Central Administrative Tribunal - Bangalore
Murali M S vs Sports Authority Of India on 20 October, 2021
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OA.No.170/332/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/00332/2020
ORDER RESERVED ON 10.08.2021
DATE OF ORDER: 20.10.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Sri. M.S. Murali, 60 years
S/o Sri. M.K. Sathyanarayana Rao
Deputy Director (Finance) (Retired)
Sports Authority of India
Netaji Subhash Southern Centre
Mysuru Road, Jnanabharati Campus
Bengaluru: 560 056.
Residence at No: 424, 4th Main
BSK 1st Stage, Srinagar
Bengaluru: 560 050. .....Applicant
(By Advocate Shri P.A. Kulkarni)
Vs.
1. Union of India
To be represented by its Secretary
Ministry of Youth Affairs and Sports
Shastri Bhavan
New Delhi: 110001.
2. Director General
Sports Authority of India
JN Stadium, East Gate
Lodhi Road
New Delhi: 110 003.
3. Director (Personnel)
Sports Authority of India
JN Stadium, East Gate
Lodhi Road
New Delhi: 110 003.
4. Senior Director
Sports Authority of India
Netaji Subhash Southern Centre
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OA.No.170/332/2020/CAT/Bangalore Bench
Mysuru Road, Jnanabharati Campus
Bengaluru: 560 056. .....Respondents
(By Shri M.V. Rao, Senior Panel Counsel)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a. Quash the orders bearing i. F.No. SAI/Pers./1545/98/91, dated 19.05.2020(Annexure-A1), passed by Director General, SAI, New Delhi, Respondent No.2 wherein charge sheet has been issued against the applicant and an enquiry is proposed to be held on the charges set out in the statement of articles of charges.
ii. F.No. SAI/Pers./1545/98 (Pt.II), dated 23.06.2020, (Annexure-A3) passed by Director General, SAI, New Delhi(R2) wherein Sh. Rajeev Sareen, Deputy Director has been appointed as Presenting Officer in the proposed enquiry.
iii. F.No.SAI/Pers./1545/98 (Pt.II), dated 23.06.2020(Annexure-A4) passed by Director General, SAI, New Delhi(R2) vide which DG has appointed Sh. Pradeep Kumar Khullar, Regional Director, Min. of Textiles as Inquiry Officer to inquire in to the charges framed against the applicant.
b. Direct the respondents to cause release of Pension Payment Order(PPO) forthwith.
2. The facts of the case as averred by the applicant in his pleadings are as follows:
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OA.No.170/332/2020/CAT/Bangalore Bench a. The applicant was appointed as Junior Accounts Officer in Sports Authority of India(SAI) on 12.02.1990. He retired on superannuation w.e.f. 31.05.2020 while working as Deputy Director Finance at SAI, Bengaluru Office under respondent No.4.
b. A charge memo was issued to the applicant on 19.05.2020 under Rule 14 of CCS(CCA) Rules 1965 by respondent No.2 levelling the following two charges:
The applicant being a DDO of NSSC SAI Bengaluru failed to discharge his basic responsibility to remit professional tax and TDS deducted from the employees.
The applicant as a DDO provisionally settled the LTC of claims of Venkateshwar Reddy then Director SAI Bengaluru and Dr. P. Mujumdar SSO even though they booked air tickets through an agency not approved by the Government.
c. The applicant has submitted his written statement on 23.05.2020 denying both the charges.
d. Respondent No.2 (Disciplinary Authority) has appointed Sri Rajeev Sareen, Dy. Director, as a Presenting Officer(PO) and Sri Pradeep Kumar Khullar, Regional Director(Retired) of Min. of Textiles, as an Inquiry Officer (IO) on 23.06.2020 to enquire into the charges framed against the applicant.
e. The applicant was under the belief that the Disciplinary Authority has accepted the explanation offered by him in the written statement. On account of disciplinary proceedings initiated by the authority, his terminal benefits are blocked except for provisional monthly pension released to the applicant.4
OA.No.170/332/2020/CAT/Bangalore Bench f. The contention of the applicant is that this has been done with ulterior motive by the respondents since in his service career, he had been exercising his right to seek legal remedies whenever necessary. This might have caused irritation to the Headquarters and in retaliation this disciplinary proceeding is initiated against him just before his retirement.
g. The previous litigations initiated by the applicant before this Tribunal are as follows:
i. OA.Nos.367/2004, 63/2006, 151/2009& OA 1130/2014 have been filed by the applicant before this Tribunal in respect of grievance pertaining to non-grant of MACP benefits when due. In the end, in OA.1130/2014, his MACP claim is entertained and settled to his satisfaction by the administration.
ii. In another OA.No.1502/2014, the applicant challenged his transfer order to Kolkata. On promotion when he was sent to Kolkata, though his above OA was not entertained by this Tribunal, Headquarters, however, subsequently reposted him to Bengaluru from Kolkata. In spite of this, the controlling authority at Kolkata office was not ready to relieve the applicant even after repeated requests. Left with no other alternative, he filed another OA.No.466/2018 before this Tribunal which intervened and facilitated his transfer back to Bengaluru.5
OA.No.170/332/2020/CAT/Bangalore Bench iii. When his superannuation was just less than one year, administration transferred him to Gandhinagar. The applicant challenged the same in OA.No.1292/2019 before this Tribunal and the Tribunal quashed the transfer order and allowed the applicant to retire at Bengaluru. h. Under these circumstances, the applicant considers that some of the officers, prejudicial to the applicant, stationed at Headquarters New Delhi may have influenced the Director General unduly to proceed against the applicant with the disciplinary proceedings in question by appointing PO & IO. Blocking of the release of the terminal benefits without any justification in the instant case has caused harassment and humiliation to the applicant.
i. The contention of the applicant is that under Rule 14 of CCS (CCA) Rules 1965, the disciplinary authority is required to inquire into the truth of any imputation of misconduct or misbehaviour against a Govt. servant under Rule 14(2).
j. The provision contained under Rule 14 of CCS (CCA) Rules 1965 clearly requires that there must be an opinion formed by the disciplinary authority that there are grounds for enquiring into the truth of any imputation of misconduct or misbehaviour against a Govt. servant and where it is proposed to hold enquiry against Govt. servant then only disciplinary authority can draw up a charge memo in the prescribed proforma. In the instant case, the disciplinary authority straightaway by issuing impugned charge memo dated 19.05.2020 6 OA.No.170/332/2020/CAT/Bangalore Bench seeks to hold enquiry against the applicant under Rule 14 by skipping the mandatory requirement of forming the opinion as provided under Rule 14 (2). Without compliance of the requirement of Rule 14 (2), disciplinary authority is not supposed to proceed to issue charge memo directly under Rule 14 (3). By straightaway issuing the charge memo, the disciplinary authority has exhibited a prejudice against the applicant. According to the applicant, the proceeding in question gets vitiated from that stage itself. The charges levelled against the applicant are minor/frivolous in nature and the charges have been framed only a few days before his retirement.
k. The disciplinary authority has decided to proceed against the applicant with reference to the charge memo in question even after his attaining superannuation. Such scope for continuation of the disciplinary proceedings even after the retirement is traceable to Rule 9 of the CCS (Pension) Rules 1972. As per this Rule 9, continuation of the disciplinary proceedings is only for the purpose of exercising of the right of the President to withhold or withdraw pension in full or in part whether permanently or for a specified period, if the pensioner is found guilty of grave misconduct or negligence during the period of service.
l. The charges are minor/frivolous in nature and not amounting to grave misconduct or negligence. Hence, it is not open for the disciplinary authority to continue the disciplinary proceedings in the instant case 7 OA.No.170/332/2020/CAT/Bangalore Bench after his retirement and the action taken by the authority is a case of misuse of the disciplinary control vested in the authority.
3. The respondents No.2, 3&4 have filed their reply statement wherein they averred as follows:
a) The applicant in the instant OA has challenged the charge memorandum as well as the proceedings relating to the appointment of Presenting Officer and Inquiry Officer by the respondents. It is submitted that two articles of charge has been made against the applicant and each of the article of charges has been elaborated in the Statement of Imputation by the answering respondents.
b) It is a settled principle of law that any interference in the charge memorandum is warranted only when it is established beyond any doubt that the authority that issued the charge memorandum is not vested with the power or when no act of misconduct can be perceived even if the allegations contained in the charge memorandum are taken as true.
c) The article of charge and the article of imputation clearly establishes the act of misconduct on the part of the applicant.
d) Once the disciplinary proceeding has been initiated, memorandum of charge has been issued, the appointment of Presenting Officer and Inquiry Officer is part of the process of the disciplinary proceedings.
Moreover, the applicant has failed to point out any infirmity and or illegality in the appointment of the inquiry officer or the presenting 8 OA.No.170/332/2020/CAT/Bangalore Bench officer. Therefore, there is no illegality and or infirmity in the aforesaid process of appointment of the inquiry officer and the presenting officer by the answering respondents.
e) It is also the settled position of law that to inquire and initiate proceedings for misconduct and dereliction of official duty by an employee falls within the domain of the disciplinary authority and the same cannot be interfered with by this Tribunal.
f) During the Annual Audit conducted by C&AG of Karnataka, for SAI NSSC Bangalore, some major financial irregularities were observed in the Audit Report. Since majority of the observations was pertaining directly or indirectly to the then Accounts Officer, the applicant herein, the following major irregularities are recorded by the C&AG:
i. Non remittance of Professional Tax and TDS ii. Settlement of LTC ticket booked through unauthorized agency
g) On the basis of the aforesaid facts, DG SAI, respondent No.2 issued the charge memorandum bearing F.No.SAI/Pers/1545/98/91 dated 19.05.2020.
h) The applicant in his reply to the charge memo, vide his written submissions dated 23.05.2020, denied all the charges.
i) Upon perusal of the written submission, it was found that there is a clear cut violation, and charges of imputation which needs to be inquired, therefore, disciplinary authority of respondents initiated the 9 OA.No.170/332/2020/CAT/Bangalore Bench proceedings under Rule 14 and Shri Pradeep Khuller was appointed as Inquiry Officer and Shri Saras was appointed as Presenting Officer by the competent authority on 23.06.2020.
j) After considering the written submission of the applicant, following the process, the disciplinary authority decided to initiate departmental inquiry on the ground that the applicant being the accounts officer of NSSC SAI Bengaluru, failed to perform his basic duties for Non- Remittance of Professional Tax and TDS deducted from the employees which caused pecuniary loss to the Government and booked the air tickets through an agency not approved by the Government which is clear violation of Govt.'s DOPT Guidelines.
k) In view of the pending departmental proceedings against the applicant, the order for releasing the provisional pension to the applicant has been issued.
l) There is no bar to initiate inquiry before superannuation of any employee under the CCS (CCA) Rules 1965. In terms of Rule 9 (2)
(ii) clearly provides that the departmental proceedings referred to in sub-rule 9 (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. Hence, inquiry under Rule 14, CCS (CCA) Conduct Rules 1965 has 10 OA.No.170/332/2020/CAT/Bangalore Bench been initiated against the applicant following the due procedure of law. The inquiry is still pending against the applicant and reasonable opportunity has already been granted to the applicant to appear before the Inquiry Authority. The appointment of the Presenting Officer and the Inquiry Officer by the answering respondents in connection with the inquiry of the Charge Memorandum dated 19.05.2020 is a natural corollary of the charge memorandum and it is part of the process itself.
m) The respondents have followed the due procedure in the instant case and the applicant has miserably failed to show any violation of any of the rules and regulations and or established law by the answering respondents.
n) The claim for Rs.1,69,608/- was admitted by the applicant though the officer had performed the journey by booking through a private agency which is in contradiction to the DoPT orders.
o) The imputations of articles of charges are in the nature of pecuniary loss to the Government/department which needs to be inquired.
4. In his rejoinder, the applicant has mainly raised the following points:
a) The applicant in the reply to the charge memorandum had denied both the charges and clarified the position.
b) The applicant has contended that unless formation of the opinion by the disciplinary authority to proceed further in the matter is forthcoming on records evidenced by any orders on behalf of the 11 OA.No.170/332/2020/CAT/Bangalore Bench disciplinary authority, a simple bald assertion in the reply statement is without any merit. The orders of the disciplinary authority should contain the answers in respect of the contentions raised by the applicant in this OA.
c) Applicant while drawing the attention of this Tribunal, submitted that no cause of action exists for issue of the charge memo as the charges themselves are factually not surviving at the time of issue of charge memo.
d) The applicant had made it clear that the Professional Tax and TDS deducted from the employees has been credited in time to the authority in respect of all the Centres except the centres in Andhra Pradesh and Telangana. In respect of these two states on account of State bifurcation of composite Andhra Pradesh into Andhra Pradesh and Telangana, new registration was required for depositing the Tax and the action was due in that connection at the end of those Sports Centres situated in these two states. As such it is the case of the applicant that there is no cause of action for charge No.1.
5. Heard the learned counsels for the parties.
6. The primary contention of the applicant is that the major penalty proceedings under Rule-14 of CCS(CCA) Rules 1965 have been initiated against him even though he had given his detailed explanation vide letter dated 18.05.2020 addressed to the Senior Director, SAI, NSSC, Bangalore.
7. As far as charge No.2 is concerned, the applicant has stated that the settlement of LTC claims in question was on provisional basis subject to 12 OA.No.170/332/2020/CAT/Bangalore Bench final approval by the competent authority and such an act did not amount to violating any Government guidelines as alleged. The officer who had claimed LTC had actually travelled by Air India flight only and had actually incurred a cost lower than the LTC-80 fare i.e. Rs.1,69,608/- as against LTC-80 fare of Rs.2,35,200/-. The reason for not booking the Air India ticket through the authorized agency of Air India or Balmer Lawrie was that the tickets had been sold out and were not available through the authorized booking agent.
8. The procedure prescribed under the CCS (CCA) rules to be followed by the Disciplinary Authority is provided under Rule 14 of CCS (CCA) Rules, 1965. These, inter alia, contain the following provisions, relevant to the case in hand:
"14. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof..
9. As provided under Rule 14 (2) of CCS (CCA) Rules, quoted above, the Disciplinary Authority is required to first form an opinion as to whether there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant. It is the 13 OA.No.170/332/2020/CAT/Bangalore Bench contention of the applicant that, in this case, the Disciplinary Authority, without forming an opinion on the alleged misconduct, and without considering his detailed replies on the subject, straightaway proceeded to conduct an inquiry, and appointed the Inquiry Officer and Presenting Officer for this purpose.
10.In order to ascertain the factual position relating to the process of initiating the disciplinary proceedings against the applicant, the records of the case file in original, maintained by the respondents were summoned. A perusal of the records in original indicated, that in the note sheet dated May 12, 2020 vide which the decision to initiate the disciplinary proceedings against the applicant was taken, the following points were recorded:
SPORTS AUTHORITY OF INDIA (PERSONNEL DIVISION) "No. SAI/Pers/1545/98(Pt.File) May 12, 2020 Kind attention is invited to the Confidential Note of DD (Vigilance) letter dated 24/04/2020 addressed to Capt. Ajay Kumar Bahl, Sr. Director, Bangalore on the subject various issues related to NSSC Bangalore. Attention is also invited to the Note No.12(1059)/2019-Vig.Cell/292 dated 24/04/2020 asking the Personnel Division to take administrative decision on the LTC Claim which is objected by AG. In this regarding following is placed for kind consideration:-
i) Competent authority has decided that the amount reimbursed on LTC may be recovered from the individual for which letter is already issued (copy at RHS Page No.4/C). Regarding the other two issues following points are placed for kind consideration:-
a) Shri M.S. Murali, Dy. Director (Accounts), Bangalore is retiring on 31/05/2020. The non-deposit of TDS and the Professional Tax is a major violation and a penalty can be imposed by concerned department on employer (i.e. SAI). It may be considered that the amount is recovered from the salary of the individual by the DDO and kept in the account of SAI. Even if the amount is paid after the observation of AG, the employer is liable to pay the penalty if it is imposed 14 OA.No.170/332/2020/CAT/Bangalore Bench by the concerned department. It is essential to take an urgent action in this regard, as Shri Murali is retiring on 31/05/2020. Once the person is retired and all his claims are released it will become difficult to recover which will result in a financial burden on Sports Authority of India.
b) As per the letter written by DD (Vigilance) the procedure is likely to take more time and in effect this will give way to Shri Murali to retire from the office.
c) In the case of LTC settlement also, there is a clear violation from the part of DDO.
In the above circumstances it is strongly recommended that disciplinary action may be initiated without further delay as the delay can cause financial loss to SAI.
Submitted please.
Sd/-
(12/5/2020) (M.S. Varughese) Director (Personnel & Coaching)"
We may issue chargesheet & suspend him.
Sd/-
(13/5/2020) (Rohit Bhardwaj) Secretary, SAI Pl. issue chargesheet.
Sd/- (13/5/2020) (DG, SAI)
11.As observed from the above notings, taken from the original records of the case, it is amply clear that the Director General, Sports Authority of India (DG (SAI), who, admittedly, is the Disciplinary Authority for the applicant, did not place on record his opinion on the issue. He simply ordered to issue charge sheet without recording any reason or forming any opinion in the matter after taking into account the replies submitted by the applicant which were available on record.
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OA.No.170/332/2020/CAT/Bangalore Bench
12.This is clearly arbitrary, and in complete violation of the provisions of Rule 14 (2) of CCS (CCA) Rules, where the Disciplinary Authority is required to first form an opinion, that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, before inquiring into or appointing any authority to inquire into the truth thereof. After considering the replies furnished by the applicant, as well as keeping in view the other connected documents available on record, the Disciplinary Authority is required to record the reasons and grounds on which he comes to the conclusion of conducting an enquiry to ascertain the truth of the alleged misconduct or misbehaviour.
13.Perusal of the record of the case produced in original by the respondents, reveals that there is merit in the contention of the applicant that the Disciplinary Authority did not form any opinion before ordering the issuance of chargesheet and conduct of inquiry. This is a mandatory requirement under Rule 14(2) of CCS (CCA) Rules, 1965. Without recording any such opinion, the Disciplinary Authority straight away decided to issue the impugned charge memo dated 19.05.2020 in order to enquire against the applicant under Rule 14 of CCS (CCA) Rule, 1965.
14.Keeping the above in view, the OA is allowed. The charge memo dated 19.05.2020 and the subsequent orders dated 23.06.2020, passed by the Director General, SAI, New Delhi (Disciplinary Authority) appointing the Inquiry Officer as well as the Presenting Officer are quashed. The respondents are directed to release the Pension and all other retiral benefits due to the applicant which may have been withheld on account of the 16 OA.No.170/332/2020/CAT/Bangalore Bench impugned orders within a period of one month from the date of receipt of these orders.
15.The Disciplinary Authority (DA) is further directed to re-examine the case denovo. After considering the detailed explanations given by the applicant, the DA shall first record its considered opinion under Rule 14(2) of CCS (CCA) Rules, 1965, as to whether there are any grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against the applicant. Subsequently, after forming and recording his opinion, he may, if deemed necessary by him, consider issuing orders for initiating an enquiry, as per the procedure prescribed under rule 14 of CCS (CCA) Rules.
16.Since the applicant has already retired on 31.05.2020, after attaining superannuation, the provisions under Rule-9 (2) (b) of CCS (Pension) Rules relating to initiating enquiry proceedings against a Government Servant after attaining superannuation, shall be applicable in the case. These rules inter alia contain the following provisions:
2(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
i. shall not be instituted save with the sanction of the President, ii. shall not be in respect of any event which took place more than four years before such institution, and iii. shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.17
OA.No.170/332/2020/CAT/Bangalore Bench
17. The Disciplinary Authority shall strictly follow these provisions under Rule 9(2)(b) before instituting any such departmental proceedings.
18. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER(ADMN) MEMBER(JUDL)
/ps/