proceedings by citing the case of one Shri Rajiv Asthana, though was proceeded against in memorandum dated 17.3.2006, but on receipt of written statement of defence, the State Government by an order passed on 2.5.2006 dropped the charges as per Rule 8 of 1969 Rules.
13. It is further contended by the learned Counsel that despite the request of the applicant in his written statement of defence to drop the charges, non-application of mind on the ground raised and as no order has been issued, applicant being similarly circumstanced as he has been only held for a charge of slack supervision, which cannot be countenanced of principle of equality enshrined under Articles 14 & 16 of the Constitution.
14. As regards disciplinary proceedings, learned Counsel would contend that from the perusal of the charges, no role has been assigned to the applicant in the preliminary investigation conducted, yet when no misconduct attributable to him, with a view to scuttle down his right of consideration for promotion, disciplinary proceedings have been initiated against the applicant.
15. Learned Counsel would further contend by placing reliance on DP&AR letter No. 1101817/78-AIS (III) dated 16.8.1978 that as a time limit has been laid down with a purpose to conclude the inquiry within six months from serving the charge sheet by the inquiry officer and in the present case, almost 10 months have been elapsed and even the inquiry officer has not been appointed, the inquiry is vitiated. The relevant portion of the instructions pertaining to the time limit, reads as follows:
9. Copy of D.P. & A.R. letter No. 11018/7/78-AIS (III), dated 16.08.1978.
Time limits for completing certain stages of inquiry into charges against members of the All India Services are laid down in Sub-rule (8) and (12) of rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. However, experience has shown that very often disciplinary proceedings are inordinately delayed. It is felt that if the guidelines laid down below are followed, it will ensure expeditious disposal of disciplinary cases.
9.2. Sub-rule (8) of rule 8 provides that a member of the service shall be required to appear in person before the Inquiring Authority at any time prescribed after the expiry of 10 working days from the date of the receipt of the charge-sheet. It would therefore, be justified if the charged officer is given not more than 10 days for submitting his written statement of defence in reply to the charge-sheet under Sub-rule (5) of rule 8 ibid.
9.2.1. The statement of defence under Rule 8 (5) ibid is expected to be limit ed simply to admitting or denying the charges communicated to the officer, and for such admission or denial inspection of document is not necessary. Therefore, a request for inspection of documents at this stage made by the delinquent officer may not be accepted and it may be explained to the officer that he would get full opportunity to inspect the listed documents during the course of inquiry as per rule 8 (12) ibid.
9.2.2. Although no time limit, as such, has been stipulated for the admission of the report by the Inquiry Officer after completion of the oral inquiry, ordinarily it should be possible for an Inquiry Officer to submit the inquiry report within a period of one month from the conclusion of the inquiry proceedings.
9.2.3. If these time limits and principles are assiduously observed, the period from the date of serving a charge-sheet in a disciplinary case to the submission of the report by the Inquiring Officer should ordinarily not exceed six months.
9.3. After submission of the Inquiry Report by the Inquiring Officer, where the State Government comes to the conclusion that a major penalty may be imposed on an officer, they may issue a show cause notice to the officer, or remit the case to the Central Government under Rule 8(22) (a) ibid, as the case may be, within one to one and a half months from the receipt of one inquiry report. In cases where the State Government consider that a minor penalty would be enough, a reference to the U.P.S.C. may also be made for their advice, within one to one and a half months of the receipt of the inquiry report.
9.4. While processing disciplinary cases against members of the All India Services, the guidelines mentioned above may be kept in view for completion of Inquiries promptly. The State Government may also consider the desirability of issuing suitable instructions and that where a case is delayed at a particular stage beyond the time-limit stipulated for that stage it be reported to the next higher authority with a statement of reasons for the delay.
16. Learned Counsel of the applicant would further contend that challenge to the disciplinary proceedings as well as suspension, his promotion cannot be withheld and sealed cover procedure cannot be resorted to as DOPT OM dated 21.11.2002 with regard to sealed cover procedure in review DPC clarifies that if on a review DPC in departmental proceedings are binding when a person is not under suspension and if juniors are promoted, one has to be promoted on resorting to sealed cover procedure, is legal. The instructions as referred to above, read as follows:
OFFICE MEMORANDUM Sub: Instruction on sealed cover procedure - Applicability to review DPC - clarification regarding The undersigned is directed to refer to the instructions on sealed cover procedure as contained in this Department's OM No. 22011/4/91-Estt. (A) dated 14.09.1992 and to say that a question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decisions of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 can not be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.
2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned these instructions are issued after consultation with the comptroller and Auditor General of India.
17. In the light of the above, it is stated that pursuant to the review DPC for selection having been held in May 2006, the juniors, who had been promoted on 13.5.2006, withholding of promotion of applicant is sustainable in law.
18. Learned Counsel would further contend that as per Rule 16 of 1969 Rules against suspension, the applicant having preferred a representation to the Central Government through proper channel, the same is yet to be disposed of and his continued suspension is without any basis as the charges alleged against him are of such a nature, which had warranted continuance of suspension and the authorities having not disposed of the appeal / representation of the applicant and on non-application of mind to the contentions raised, the continued suspension is bad in law.
19. On the other hand, respondent No. 1, i.e., Central Government represented through Shri Rajesh Katyal denied the contentions and vehemently contended that as per Rule 18 of 1969 Rules, the appeal by an IFS officer of State cadre should be addressed to the Secretary through proper channel, i.e., through State Government in the present case. However, it is submitted that the Central Government has not been provided with any records pertaining to the case of the applicant, despite their repeated requests to the State Government. For want of records, it is not possible for the Central Government to process the appeal.
20. State Government represented by Shri B. Banerjee vehemently opposed the contentions by referring to instructions of the Government dated 18.11.2002 and stated that though the applicant has completed 9 years of service but cannot be appointed in the JAG in view of the guidelines of the Government of India aforesaid, which clearly stipulates that no appointment can be made where any disciplinary / criminal proceedings are pending against the officer. In this regard, it is stated that the applicant, who has been facing the inquiry, though eligible at present, without conclusion of the disciplinary proceedings, cannot be granted the promotion.
21. Learned Counsel would further state that serious allegation of irregularities having not been refuted against the applicant, his suspension is justified and the charge sheet with disciplinary proceedings initiated, law shall take its own course.
22. Learned Counsel would also contend that for want of impleadment of parties in person, no mala fide can be sustained in law. It is also stated that at an interlocutory stage, setting aside the inquiry would not be legal. A prayer has been made to dismiss the OA.
23. We have carefully considered the rival contentions of the parties and perused the material placed on record.
24. All India Service Act, 1951 has been promulgated under Article 309 of the Constitution of India and power conferred under Section 31 of the Act empowers the Central Government in consultation with the State Government to promulgate subordinate legislation, which in turn has been issued as All India Service (Discipline & Appeal) Rules, 1969. Any subordinate legislation, which is supplemented by Executive instructions or circulars issued. If these circulars are supplementing, the statutory provisions of subordinate legislation and in case of no conflict, both will prevail as held by the Apex Court in DDA v. Joginder S. Monga .
25. In the light of above, suspension is not a punishment. It is a methodology adopted by the Government in case a government servant is facing a disciplinary proceeding or a criminal trial is deprived temporarily from functioning in the office with a view that he should not temper the evidence or influence the witnesses. The master-servant relationship does not cease during the period of suspension and the government servant suspended retains a lien on the permanent post. From time to time, Government has issued instructions for placing a government servant under suspension and also to review the suspension after a period of 90 days.
26. Insofar as revocation of suspension is concerned, in review, DOPT OM dated 7.1.2004 prescribes review of the suspension on recommendation of the Review Committee after 90 days of the suspension with an underlined object that while putting the employee to undue hardship by unduly long suspension would also involvement payment of subsistence allowance to the employee without his performing any useful service to the Government and where the officer has been under suspension for one year without charge memo issued in the departmental inquiry, he be reinstated in service. Although, the trite law also permits the Government to continue the government servant under suspension if the charges are grave though MHA vide OM dated 16.12.1972 in case of a charge sheet prescribes speedy follow action with meticulous adherence to the time limit.
27. MHA OM dated 9.11.1982 extends an opportunity to the suspended employee to apply against suspension where three months' time is extended to finalize the charge.
28. In the light of above, the above general principle of suspension, Rule 3 of 1969 Rules provides for suspension when article of charge have been drawn up and as per the nature of the charges, the satisfaction of the State Government as to placing the employee under suspension in a contemplated proceeding. It is mandatory to issue a charge sheet on initiation of the proceeding within 90 days. Rule 3 (8) (a) provides that on initiation of the charge sheet, the suspension would be valid for a period of not exceeding 90 days and on extension shall remain valid for a further period of not exceeding of 80 days at a time unless revoked. Accordingly, Rule 8 (3) (d) postulates on a Review Committee extension of suspension for a period of 180 days. However, for want of an order, the order of suspension is automatically revoked.
29. The contention put forth by the applicant's learned Counsel by taking resort to Rule 8 (6) (a) of 1969 Rules ibid to contend that whatever has been issued as a memorandum under Rule 8 for a major penalty describing the allegations is only a tentative charge sheet and the charge sheet would be final with initiation thereof only when on a written statement of defence, the disciplinary authority appoints an inquiry officer after considering the contentions raised therein. We are afraid that the aforesaid argument is misconceived. The issue of Initiation of proceeding has been settled by the Apex Court in its definition in Union of India v. K.V. Jankiraman . Moreover, the Apex Court in State of Haryana v. Hari Ram Yadav and Ors. 1994 SCC (L&S) 711 while interpreting Rule 3 of 1969 Rules clearly observed that suspension would be justifiable if the charge sheet under Rule 8 is issued.
30. The Apex Court in State of M.P. v. Onkar Chand Sharma 2002 SCC (L&S) 183 held that date of service of the charge sheet along with the order directing government servant to submit written statement is not a decisive factor for concluding whether proceedings had been initiated and the suspension resorted to would have to be validated only on the charge sheet issued.
31. Having regard to the above, we have no hesitation to hold that what is envisaged under 1969 Rules ibid is suspension on a contemplated proceeding and its validation when charge sheet is issued within 90 days under Rule 8 (4) of 1969 Rules and the initiation would not be reckoned from the stage of Rule 8 (6) (a) of the aforesaid Rules.
32. No doubt, suspension if continued indefinitely without any justifiable reason, causes a serious prejudice to the government servant and also unnecessarily wastage of exchequer of the Government whereby by way of subsistence allowance upto 3/4th of salary has to be paid to a government employee without having his working on the post. When the object of suspension is to prevent a government servant from misusing his position to hamper or temper with the evidence and when serious charges are leveled putting such a person on duty would amount to allowing a premium over his alleged misconduct, yet keeping in light the charges, the duration of continued suspension and the reasoning recorded in review are the relevant factors to determine whether the suspension has to be continued or the person put back in service on reinstatement without prejudice to the proceeding pending against him.
33. In such view of the matter, an appellate avenue is provided under the All India Service Rules, i.e. Rule 16 of 1969 Rules whereby an officer of member of the Service in State on suspension may prefer an appeal to the Central Government against an order of suspension and Rule 19 mandates consideration by the Central Government of all the circumstances of the case in an appeal preferred under Rule 16 against the order of suspension and pass an order, which is just and equitable in the circumstances.
34. Adverting to the facts of the present case, the applicant was placed under suspension on 10.10.2005 on the ground that illegal falling of trees was reported from his area and within 90 days of the order, a charge memo was issued to the applicant in disciplinary proceeding and this suspension was continued and lastly, by an order dated 17.3.2006 for a period of 90 days. The charge sheet issued to the applicant under Rule 8 of the Rules ibid alleges irregularities to the extent that under his jurisdiction prohibited type of trees have illegally cut, for which with a delay, FIR has been registered, shows slack supervision on part of the applicant. Nowhere in the charge sheet, any mala fide or involvement of corruption charges have been leveled against the applicant. At best, the allegations are of administrative lapse. In such view of the matter, at the outset, the moral turpitude, involvement in any offence, corruption charges or serious charges showing lack of integrity of the applicant are overruled. Though we cannot sit at this stage as an appellate authority over the charges but in a judicial review when we are dealing with the question of revocation of suspension for the purpose of continued suspension as per Government of India's instructions referred to above to restrict suspension to the barest, we are exercising this jurisdiction and in this course, we find that the charges are not as such, which would bring the case of the applicant to remain under continued suspension, as the entire record of the proceeding has already been taken into possession by the respondents and the inquiry, despite a charge issued in November 2005, has not moved an inch and not even the inquiry officer has been appointed, shows that the respondents are not serious about the disciplinary proceedings and this mitigates the seriousness of the charge against the applicant. In such an event, the applicant has every right to question the continued suspension under Rule 16 of the Rules before the Central Government and it is equally mandated upon the Central Government to have any cognizance to the request and pass appropriate orders from the reply filed by the Central Government that despite the applicant has preferred an appeal against suspension but the Central Government on receipt has not been provided the comments and the concerned records by the State of UP, which would have facilitated the Central Government to pass a final order in appeal on consideration under Rule 19 of 1969 Rules for which we have no hesitation to deprecate with State Government, which is silent in its reply as to forwarding the record to the Central Government.
35. The Apex Court in K. Sukhendar Reddy v. State of A.P. and Anr. 1999 SCC (L&S) 1088 while dealing with the length of suspension under All India Service Rules held that one cannot be kept under suspension indefinitely.
36. Though the discretion is on the administrative authorities while discharging the role of public functionaries to be judicious and its approach. Discretionary power has been defined by the Apex Court in Union of India v. Kuldeep Singh (2004) SCC 590 with the following observations:
In its ordinary meaning, the word 'discretion' signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise pf will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of other. Discretion is the discern between right and wrong; and, therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rule of reasons and justice, not according to private opinion; according to law and not humor. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to have confined himself. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discrete.
37. If one has regard to the above, the factual matrix of the case would crystallize on transparency the fact that when slack supervision is assailed in the charges and the disciplinary proceedings when initiated with the issue of charge sheet on 17.11.2005, yet the disciplinary authority had acted arbitrarily by not paying any heed to the written statement of defence and has not passed any order appointing the inquiry officer.
38. One aspect of the matter is also relevant to be highlighted is the time limit laid down by administrative instructions issued by the Government vide their letter dated 16.8.1978 ibid where it is mandated upon the authorities to meticulously observe the time limit, i.e., disciplinary proceedings would have to be culminated from the date of serving a charge sheet till the report of the inquiry officer within a period of six months, i.e., not exceeding six months. The aforesaid instructions, being supplementing the rules subordinate legislation, i.e., statutory rules without any conflict, are binding and are to be adhered. It is trite that delay defeats justice. Delay also, which is inordinate and unexplained, prejudices a right of the government servant when he, by passage of time, is unable to prepare the defence material to effectively defend the charges. In such an event, the object laid down behind laying down the time limit has a reasonable nexus and has logic and rationale in its utility.
39. Viewing from the above angle as well, if the inquiry has been delayed without any fault attributed to the applicant when neither his appeal against suspension has been disposed of by the Central Government, nor the disciplinary authority considered his written statement of defence as per Rule 8 (6) and the instructions of DP&AR dated 25.11.1981 where on an inherent power and on application of mind to the written statement of defence, the disciplinary authority can modify or even drop the charges on examination of the written statement of defence. This non-examination being obligatory having not been discharged, the continued suspension cannot be justified.
39. If these charges, as so reflected by the respondents against the applicant, are serious, then the respondents themselves adopted no seriousness keeping in view the gravity of charges to proceed the inquiry. The delay in procedural aspect speaks volume about the intention behind suspension of the applicant, which, by its nomenclature, may not be punitive but having regard to the backdrop when the applicant succeeded in his promotion case on a direction of the Tribunal, has been deprived of the outcome of the order. As a consequence the action of the respondents would rather indicate towards victimization of the applicant without any justifiable cause.
40. However, as we find that the appeal against suspension is pending for consideration before the Central Government, we expect them being a model employer to apply their mind in a just and equitable manner as postulated under Rules 16 & 19 of 1969 Rules to pass a reasoned order in the appeal preferred by the applicant against suspension. The State Government has also shown their callousness towards the applicant. This substantiates his plea of mala fide to the extent that despite writing twice by the Central Government, records pertaining to the suspension of the applicant have not been forwarded to them, which deprived the Central Government to pass an order and it would ultimately indicate towards victimization of the applicant. We hereby expect in good administration and fair play from the State of UP to meticulously and expeditiously follow the directions to forward the records of the applicant to facilitate the disposal of appeal and also while reviewing the suspension as per rules to apply their mind on recording reasons on justifiable and equitable grounds to mitigate the hardship caused to the applicant by revoking his suspension. However, ultimate decision would be at the discretion of State of UP, which has to be exercised judiciously, as explained by the Apex Court in Kuldeep Singh's case (supra).
41. On resolve of the issue of suspension, now we advert to the disciplinary proceedings, which is challenged by the applicant.
42. In MA-950/2006, the applicant has alleged invidious discrimination meted out to him with reference to dropping of charge against him on request made by him to the State Government. Applicant's learned Counsel has referred to a case of one Rajiv Asthana to whom a charge sheet was issued on 17.3.2006 under Rule 8 of 1969 Rules ibid for the allegations akin to the applicant on illegal cutting of the trees in his area. On a written statement of defence made, the State Government by an order dated 2.5.2006 withdrawn the charges against Rajiv Asthana.
43. Rule 8 of 1969 Rules, which sets out the procedure for holding a disciplinary proceeding for a major penalty on receipt of written statement of defence, the preceding act is appointment of an inquiry officer under Rule 8 (6) (a) of the Rules. As the methodology to deal with the written statement of defence has not been provided under Rule 8 (6) (a), this has been supplemented by a consistent circular issued by the DP&AR dated 25.11.1981, which is referred to above, where, in terms of Rule 8 (6) (a) of the Rules, jurisdiction is vested in the disciplinary authority to drop the charges in consultation with Ministry of Law. The clarification rendered is to the effect that the disciplinary authority has not only the power to modify the article of charge but also to drop the charges on examination of the written statement of defence. In that event, it is not incumbent upon the disciplinary authority to appoint the inquiry officer if from the perusal of the statement of defence, holding of the disciplinary proceedings would found to be an exercise in futility. If the proceedings are initiated at behest of vigilance or anti-corruption, departmental charge before dropping the charge through consultation is mandated but that situation does not exist in the present case where on the perusal when no charges relating to integrity and corruption have found, it is within the domain of the disciplinary authority to examine the facts and contentions raised in written statement of defence.
44. It is trite that when public functionaries exercises quasi-judicial functions or act as such, the discretion exercised must culminate into a reasoned order, which not only shows application of mind but also a proof of consideration of their discretion thereof. For want of an order on the written statement of defence, it may hold good when an order appointing the inquiry officer is issued, which would rule out dropping of the charges on the written statement of defence but aforesaid exercise would not absolve the disciplinary authority to consider that in the context of dropping the charges, the written statement of defence of an All India servant and the reasons are mandated to be recorded in file thereof as if a question arises where the appointment of inquiry officer, which is not a mechanical exercise but is preceded by consideration of statement of defence for non-recording reasons a sine qua non of application of mind has to be presumed, which would be an antithesis to fair play and good administration. As such, the instructions issued by DP&AR are binding on disciplinary authority.
45. In a Full Bench decision of the A.P. High Court in M.A. Majeed's case (supra), the High Court has dealt with a similar provision 20 (3) & (4) of Andhra Pradesh Civil Services (Classification Control and Appeal) Rules 1991, which would have implication in the present application as in the DP&AR letter dated 25.11.1981, an analogous provision, i.e., Rule 14 (5) (a) of CCS (CCA) Rules, 1965, had been compared with Rule 8 (6) (a) of the Rules. In the aforesaid decision, what has been held is that it is mandated upon the disciplinary authority to apply its mind to the written statement of defence and thereafter to appoint the inquiry officer. Accordingly, the appointment of inquiry officer, by no stretch, logic or rationale, has to be stereotype duty to be discharged. It is rather preceded by a valid, just and equitable consideration to the contentions raised by the concerned employee in his written statement of defence. The following observations have been made by the High Court of A.P.:
19. It is apparent from Rule 20 that the role of the Enquiry Officer commences after the disciplinary authority framing the charges and applying its mind to the statement of defence if any, filed by the delinquent. We express out inability to agree with the vie taken by the Division Bench of this Court in V. Rajamallaih's case that Rule 20 (4) is too much technical in nature. The object of making the disciplinary authority to frame the charges and consider the written statement of defence if any filed by the delinquent before the appointment of Enquiry of Officer has been stated in the aforesaid paras of the judgment and, therefore, we do not wish to burden the judgment by reiterating the same. In our considered opinion, it is mandatory of the disciplinary authority under the CCA Rules, 1991 to frame charge before the appointment of the Enquiry Officer. The Appointment of Enquiry Officer under Rule 20(2) arises after serving the articles of the charge and receiving the written statement of defence, if any, from the delinquent.
46. If one has regard to the above, despite drawing of a charge sheet in November 2005, non-consideration of written statement of defence of the applicant by the State Government, i.e., the disciplinary authority functioning under the State Government and in the facts that no inquiry officer has been appointed, Rule 8 (6) (a) has not been complied with within its entirety and application. Moreover, when the State Government can withdraw charges of one Rajiv Asthana, a Forest Officer of UP cadre, the applicant in the wake of principle of equality enshrined under Article 14 of the Constitution, expects a fair and equitable treatment to him, which, inter alia, would precede consideration of his written statement of defence and the contentions raised thereof with application of mind by the State Government to drop the charges against him. It is unfortunate that despite making a representation, the same has not been taken cognizance of by the charges with the result the applicant has been discriminated invidiously being similarly circumstances, insofar as the charges, which are the same, is concerned. We expect from the State Government, being a model employer, on a direction to consider the written statement of defence of the applicant in the light of the instructions referred to above and also in the light of the similar treatment is meted out to Rajiv Asthana to his request of dropping the charges, which would culminate into a reasoned order passed by them. We also hold that in All India Service Rules before appointing an inquiry officer, it is incumbent and obligatory upon the disciplinary authority to act in consonance with Rule 8 (6) (a) of the Rules ibid and the instructions of 1981 and thereafter to appoint the inquiry officer, failure to exercise this obligation causes prejudice to the applicant to the all India servant and would, in turn, be a violation of subsistence rules of procedure, which may vitiate the proceedings.
47. Now, we are left with the final issue of whether denial of promotion as an implication and consequence of the Tribunal's directions to the applicant at various levels after a review DPC held when the applicant was neither under suspension nor was any charge sheet issued to him, is justifiable in law or not?
48. A brief background to the accrual of right of consideration to the promotion has a long drawn history whereby a litigation before the Allahabad Bench of the High Court when attained finality, as referred to supra, the Tribunal in OA-324/2005 (supra) directed the proposal sent by the State Government in the matter of assignment of year of allotment to the applicants and consequential benefits of seniority, on compliance, had led to a DPC held for selection in May 2006, as a result thereof not only colleagues but juniors of the applicants have been promoted in 2006, i.e., on 4.5.2006 in pay scale of Rs. 16400-20200. What has been done by the review DPC is to meet in continuation of the original DPC of 15.3.2005 and decide year-wise allotment and consequential benefits with promotion to the officers of IFS, UP cadre. The promotion to the applicant, by placing his case under sealed cover, has been denied relying upon the instructions dated 8.11.1982 whereby appointment of the JAG on completion of nine years of service in the senior time scale, those who are facing disciplinary proceedings, are not to be accorded promotion. It is admitted on part of respondent Nos. 2 & 3 that the JAG and its components are non-functional grades and are admissible without screening and not a promotion in its strict sense, therefore, the applicability of sealed cover procedure would not be in accordance with law. While deliberating upon aforesaid issue, Principal Bench of the Tribunal in Jyoti Shankar v. Union of India and Ors. (OA-1848/2005) decided on 25.7.2006 wherein, resort of sealed cover in non-functional selection grade to the applicant who was functioning as Income Tax Commissioner, has been elaborated with DOPT OM dated 8.1.2003 where non-grant of NFSG, which is non-functional to a person facing disciplinary proceedings, the following has been observed:
25. Another aspect of the matter which requires consideration is that the Government within its discretion to act as an administrative authority should bear in mind that if an arena is occupied by a judicial order there cannot be infiltration into this arena by an administrative order. The Tribunal while dealing with grant of NFSG to a Group A officer facing disciplinary proceedings and on their action to adopt sealed cover procedure in OA-940/2002 Dr. Anoop Kumar Srivastava (supra) held that when grant of NFSG is not a promotion and only involves placement from a lower pay scale to higher pay scale the only requirement by the Internal Committee is to adjudge fitness of a person but strictly speaking promotion would not be inferred and in such an event the regular procedure of sealed cover envisaged under DOPT OM dated 14.9.92 would be misconceived. This decision was rendered on 1.8.2002 and the respondents immediately vide OM dated 8.1.2003 by an administrative decision introduced the concept of sealed cover in grant of NFSG. Firstly, if it is not a promotion, any of the procedure laid down for promotion will not be applicable and secondly, if the sealed cover was to be adopted there should be an amendment of the rules for grant of JAG either deleting NFSG as a segment or amending the rules to bring into force the concept of sealed cover procedure even in non-functional grades. The respondents cannot probate and reprobate simultaneously if NFSG is not a promotion then any of the procedure laid down for promotion would not have to be applied.
26. It is trite that law is defeated by law. In the event, a judicial order by the court holds a view that NFSG not being a promotion and sealed cover cannot be brought into operation bringing in the concept of sealed cover by a memorandum issued on DOPT on administrative side certainly amounts to infiltration of executive in the judicial arena which cannot be countenanced. The Apex Court in Anil Ratan Sarkar and Ors. v. State of West Bengal held that administrative ipse dixit cannot infiltrate to an arena which stands covered by judicial orders.
27. Moreover in Pratap Singh v. State of Jharkhand the Apex Court in a constitution bench ruled that once only a validly laid law can take away the power of the Court, it cannot be done by the Government in exercise of the statutory power.
28. Having regard to the above, we are of the view that DOPT OM though its vires has not been assailed before us but on the proposition of law is not valid in so far as it prescribes resort to sealed cover procedure in grant of NFSG as a segment of JAG.
29. In the result for the foregoing reasons, we allow this OA. Impugned order is set aside. Respondents are directed to restore to the applicant non-functional selection grade w.e.f. 1.1.2003 with all consequential benefits within a period of two months from the date of receipt of the copy of this order. No costs.
49. Another aspect of the matter, which has to be probed into, is that after instructions of the Government dated 18.11.2002, the instruction of DOPT dated 21.11.2002 with regard to sealed cover procedure, applies to all Ministries and Departments of Government of India and All India Service Rules have not been excluded. As an exception, what has been held is that when a review DPC is held in continuation of an original DPC, sealed cover procedure cannot be resorted to when no departmental proceedings were pending against a government servant when the meeting of original DPC had been held or before promotion of his juniors on the basis of recommendation of the original DPC. The aforesaid guidelines have an object sought to be achieved. Though sealed cover procedure is not applicable in non-functional grade, which is not treated as a promotion in its strict sense, but when the DPC has been held and it is denied to a person, who has been facing the proceedings or against him a charge sheet has been issued in departmental proceedings, yet by virtue of DOPT OM of 2003 and the decision of the Apex Court in Union of India and Anr. v. R.S. Sharma , where 1992 OM was interpreted and lays down that in original DPC when person is not facing any of the proceedings would be considered but before actual promotion if disciplinary proceedings are initiated as per rules, his promotion has not to be given effect to. The aforesaid concept is applicable in its facts and a situation where the original promotion is being considered but in a case where review DPC has to be held, the instruction issued by the DOPT on 21.11.2002 has not at all been adhered to, renders the decision in per incuriam, insofar as the peculiar facts of seeking promotion on review DPC is concerned, where the administrative instructions, which are supplementing the rules being subordinate legislation would hold the field.
50. Moreover, the decision in Jyoti Shankar's case (supra) as well as the decision rendered in OA-940/2002 would hold the field by way of a judicial order and the same cannot be scuttled down by the instructions, as referred to by the respondents, dated 18.11.2002, which would be ultra vires of the Executive powers as held by a Constitution Bench in Pratap Singh v. State of Jharkand .
51. Moreover, in the matter of promotion, in such a situation, the decision of Apex Court in Bank of India and Anr. v. Degala Suryanarayana would hold the field where it is held that sealed cover procedure cannot be adopted when no inquiry has been initiated and on a subsequent departmental inquiry from the date of consideration for promotion, sealed cover procedure cannot be resorted to.
52. The Principal Bench of the Tribunal in Ms. Ila Singh v. Comptroller and Auditor General of India (OA-1834/2004) decided on 14.2.2005 on promotion to SAG held as follows:
11. In the above backdrop the decision of the Apex Court in Bank of India and Anr. v. Degala Suryanarayana is relevant to be highlighted wherein the following observations have been made:
13. In the case at hand a perusal of the order dated 5.1.1995 of the disciplinary authority shows that it has taken into consideration the evidence, the finding and the reasons recorded by the enquiry officer and then assign reasons for taking a view in departure from the one taken by the enquiry officer. The disciplinary authority has then recorded its own finding setting out the evidence already available on record in support of the finding arrived at by the disciplinary authority. The finding so recorded by the disciplinary authority was immune from interference within the limited scope of power of judicial review available to the Court. We are therefore of the opinion that the learned single Judge as well as the Division Bench of the High Court were not right in setting aside the finding of the disciplinary authority and restoring that of the enquiry officer. The High Court has exercising writ jurisdiction over a departmental disciplinary enquiry proceeding and therefore the judgments of the learned single Judge and the Division Bench cannot be sustained to that extent. The appeal filed by Bank of India deserves to be allowed to that extent.
12. In the light of the above it is no more res integra that a sealed cover would be resorted to only when there is a decision of the competent authority to initiate disciplinary proceedings and this should precede holding of the DPC or even on the date of the DPC, failing which it cannot be legally said that the person is facing a disciplinary proceeding or even if it is contemplated for which a resort to sealed cover can be resorted to.
13. In the present conspectus it is not disputed on either side that Comptroller and Auditor General of India (CAG) is the competent authority being the disciplinary authority of applicant.
14. We have perused the record produced by the learned Counsel for respondents, where no privilege is claimed. While being repatriated from DDA draft chargesheet for major penalty was sent in view of other charges it was observed during the period February-March, 2004 to consolidate the chargesheet. Meanwhile, the DPC which has met on 25.5.2004 though considered officers of 1998 batch applicant against whom a draft chargesheet was prepared by the DDA the DPC decided to defer her case clearly shows that there was no consideration of the eligible officers. However, applicant sent a representation taking resort to decision in Sudha Salhan (supra) wherein it has been clearly observed that the competent authority, CAG was yet to take a decision to issue the chargesheet at the time when the DPC had met on 25.5.2004. In this conspectus a decision was taken by the CAG to serve the chargesheet and to initiate proceedings against applicant only on 20.7.2004.
15. In the light of the above, when the facts are not disputed the decision to initiate disciplinary proceedings against applicant was issued by the competent authority only on 20.7.2004 whereas DPC had met on 24.5.2004 and the promotion orders were issued on 15.6.2004 and made effective from 1.7.2004. This includes promotion of juniors. As such, the sealed cover resorted to subsequently in a review DPC, cannot be countenanced and is not legally tenable. Applicant was not facing disciplinary proceedings and as such the condition for resorting sealed cover laid down in DoPT OM dated 14.9.1992 has not been satisfied.
16. As per OM dated 14.9.2002, which is reproduced as under, sealed cover procedure cannot be resorted to if no departmental proceeding was pending:
OFFICE MEMORANDUM The undersigned is directed to refer to the instructions on sealed cover procedure as contained in this Department's OM No. 22011/4/91-Estt.(A) dated 14.09.1992 and to say that a question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.
2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned these instructions are issued after consultation with the Comptroller and Auditor General of India.
17. In the result, for the foregoing reasons, the OA is allowed. The respondents are directed to open the sealed cover and to give effect to it. Applicant shall be considered for promotion in the SAG of IAAS from the date her junior(s) and colleagues were promoted with all consequential benefits. This shall be done within a period of one month from the date of receipt of a copy of this order. No costs.
53. Having regard to the above, we are of the considered view that in the light of an order creating a right of consideration to the applicant issued by the Tribunal when juniors had been promoted vide notification, claim of the applicant cannot be denied on the basis of a post-event of issue of the charge-sheet, which was not there even at the time of holding the meeting of the original DPC as well as at the time of review DPC. Such an action is de hors the rules as well as law.
54. Accordingly, we have no hesitation to hold that the applicant is entitled to the relief, as granted to his juniors and colleagues as an implication of implementation of directions in OA-324/2005 with all consequential benefits, including arrears for which necessary process be initiated by the respondents to implement the orders in its true letter and spirit.
55. Having regard to the aforesaid discussions, with the following directions, OA stands disposed of:
We direct respondent No. 3 to forthwith transmit all the records pertaining to the suspension of the applicant to respondent No. 1, who, in turn, under Rules 16 & 19 of the All India Service (Discipline & Appeal) Rules, 1969 would consider the averments made for revocation of suspension in the light of our observations made in this regard and pass a reasoned and speaking order within a period of one month from the date of transmission of records by the State of U.P. We direct State of U.P. (disciplinary authority), in turn, to consider the written statement of defence of the applicant and his request for dropping the charges in the light of similar treatment meted out to Rajeev Asthana by a detailed and speaking order to be issued within one month from the date of receipt of a copy of this order.
We also direct respondent No. 2 to accord benefit of promotion to the applicant, which has been denied, within the aforesaid period, with all consequential benefits, including the arrears.
No costs.