Central Administrative Tribunal - Delhi
Bular Pal vs Govt. Of Nct Of Delhi on 4 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.1010/2011
RESERVED ON 28.03.2012
PRONOUNCED ON 04.05.2012
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
Bular Pal
S/o Sh. Sita Ram,
R/o B-69, Gali No.6, Laxmi Vihar,
Burari, New Delhi -84
Applicant
(By advocate: Sh. Yogesh Sharma)
VERSUS
1. Govt. of NCT of Delhi
Through the Chief Secretary,
New Secretariat, I.P. Estate,
New Delhi.
2. Principal Secretary (Revenue)/Divisional Commissioner, Delhi
Govt. of NCT of Delhi, Revenue Department(HQ)
(Vigilance Branch), 5 Sham Nath Marg, Delhi.
3. The Deputy Commissioner,
New Delhi District,
Govt. of NCT of Delhi,
12/1, Jam Nagar House, New Delhi 11.
Respondents
(By Advocate: Sh. N.K. Rastogi for Sh. Vijay Pandita)
::ORDER::
G.George Paracken,M(J) The applicant is aggrieved by the impugned orders dated 03.12.2009 and 18.11.2010 of the disciplinary authority and appellate authority respectively in the proceedings initiated against him under Rule 14 of CCS (CCA) Rules, 1965. Even though, the penalty of withholding of one increment without cumulative effect imposed upon him by the Disciplinary Authority was reduced to just a Censure, by the Appellate Authority, his contention is that he deserves no punishment at all in the present case.
2. The brief factual matrix are delineated here. While the applicant was working as a Driver with the then ADM (West) Shri Devesh Singh w.e.f. 24.04.2001, he was served with the Annexure-A7 Memorandum dated 16.5.2001. The charges leveled against the applicant were that he reported for duty late on 30.04.2001 and 02.05.2001 without prior intimation and authorization and when Sh. Devesh Singh asked him the reasons for the same, applicant mis-behaved with him and used abusive language. The aforesaid conduct on the part of the applicant was construed as dereliction of duty and violation of Rule 3(1) (ii) of CCS (CCA) Rules, 1964. Along with the said Memorandum, the Disciplinary Authority has also furnished the substance of misconduct/misbehaviour in respect of which inquiry was proposed to be held and a list of documents by which the aforesaid charges were proposed to be substantiated. However, there was no list of witnesses, enclosed with the said Memorandum, to prove the charges against him. During the inquiry proceedings, the charged official (applicant herein) requested the Enquiry Officer to supply him the certified copies of the attendance register and the log book of vehicle No.DL 4 CG 0004 for his perusal. On direction by the Inquiry Officer, the Presenting Officer requested the Disciplinary Authority to make those records available, but it was not done stating that they are not traceable. Later on, the Inquiry Officer after a detailed inquiry in the matter, submitted his report on 3.6.2006. He came to the conclusion that the charges framed against the applicant could not be proved due to the shortcomings created by the Charging Authority itself, as the said Authority has not supplied the requisite documents to the applicant. In his report, he also stated specifically that in the absence of the log book and the attendance register, the charges against the applicant that he reported late on 30.04.2001 and on 02.05.2001 can not be proved. Further, he has also stated that since there was no independent evidence against the applicant, the charges against him that he misbehaved with the ADM (West) and used filthy language also can not be proved.
3. The Disciplinary Authority, however, did not agree with the aforesaid findings of the Inquiry Officer. He has, therefore, issued Annexure A-4 memorandum dated 31.08.2007 stating that the Inquiry Report suffers from the following infirmities:-
1. Charged Official has defended himself by asking number of items like log book and the attendance register. Out of these two documents, log book is remained by himself only and cannot be cited as defense. As regards attendance register, his duty is of mobile nature and hence he should be first signing the attendance register before proceeding on duty. Both the documents are irrelevant to prove his innocence. Besides, there is likelihood that the interested party would play truant with these documents. So non production of these documents cannot be made an adequate defense of the C.O.
2. The Inquiry Officer has failed to call for appropriate document or witnesses. He failed to call upon the complainant and passed this on to the lackadaisical working of officials.
3. Inquiry Officer has failed to enquire into the charges of misbehavior, which for a government servant amounts to gross misconduct and insubordination.
4. Inquiry Officer has failed to either get the denial or establish disproval of the abusive language used by the C.O. Non existence of an independent witness does not automatically remove the onus charge, against the C.O. Inquiry Officer did not satisfy himself by ascertaining the circumstantial facts of the allegations, wherein he has clearly failed.
4. The Disciplinary Authority has, therefore, rejected the Inquiry Officers report and considered it necessary to award appropriate punishment to the applicant in the interest of public administration and office discipline. The applicant was also given opportunity to make a representation against the said memo within 10 days. Applicant in his representation against the aforesaid memo of the Disciplinary Authority, dated Nil submitted that since his joining as a Driver in the office of the DC(West), he was regularly signing the attendance register kept in the Administrative Branch before he was proceeding on duty everyday. He has also submitted that on 26.04.2001, Shri Devesh Singh, ADM(West) had asked him to fill up his private journeys as journeys for official purposes which he did not agree. As a result, Shri Devesh Singh threw the log book upon him and also did not sign the log book for any of the details of journeys performed by him or on his behalf on the dates other than 25.04.2001 also.
5. Thereafter, the Disciplinary Authority imposed upon the applicant the penalty of withholding of one increment without cumulative effect. The applicant had made an appeal against the said penalty order on 07.01.2010 to the Appellate Authority i.e. Chief Secretary, Govt. of NCT of Delhi. His contention was that on 24.04.2001, when the then ADM (West)-Sh. Devesh Singh handed over the keys of the vehicle to him at 33, Rajpur Road, Delhi, the meter reading was noted down by him before starting the vehicle in the morning. After the journeys, in the evening at 6.00 p.m., in the Office premises of DC (West) at Rampura, as per verbal directions of Sh. Devesh Singh, the keys of the said vehicle were handed over to Sh. Saudhan Singh, a Driver of the DC (West) office. However, the details of the meter reading/journeys made in the said vehicle on 24.04.2001 for each destination were accordingly noted down by him in the connected log-book. Further, he has submitted that Sh. Devesh Singh objected to the 148 kms unofficial journeys in the log book during the period from 24.04.2001-26.04.2001. He has, therefore, submitted that the entire charge was at the instance of Sh. Devesh Singh. He has also pointed out that in spite of his requests, none of the relevant documents were provided to him during the enquiry and the Inquiry Officer himself has admitted that the applicant was not provided with the documents. The Appellate Authority [Principal Secretary (Revenue)] after consideration of the appeal, reduced the penalty to that of Censure. While doing so, the Appellate Authority stated in his order that he had gone through the records and proceedings of the case and heard the applicant in person and thereafter he came to the conclusion that the conduct of the Appellant (applicant herein) was not entirely blameless. However, taking a lenient view in the matter the penalty of Censure was imposed upon him.
6. The applicant has challenged the aforesaid orders of the Disciplinary Authority as well as Appellate Authority on various grounds. One of the grounds taken by the applicant was that the charges itself were not sustainable in the eyes of law as they are vague. Secondly, he has submitted that the inquiry was conducted in total violation of the provisions of Rule 14 of CCS (CCA) Rules, 1965 and against the principles of natural justice, as the copies of the documents relied upon have never been supplied to the applicant. Again he has submitted that there was no prosecution witness at all in the case. Further, he had never been supplied with the copies of the complaint nor the complainant was called as witness in the inquiry. Again the Presenting Officer himself had admitted that there was no evidence against the applicant and the Inquiry Officer has held that the charges have not been proved.
7. Learned counsel for the applicant, Shri Yogesh Sharma, has also challenged the disagreement note of the Disciplinary Authority. In this regard, he has referred to Rule 15(2) of the CCS (CCA) Rules, 1965 and submitted that the disagreement note was not based on any evidence. He has also stated that because of the long pendency of these proceedings since 2001, the applicant has suffered irreparably and he was deprived of his promotions/senior scale from the due dates. According to him, there was inordinate delay of eight years, even for the completion of the inquiry and on that ground alone, the impugned orders are liable to be quashed and set aside.
8. The respondents have filed their reply stating that the standard of proof required in departmental proceedings is of pre-ponderance of the probability and not proof beyond reasonable doubt as held by Apex Court in a catena of cases. They have also submitted that the scope of interfering with an inquiry by way of judicial review is very restricted. Further, contention of the respondents is that this Tribunal cannot re-appreciate the evidence as held by the Apex Court in a number of cases.
9. As regards merits of the case, they have submitted that there was a written complaint by the then ADM who was a senior officer of the department and, therefore, no other witness was necessary. They have also submitted that the Disciplinary Authority has applied its mind before issuing the memo disagreeing with the findings of the Inquiry Officer. They have further denied the contention of the learned counsel for the applicant that the orders of the Disciplinary Authority as well as the Appellate Authority are without any reasons and, therefore, non speaking. Further, their contention is that no promotion/senior grade scale can be granted to a Govt. servant during the pendency of the proceedings and during the currency of the punishment. They have also stated that the Appellate Authoritys order is also cannot be faulted as it has applied its mind and reduced the punishment to censure.
10. We have heard learned counsel for the applicant as well as learned counsel for the respondents. It is seen that the first article of charge against the applicant is that he had reported for duty late on two days i.e. on 30.04.2001 and on 02.05.2011. Unless a Govt. servant is a habitual late comer or if he had on previous occasions also attended duty late in spite of warning and he did not improve his conduct, just two days late coming cannot ordinarily be termed as a misconduct which attracts provisions of the CCS(CCA) Rules, 1965 to impose even a minor penalty against him. The second charge is that on 02.05.2001 when he reported for duty late, the ADM (West) asked him the reasons for the same but he misbehaved with him and used abusive language. Both the articles of charges have been framed against the applicant on the complaint of Shri Devesh Singh, the then ADM (West). The Disciplinary Authority sought to prove those charges against the applicant on the basis of just two documents, namely, a written complaint dated 02.05.2001 made by Shri Devesh Singh, ADM(West) to Deputy Commissioner(West) regarding the late coming of the applicant on 30.04.2001 and 02.05.2001 and his misbehavior received in the personal branch of the Deputy Commissioner (West) and an order dated 01.05.2001 posting him with the ADM(West). It is quite strange that when the very basis of the departmental proceedings initiated against the Applicant was the written complaint made against him by Shri Devesh Singh, ADM(West) he has not been made a prosecution witness in the departmental proceedings. Since he has made the complaint, so long as he was available, it was for him to prove the allegations made in it before the Inquiry Officer. On the other hand, the explanation given by the disciplinary authority of having not chosen to list him as a prosecution witness is much more strange. According to it, when a senior officer in the rank of ADM (West) has made the complaint, no other witnesses were required. Such a decision of the Disciplinary Authority in Disciplinary proceedings is absolutely against the rule of law and due process of law.
11. Another important aspect of the case is that in the departmental proceedings, it is a basic principle of natural justice that the delinquent official should have an opportunity to cross examine the witness deposing against him. When no witness have been listed and no such deposition was made, we wonder, how the charges could be proved. A mere complaint by an officer, however, senior to the delinquent official, may be, shall not be the sole basis for awarding a punishment to him unless the contents of the complaint are proved by way of examination and cross examination of witnesses in accordance with the principles of natural justice held in the departmental proceedings. For this reason alone the charge memo dated 16.05.2001 issued to the applicant, itself is liable to be quashed and set aside.
12. In the present case the complaint made by Shri Deves Singh, the then ADM was a listed document but there was not a single witness listed leaving alone Shri Devesh Singh to prove the aforesaid complaint. The principle is that the fact sought to be proved must be supported by the statements made in the presence of the person against whom the inquiry is held and the statement made behind the back of the person charged are not to be treated as substantive evidence.
13. As held by the Apex Court in Central Bank of India Ltd., New Delhi v. Shri Prakash Chand Jain, 1969 (1) SCR 735, that an important basic principle of natural justice is that the statement made behind the back of the person charged are not to be treated as substantive evidence. The relevant part of the said judgment reads as under:-
These views expressed by this Court, in our opinion, bring out what was meant when this Court held that findings recorded by an Enquiry Officer must be supported by legal evidence. The evidence, as indicated in these cases, should consist of statements made in the presence of the workman charged. An exception was envisaged where the previous statement could be used after giving copes of that statement well in advance to the workman charged, but with the further qualification that that previous statement must be affirmed as truthful in a general way when the witness is actually examined in the presence of the workman.
14. The Jaipur Bench of the Tribunal also in Bhagwan Singh Vs. Union of India and Ors., 2005 (2) CAT 78 held that if the inquiry officer has relied upon some of the statements of a person and if he is not examined in the presence of the applicant giving him an opportunity to cross examine him, it cannot be held that there was any admissible evidence in support of the charge against the applicant. The relevant part of the said order reads as under:-
20. The applicant was supplied some of the documents demanded by him but he was not supplied the remaining documents i.e. sketch of site of derailment, statements of witnesses during the MJE and detailed readings of the derailed coaches. We find that the Inquiry Officer has relied upon some of the statements taken in the MJE especially that of the Driver Shri Abdul Hameed. Shri Hameed ws also not examined in the presence of the applicant and giving an opportunity of corss-examination to him did not arise. The help on out that in this case there was no listed witness and no witness was examined by the Enquiry Officer in presence of the applicant. It is equally true that none of the documents was proved by any witness and therefore the same can not be read as evidence. Thus there is no admissible evidence in support of the charges against the applicant.
15. Coming to the inquiry proceedings, the delinquent official had sought certified copies of the attendance register and log book of vehicle No. DL4CG 0004 relating to the dates in question to prove his innocence. The Inquiry Officer wrote to the Presenting Officer to make those documents available, as they were found to be relevant documents. The Presenting Officer wrote to the Disciplinary Authority to make them available to present it to the Inquiry Officer or to supply to the delinquent official. It is on record that the Presenting Officer requested the SDM (HQ), Office of the DCM, 10 times to make available those documents. After repeated reminders, the response from the SDM (HQ) was that the log-book of vehicle No.DL4CG 0004 for the period from 01.04.2001 to 01.05.2001 was not traceable in records. We do not understand why the log book for the aforesaid period alone is missing from the official record. Non-production of the said documents is of particular significance when the counter allegation of the delinquent official was that the SDM (West) Shri Devesh Singh has been misusing the official vehicles for his private uses and his complaint against the applicant was false and to pre-empt any action against him for such misuse which has come on record in the log book. As held by the Apex Court in Govt. of Andhra Pradesh & Ors. Vs. Venkata Rayudu (2007) 1 SCC 338, if any material is sought to be used, then copies of that material should be supplied.
16. Now, we shall consider the Inquiry Report. The Inquiry Officer has clearly held that for the charges framed against the accused Government servant could not be proved due to the shortcomings created by the Charging Authority itself. He elaborated in his report that the charges against the applicant that he reported late for duty on 30.04.2001 and on 02.05.2001 could not be proved in the absence of the corresponding log book, attendance register or some other supporting documents by the prosecution. As regards the charge of using filthy language by the applicant against the ADM (West) is concerned, it also could not be proved because there was no independent evidence against the applicant. However, the Disciplinary Authority did not agree with the aforesaid findings of the Inquiry Officer. In his memo dated 31.08.2007, the Disciplinary Authority had stated that he was inclined to reject the findings in the Inquiry report and to consider awarding appropriate punishment on the applicant in the interest of public administration and office discipline. The applicant made a very detailed representation against the said memo. However, the Disciplinary Authority vide impugned order dated 03.12.2009 held that the misconduct of the applicant was of grave nature but he wanted to grant him an opportunity to improve his conduct in future. It has, therefore, imposed the punishment of withholding of one increment without cumulative effect upon the applicant to meet the ends of justice. The Disciplinary Authority has not mentioned anywhere in its order that the misconduct against the applicant was proved. The Disciplinary Authority has also not given any reason as to how he came to the conclusion that the applicant was guilty of the misconduct in spite of the report of the Inquiry Officer that the charges have not been proved. Merely saying that the applicant was guilty of the misconduct and the charges were grave, the Disciplinary Authority cannot impose the punishment upon a Govt. servant. There should be cogent reasons for imposing any such penalty. As held by the Apex Court in the case of Mahavir Prasad Vs. State of UP, AIR 1970 SC 1302 that recording of reason in support of a decision taken by a quasi judicial authority, is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fantasy or reached on account of policy or expediency.
The relevant part of the said judgment reads as under:-
7. Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.
17. The Appellate Authority has also while reducing the punishment to that of Censure which is the most minor among the minor penalties have not given any reason for imposing the said penalty upon the applicant. The Appellate Authoritys observation in its order that the conduct of the Appellant was not entirely blameless, is very vague. It should have stated clearly to what extent the appellant was blameworthy.
18. In view of the above facts and circumstances of the case, we are of the considered view that this is a case of no evidence and, therefore, the orders of the Disciplinary Authority and Appellate Authority are perverse. As there was no evidence against the applicant, he should be discharged rather than imposing some punishment for the sake of imposing punishment. We also deprecate the attitude of the Disciplinary Authority that no evidence in this case is required because the complaint was made by a senior officer having the rank of ADM(West). In the result we allow this OA. The impugned orders of the Disciplinary Authority as well as the Appellate Authority are quashed and set aside. The respondents shall pass appropriate orders withdrawing the penalty of Censure awarded to the applicant by the Appellate Authority within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Sudhir Kumar ) ( G. George Paracken )
Member(A) Member(J)
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