Central Administrative Tribunal - Lucknow
Dr Lalit Varma vs Union Of India on 31 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
LUCKNOW
Original Application No. 332/00351/2021
This the 31st day of May, 2023
Hon'ble Mr. Justice Anil Kumar Ojha, Member-J
Hon'ble Dr.Sanjiv Kumar, Member (A)
Dr.Lalit Verma, aged about 61 years, S/o Late Shri M.P.
Verma, R/o-Amar Nath Flat, E-01, Govt ITI, Sector-31 Noida,
U.P. 201301.
........Applicant.
By Advocate: Shri Praveen Kumar.
Versus.
1. Union of India, through the Secretary, Ministry of
Personnel, Public Grievances & Pension, Department of
Personnel & Training, North Block, Government of India, New
Delhi.
2. State of UP through the Principal Secretary (Appointment),
Govt. of UP, Civil Secretariat, Lucknow.
3. Union Public Service Commission, Dholpur House,
Shahjahan Road, New Delhi through its Chairman.
.....Respondents.
By Advocate: Shri Pradeep Kumar
Shri S.S. Rajawat
Shri Yogendra Sharma.
O R D E R (ORAL)
Heard learned counsel for the applicant, learned counsel for respondents and perused the records.
2. Applicant has prayed for the following reliefs:-
"(1). To quash the impugned order dated 04.08.2021 Page 2 of 9 (contained as Annexure No.A-1 to this OA) with all consequential benefits.
(2). To restore the monthly pension and other retrial benefits such as commuted pension of the applicant and release arrears thereof alongwith interest 212% p.a. from the date of due till the actual date of payment.
(3). Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
(4). Cost of the present case."
3. Tersely put, the case of the applicant is that the applicant was an IAS officer of UP Cadre allocated to 1984 Batch. The date of birth of the applicant was not mentioned properly in his service records on account of uncorrected school certificate. Thus, enquiry was held with regard to the erroneous date of birth with correct date of birth. An FIR was also lodged with the CBI by the respondents in the matter in 2002, during pendency of an OA before this Tribunal for acceptance of actual date of birth in service records, since 1991. In 2005, the Tribunal allowed the OA however, applicant retired on 28.02.2019 as per his recorded date of birth.
4. In the aforesaid Criminal Case, charge sheet was filed. Applicant preferred a petition U/s 482 Cr.PC. On 09.02.2009, the Hon'ble High Court was pleased to quash the charge sheet filed in the criminal case, which was never challenged by the respondents. On the same allegations as in FIR, the respondents issued a charge sheet and initiated departmental proceedings against the applicant on 11.09.2017. Aggrieved with the aforesaid, the applicant preferred an O.A.No.317/2017 before this Tribunal. He also filed a Writ Petition No.16875/2018 (SB) before the Hon'ble High Court, which was disposed on vide order dated 31.05.2018, directing the respondents to conclude the disciplinary proceedings pending against the applicant by 10.09.2018 in the light of the decision given by the Hon'ble Supreme Court in the case of Prem Nath Bali vs Registrar, High Court of Delhi and Others, reported in AIR 2016 SC Page 3 of 9
101. The application for extension of time moved by the respondents was also rejected by the Hon'ble High Court vide its order dated 22.05.2019.
5. On 04.06.2019, the Tribunal passed orders in O.A.No.317/2017, staying the departmental proceedings in respect of the aforesaid charge sheet. The relevant portion of the order is as follows:-
"7. The Tribunal is aware of the sanctity of not interfering in proceedings at the chargesheet stage unless on grounds which are extremely commanding wherein due process/law is blatantly violated. Hon'ble Apex Court in catena of judgements has rules in this respect. Without getting into any details on the merits of the case, therefore, the sanctity of the order of the Hon'ble High Court dated 31.05.2018 confronts us. There is no way, therefore, that this Tribunal can take any decision contrary to that of 31.05.2018 specially when the order of 22.05.2019 also stands unrebutted in favour of the applicant. Therefore, further enquiry in respect of chargesheet assailed in the OA No.317/2017 is liable to be stayed and is hereby stayed till the disposal of OA or any order of Higher Court Order whichever is earlier."
6. Thereafter, the State Government filed a Civil Appeal No.5543-5544 of 2019; State of UP versus. Lalit Verma before the Hon'ble Apex Court. Hon'ble Apex Court vide its orders dated 15.07.2019 and 18.11.2019 permitted the respondents to complete the disciplinary proceedings till 15.01.2020. The respondents concluded the enquiry and submitted its report on 29.07.2019 and provided a copy thereof by means of letter dated 01.08.2019. Part-1 of charge no.1, charge no.2, charge no.3 and charge no.4 were not found proved. Part -2 of charge no.1 was found proved but partially and that too, without there being any malafide intention. After receipt of the notice/report, the applicant submitted a reply on 05.08.2019, wherein it has been stated that an error or omission without any malafide intention is not a misconduct.
7. However, the applicant submitted representations to Page 4 of 9 the authorities on 16.01.2020, 16.02.2020, 18.03.2020 & 24.04.2020 stating therein that proceedings are not sustainable in view of the findings given by the Hon'ble Supreme Court in the matter of Prem Nath Bali, P.V. Mahadevan, D.V. Kapoor and B.V. Gopinath's case.
8. Submission of the learned counsel for the applicant is that charge sheet has been issued without approval of the Disciplinary Authority therefore, such charge sheet cannot stand to the test of law as held by the Hon'ble Supreme Court in State of Tamilnadu vs. Pramod, IPS.
9. On 15.05.2020, applicant requested to the State Government for release of retiral benefits and also for No Enquiry Certificate as the applicant had been applying for appointment elsewhere.
10. On 18.05.2020, the State Government issued a letter to the applicant providing UPSC advice dated 22.04.2020 whereby, it was recommended to impose 10% cut in monthly pension for a period of one year. The Disciplinary Authority without offering any disagreement note, as has been held by the Hon'ble Supreme Court in Kunj Bihari Sharma, imposed the punishment vide impugned order dated 04.08.2021. The punishment order is in gross violation of the rules as also the dictum of Hon'ble Apex Court in Kunj Bihari Sharma's case.
Hence, this OA.
11. The respondents by filing their Counter Affidavit have, inter alia, stated therein that the CBI has submitted the charge sheet on 08.07.2006 after the investigation, which was challenged by the applicant by filing a writ petition before the Hon'ble High Court and the Hon'ble High Court vide its order dated 09.02.2009 quashed the charge sheet. However, on the technical reasons in view of the report of the CBI, the S.L.P. was not filed before the Hon'ble Supreme Court. The applicant made several attempts to prove his date of birth as 13.02.1962 instead of 01.03.1959.
Page 5 of 912. Further averred that the action of the applicant in making attempt to change his date of birth as 13.02.1962 comes under the category of severe misconduct and such an action is not acceptable from a person who is appointed on the highest service of the Country i.e. the Indian Administrative Service. UPSC has endorsed the finding of the Enquiry Officer accepted by the Disciplinary Authority, is devoid of merit as it is only an allegation without any supportive documents. Contrary to this, the UPSC advice is self-contained, self-explanatory and well-reasoned as it is evident from the advice of the UPSC. Further, the findings of enquiry officer were placed before the Disciplinary Authority for tentative approval and the Disciplinary Authority given approval on 14.01.2020 for imposition of 10% cut in penalty of pension of the applicant for a period of one year. The OA filed by the applicant deserves to be dismissed with costs.
13. The applicant has filed Rejoinder Affidavit, reiterating the averments made in the OA.
14. Learned counsel for the applicant submitted that the charge sheet submitted against the applicant is not approved by the competent authority. On this count alone, the OA deserves to be allowed.
15. Further submitted by the learned counsel for the applicant that the charge sheet has not been approved by the Disciplinary Authority and this fact has also been admitted by the respondents while filing counter reply in the earlier case of the applicant i.e. O.A.No.317/2017,wherein they have clearly admitted that charge sheet has been issued by the Chief Secretary. Therefore, the charge sheet itself lacks competence and the punishment order imposed is also vitiated.
16. Learned counsel for the applicant drew attention of this Tribunal towards the order passed by this Tribunal in O.A.No.196/2018 inre: Ajay Kumar Choudhary vs. Union of India through Defence Secretary, Ministry of Defence, Page 6 of 9 South Block, New Delhi & Another dated 24.04.2023 wherein, in the similar facts and circumstances, as of the case in hand the Tribunal quashed the charge sheet.
17. Per contra, learned counsel for the applicant vehemently opposed the aforesaid prayer and contended that disciplinary proceedings were initiated by issuing a charge sheet dated 11.09.2017 by the Appointment department of State Department.
18. The CCS (Conduct) Rules, 1964 stipulate in Rule-2 as under:
(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his best judgement except when he is acting under the direction of his official superior;
(iii) The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter;
(iv) A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing. [EMPHASIS SUPPLIED]
19. The issue of oral instructions came up in the famous case of T.S.R.Subramanian & Ors vs Union Of India & Ors on 31 October, 2013, Author: Bench: K.S. Radhakrishnan, Pinaki Chandra Ghose in which one of the issues itself deals with the matter of oral instructions. The relief concerned is extracted hereunder:
"(iii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the respondents to mandate that every civil servant formally record all such instructions/directions/ orders/suggestions which he/she Page 7 of 9 receives, not only from his/her administrative superiors but also from political authorities, legislators, commercial and business interests and other persons/quarters having interest, wielding influence or purporting to represent those in authority based on the principles recognized by Rule 3(3)(ii)(iii) of the All India Service Conduct Rules, 1968 and as implicitly recognized by the Santhanam Committee Report, 1962 (Section 6, sub-para 33[iii]."
18. Further, we also notice the All India Services (Conduct) Rules, 1968, which also states that the directions of the officials superior shall ordinarily be in writing. Rule 3(3) of the above-mentioned Rules reads as follows :-
3(3) (i) No member of the Service shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in writing. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter. [EMPHASIS SUPPLIED]
(iii) A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.
32. We have extensively referred to the recommendations of the Hota Committee, 2004 and Santhanam Committee Report and those reports have highlighted the necessity of recording instructions and directions by public servants. We notice that much of the deterioration of the standards of probity and accountability with the civil servants is due to the political influence or persons purporting to represent those who are in authority. Santhanam Committee on Prevention of Corruption, 1962 has recommended that there should be a system of keeping some sort of records in such situations. Rule 3(3)(iii) of the All India Service Rules specifically requires that all orders from superior officers shall ordinarily be in writing. Where in exceptional circumstances, action has to be taken on the basis of oral directions, it is mandatory for the officer superior to confirm the same in writing. The civil servant, in turn, who has received such information, is required to seek confirmation of the directions in writing as early as possible and it is the duty of the officer superior to confirm the direction in writing. [EMPHASIS SUPPLIED] Page 8 of 9
33. We are of the view that the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests. Further, civil servants shall also not have any vested interests. Resultantly, there must be some records to demonstrate how the civil servant has acted, if the decision is not his, but if he is acting on the oral directions, instructions, he should record such directions in the file. If the civil servant is acting on oral directions or dictation of anybody, he will be taking a risk, because he cannot later take up the stand, the decision was in fact not his own. Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity. [EMPHASIS SUPPLIED] RTI Act and Civil Servants
34. Democracy requires an informed citizenry and transparency of information. Right to Information Act, 2005 (RTI Act) recognizes the right of the citizen to secure access to information under the control of public authority, in order to promote transparency and accountability in the working of every public authority. Section 3 of the Act confers right to information to all citizens and a corresponding obligation under Section 4 on every public authority to maintain the records so that the information sought for can be provided. Oral and verbal instructions, if not recorded, could not be provided. By acting on oral directions, not recording the same, the rights guaranteed to the citizens under the Right to Information Act, could be defeated. The practice of giving oral directions/instructions by the administrative superiors, political executive etc. would defeat the object and purpose of RTI Act and would give room for favoritism and corruption.
35. We, therefore, direct all the State Governments and Union Territories to issue directions like Rule 3(3) of the All India Services (Conduct) Rules, 1968, in their respective States and Union Territories which will be carried out within three months from today."
20. In the case of Ajay Kumar Choudhary vs. Union of India through Defence Secretary, Ministry of Defence, South Block, New Delhi & Another (O.A.No.196/2018) dated 24.04.2023 wherein, in the similar facts and Page 9 of 9 circumstances, the Tribunal quashed the charge sheet on the ground of non-approval of the charge sheet by the competent authority. In the present matter also the charge sheet is not approved by the competent authority so there is no ground to take a different stand in the matter from the stand taken by this Tribunal in the earlier OA No.196/2018.
21. In view of the above, the Charge Sheet lacks approval of competent authority and is liable to be struck down for this reason alone.
22. It is accordingly directed as hereunder:
i. The Charge Sheet dated 04.08.2021 is quashed; ii. Liberty is granted for the disciplinary proceedings to restart from the concerned stage after competent approvals of the competent authority per the CCS (CCA) Rules 1965.
23. The OA is decided in above terms. It is clarified that we have not adjudicated upon the merits of the case. There shall be no order as to costs. Pending MA s, if any, also stand disposed of.
(Dr.Sanjiv Kumar) (Justice Anil Kumar Ojha) Member (A) Member (J) Ak/-