Central Administrative Tribunal - Delhi
B.S.Nehra S/O Shri S.S.Nehra vs Union Of India Through The Secretary on 30 October, 2013
Central Administrative Tribunal Principal Bench OA No.86/2013 MA No.1607/2013 MA No.1908/2013 Order reserved on: 16.08.2013 Order pronounced on: 30.10.2013 Honble Mr. V. Ajay Kumar, Member (J) Honble Mr. V.N. Gaur, Member (A) B.S.Nehra S/o Shri S.S.Nehra r/o D-1/152, Satya Marg, Chankyapuri, New Delhi. Applicant. (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through the Secretary, Ministry of Civil Aviation, Govt. of India, Rajeev Gandhi Bhawan, New Delhi. 2. The Director General, Technical Centre, Govt. of India, Opposite Safdarjung Airport, New Delhi. Respondents. (By Advocate: Shri M.S.Reen) ORDER Mr. V.N. Gaur, Member (A):
This OA has been filed by the applicant with a prayer to quash the impugned charge-sheet dated 09.08.2012, wherein the following charge has been leveled against him:
Capt. BS Nehra while working in the Directorate of Flying Training of DGCA HQ., New Delhi during 2009-10 did not obtain previous sanction of the Govt. to permit employment of his son, Mr. Karan Nehra in July 2010 with M/s Akash Ganga Airlines and Asstt. Pilot Instructor with Carvar Aviation.
2. By his aforesaid act, Capt. BS Nehra has violated the provisions of Rule 4 (1) & Rule 4 (2)(i) of CCS (Conduct) Rules and rendered himself liable to disciplinary action. The applicant was appointed to the post of Junior Pilot in the Ministry of Agriculture on 30.09.1986 and following the post being declared as surplus, he was taken in the rolls of the Ministry of Civil Aviation w.e.f. 1.4.1992 vide order dated 22.06.1992. At the time of his transfer it was stipulated that his duties should be casual or supportive in nature so that the surplus employee can be relieved to join the alternative placement arranged for him by the Central Cell without any difficulty or loss of time. According to the applicant he has been working since then without being formally absorbed in the Ministry of Civil Aviation and has not been delegated any power of Director General, Civil Aviation (DGCA) and this fact has also been admitted by the respondents in OA no.2354/2012. Shri Karan Nehra, son of the applicant took admission in Carver Aviation Academy in Maharastra for Commercial Pilot License training in 2006. The applicant claims that he had duly informed the Head of Department about it even though it was a training. After completion of the training Shri Karan Nehra, son of the applicant was retained in the same Institute for two months, after which, he left the Institute and has not drawn any salary for the above short tenure. Subsequently he was selected vide letter datd 31.07.2010 as Co-Pilot/First Officer in Akash Ganga Airlines Limited, which is a non-scheduled operator, and till date this company has not come into operation or brought any aircraft and its permit/approvals have also expired. The applicant has submitted that he is not holding any regular post in the department as he is a surplus employee of the Ministry of Civil Aviation and no statutory power has been given to him. He has been assigned the duties to carry out periodic inspections, and follow up action thereof, of the Flying Clubs and Flying Training Institutes in the southern region to ensure adherence of safety regulation and other instructions issued from time to time by the DGCA. Since he had no official dealings with Carver Aviation Institute or with the Akaash Ganga there was no need to submit any information to the respondents with regard to the employment of his son, even though he did inform the department vide letter dated 16.11.2010. Again in response to letter dated 20/25.01.2011 issued by the respondents the applicant submitted some details and documents vide letter dated 25.02.2011 and only thereafter, he has been issued a show cause notice as to why disciplinary proceedings should not be initiated against him to which he has already replied.
2. Learned counsel for the applicant has submitted that in this case strictly according to the rules it was not obligatory on the part of the applicant to have informed the fact of employment of his son with the said two organizations but being a law abiding citizen the applicant did communicate these facts to the respondents. It has been further alleged that the present charge memo is a consequence of the applicants action of filing an OA no.1304/2012, seeking the benefit of financial upgradation under MACP Scheme and subsequent Contempt Petition no.558/2012, which was subsequently closed on 12.09.2012 by grating two months more time to implement the judgment. He further contended that the impugned charge-sheet was in violation of law, as all the orders and charge-sheet etc. on behalf of the President are issued by the Ministry only after taking approval of the competent authority and in this case the DGCA issued the impugned charge on behalf of the President even without taking any approval from the competent authority. It was also alleged that the charge mentioned in the charge-sheet was vague and was issued by an incompetent authority and, therefore, was liable to be quashed. The applicant in any case has not conducted any violation of the Rules though his son has got employment with Akash Ganga Airlines Limited vide letter dated 31.07.2010. The company has not come into operation or brought any aircraft and its permission/approvals have also expired and the son of the applicant continues to sit idle at home. Practically there is no employment of son of the applicant with the Akash Ganga Airlines and, therefore, there cannot be any violation of the Rules.
3. The main contention of the learned counsel for the applicant was that the charge-sheet as was issued to the applicant was not approved by the competent authority, i.e., the Minister of Civil Aviation since the applicant is a class-I officer. The applicant has relied on the following decisions of this Tribunal:
i) OA no.800/2008 B.V. Gopinath v. Union of India & Others, decoded by the Principal Bench on 05.02.2009; and
ii) OA no.1434/2008 Sri S.K. Srivastava v. Union of India & Ors., decided by the Principal Bench on 18.12.2008.
4. Learned counsel for the respondents vehemently objected to the prayer made by the applicant on the ground that it was a well settled law that at the stage of the charge-sheet the court should not interfere. In this regard, he relied on the decision of the Honble Apex Court in State of Orissa v. Sangram Keshari Mishra, (2010) 13 SCC 311 and Ministry of Defence v. Prabhash Chandra Mirdha, (2012) 11 SCC 565. It was submitted that the applicant has already acquiesced to the enquiry being conducted as a follow up to the impugned charge-sheet. He had written to the DGCA vide letter dated 04.02.2013 for changing the Enquiry Officer (EO) which was agreed and the EO has been changed and, therefore, at this stage he is estopped from challenging the charge-sheet itself.
5. The applicant and respondents have filed affidavits placing additional submissions and record in support of their respective stands. However, we would not go into the merits of the allegations made against the applicant in the charge-sheet, as the law laid down by the Honble Apex Court through various judgments is quite clear that this Tribunal cannot sit on judgment on the allegations made in the charge-sheet and replace the departmental enquiry committee, that is entrusted with the job under the relevant statute. However, we will confine ourselves to the limited fact whether before issuing the charge-sheet the laid down statutory procedure has been followed or not. As directed by this Tribunal, the learned counsel for the respondents has produced the relevant file where the decision with regard to issue of charge memo was taken. It is found that the Vigilance Section of the Civil Aviation Ministry has put up a note on the file bearing no.A-19011/3/95-E-II(DGCA) on 04.05.2012 (page 87-90 of note sheet) for the approval of the Minister with the caption Regarding permission for initiating disciplinary proceedings against Capt. B.S. Nehra, Junior pilot in o/o DGCA. After narrating the facts and discussing the allegations the note concluded:
We may, if approved, forward the case to the CVC for seeking their 1st stage for initiation of disciplinary proceedings against Capt. B.S. Nehra. This case was submitted earlier combined alongwith other cases on similar charges. However, as per orders at Flag-J, this case is now submitted separately.
12. In view of the position explained above, file may please be submitted for kind approval of the Honble Minister of Civil Aviation for seeking 1st stage advice from CVC, regarding violation of Rule 4 (1) and Rule 4 (2) (i) of the Conduct Rules and for asking DGCA to give clear cut recommendation about accepting or not accepting the intimation given by Capt. B.S. Nehra. This note was approved by the Minister of Civil Aviation on 09.05.2012. Nowhere in the note or in the concluding para it is mentioned that the draft charge-sheet is also placed in the file for the approval of the Minister. However, while sending the OM dated 22.05.2012 to the CVC, the Ministry of Civil Aviation OM mentions draft charge-sheet along with imputation of charges etc. as one of the documents that was enclosed. In an earlier file from where a copy of the noting has been placed in this file at page 231 (correspondence) the following has been recorded by the concerned Joint Secretary, Ministry of Civil Aviation:
Kindly refer to the above note. It is a clear cut case of violation of Rule 4 (1) and 4 (2) (i) of CCS (Conduct) Rules (N/11). However, there are two questions which we will need to answer. First is about the quantum of punishment after the charges are established and secondly about the fate of employment of the wards. Whether it should be accepted, kept on record or not accepted. As per 4 (2) (ii) of CCS Rules there is a provision where a govt. servant can inform the prescribed authority even after the employment has begun if he did not have prior knowledge and is not dealing with the matter related to the employment.
2. I think the matter should be referred to CVC for the 1st stage advice for violation of CCS (Conduct) Rules. For the latter part, we may ask DGCA for clear cut recommendation keeping the conflict of interest angel in mind about accepting/not accepting the information. The above note was approved by the Secretary and the Minister of Civil Aviation.
6. From the above note what is abundantly clear is that the Ministry had not even made up its mind whether to take action for violation of the relevant conduct rules or not because the option of whether it should be accepted, kept on record or not accepted was also mentioned. It was also stated that as per Rule 4 (2) (ii) of CCS Rules there is a provision where a government servant can inform the prescribed authority even after the employment has begun if he did not have prior knowledge and is not dealing with the matter related to the employment. Accordingly, the twin actions of obtaining CVC 1st stage advice and also DGCAs clear cut recommendation was suggested.
7. From the perusal of the record it is clear that not only that the draft charge-sheet was never approved by the competent authority before its issue but also that the competent authority had not made up its mind with regard to the issue of charge-sheet till the date of approval, i.e., 27.04.2012 and 07.05.2012. The respondents have not produced any record to show that the charge-memo which was finally issued after receiving the 1st stage advice of the CVC was at any time approved by the competent authority.
8. This principle in this regard has already been settled in B.V. Gopinath v. Union of India & Others (OA no.800/2008) which was upheld by the Honble High Court of Delhi in Writ Petition (Civil) no.10542/2009 and by the Honble Supreme Court in Union of India & Others v. B.V. Gopinath [CIVIL APPEAL no. 7761 of 2013 (Arising out of SLP (C.) No. 6348 of 2011), decided on 05.09.2013] and has been consistently followed in Union of India & Others v. S.K. Srivastava (Writ Petition (Civil) no.13223/2009) and Sudhir Ranjan Senapati v. Union of India & Others (OA no.942/2009 and several other cases) where non-approval of the charge sheet by the competent authority has been considered a fatal flaw in the disciplinary proceedings.
9. In view of the above facts and circumstances, without going into the other grounds, the charge memo dated 09.08.2012 is quashed. The respondents are, however, at liberty to proceed in the matter afresh from that stage onwards, if they so desire. The file no. 19011/3/95-E-II(DGCA) submitted by the respondents is released. The OA stands allowed accordingly. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.