Central Administrative Tribunal - Delhi
Shri Deepak Sinha, General Manager ... vs Union Of India (Uoi) Through The ... on 1 February, 2008
ORDER
1. By this OA, applicant has challenged order dated 15.02.2006 (Page 21) whereby penalty of stoppage of one increment for one year without cumulative effect has been imposed on the applicant. He has claimed all the consequential benefits namely, entertaining his promotion at par with his juniors and other consequential benefits.
2. It is stated by the applicant that vide Memorandum dated 15.01.2007 (Page 25 at 27), applicant was served with a charge sheet with the following allegations :
Article-1 That the said Sh. Deepak Sinha, while functioning as TDM Mathura during the period 1997-98 and while deciding the case of hiring a building for Telephone Exchange at Sahpau in Mathura SSA committed following serious irregularities in as much as he, Consented the proposal for entering into a contractural obligation with Sh. Navin Prakash Shukla for constructing a new building on a vacant plot of land with the assurance that same would be taken on rent by the Department, which was in violation of departmental norms of taking ready made building only, on rent for urgent requirement, if any.
Failed to include an officer of Civil Wing in Fair Rent Assessment Committee which was mandatory for fixing the rent of Rs. 6000/- of the proposed building of Sh. Navin Prakash Shukla.
Failed to give advertisement in the local newspapers for hiring a building on rent at Sahpau.
Thus by his above acts, the said Sh. Deepak Sinha failed to maintain devotion to duty and acted in a manner unbecoming of a Government Servant, thus violated the provisions of Rule 3 (I) (ii) and (iii) of CCS Conduct Rule 1964.
Article-II That during the aforesaid period and while functioning as TDM, Mathura, Sh. Deepak Sinha approved steep enhancement in the rent of existing building from Rs. 500/-pm (for 570 sq. ft.) to to Rs. 5500/-pm (for 1300 Sq.ft.(approx) ) at the recommendation of FRAC which did not include an officer of Civil Wing with malafide intention without ascertaining the prevailing rent of the building in that area, thereby resulting in undue gain to the owner of the existing Telephone Exchange Building and corresponding recurring loss to the Department.
Thus, by his above acts, the said Sh. Deepak Sinha failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government Servant, thus violated the provision of Rule 3 (I) (i), (ii) and (iii) of CCS Conduct Rules, 1964.
3. After examining the witnesses, Inquiry Officer exonerated him on both the charges by submitting his report on 19.8.2004 (Page 63 at 66). It is submitted by the applicant that the Disciplinary Authority had accepted this enquiry report because no disagreement note was given by them, yet on the recommendation of Central Vigilance Commission (hereinafter referred to as CVC) and Union Public Service Commission (hereinafter referred to as UPSC) (page 74 and 24), memorandum dated 26.10.2004 was issued to the applicant giving disagreement note calling upon the applicant to give his representation (page 72). Applicant gave a detailed reply on 25.01.2005 (page 35) but without considering any of the point raised by the applicant, respondents issued order dated 15.2.2006 imposing the punishment as mentioned above.
4. This order is challenged by the applicant on the ground that 1) this is absolutely a non speaking order inasmuch as Disciplinary Authority has neither considered the contentions raised by the applicant nor has applied its own mind but has simply reproduced the suggestion made by CVC and UPSC, therefore, it is liable to be dismissed on this ground alone, 2) the second charge against the applicant was that he does not include an officer of Civil Wing, Charge in Sub Clause (ii) of Article-1 was same. If the respondents have accepted that Charge-II is not proved sub Clause (ii) of Charge-1 also has to be taken as not proved. He also submitted that other Committee Members were also charged but they have let off while applicant has been given the punishment which has sealed his career. He also submitted that previously also, no civil wing officer has been associated, in any case , in the instant case building was never completed so the question of associating civil wing officer would not be relevant because his role would have come only after the building was completed. To buttress his argument, he relied on the statement of SW-2 at Page 155. He also submitted that since neither building was completed nor it was taken on rent, it had caused no loss to the government, so there is no allegation of corruption or moral aptitude. Therefore, no misconduct can be said to have been committed by the applicant. Therefore, the OA may be allowed.
5. He relied on the judgment of A. K. Goel v. Union of India and Ors. in OA No. 577/2005 decided by CAT, Lucknow Bench on 8.06.2007 (page 166 at page 177, Para 29) and judgment of Hon'ble Supreme Court in the case of State Bank of India and Ors. v. D. C. Aggarwal and Anr. and also . Counsel for applicant submitted that at best it may be termed as an error of judgment but cannot be termed as misconduct by any stretch of imagination because even if he agreed for some rent, the occasion never came to give the same as building was not yet completed.
6. Respondents have opposed this OA. They have taken a preliminary objection to the maintainability of the OA on the ground that this OA is premature and inasmuch as applicant had filed Review Petition on 15.2.2006 under CCS (CCA) Rules to the President which is still under consideration and has filed the present OA without awaiting the outcome of his Review Petition.
7. On merits, they have submitted that Disciplinary Authority has rightly disagreed with the findings of the Inquiry Authority. Consultation with UPSC is required under Article 320 (3) ) of the Constitution read with Rule 5(i) (a) of UPSC (Exemption from Consultation) Regulations 1958 as well as statutory requirement under Rule 15 of CCS (CCA) Rules 1965, similarly CVC is also required to be consulted before passing the orders, it was only after considering the material which had come on record and the advise of CVC and UPSC, Disciplinary Authority decided to disagree with the findings of the Inquiry Authority to the extent that Clause (i) and (ii) of Article 1 stood proved with best of oral and documentary evidences adduced during the enquiry. Clause (iii) of Article-1 was held as not proved so was Charge-II held not proved. That is the reason why only a minor punishment has been given to the applicant. Advise of CVC was provided to the applicant along with memo dated 26.10.2004, therefore, applicant had full opportunity to represent against the same. As far as UPSCs advise is concerned, he relied on the judgment given by Hon'ble Supreme Court in the Civil Appeal No. 2067/07 (arising out of SLP(C) No. 1165/05 in the case of Union of India and Ors. v. T. v. Patel, and Rule 32 of CCS (CCA) Rules 1965. 8. As far as other members of the Committee are concerned, they have explained that Shri H. S. Sharma and Puran Lal were retired on attaining the age of superannuation during the disciplinary proceedings, as such, only penalty which could be imposed on them was under Rule 10 of CCS (CCA) Rules 1972. Since the misconduct could not be said to be grave, only the warning was imposed of cut in pension and this plea was conveyed to them. Therefore, it cannot be said that applicant has been discriminated again. They have referred to CVC's advice as against the other persons which are annexed at Page 117. On the question of non application of mind, counsel for respondents submitted that since authorities had accepted the advise given by CVC and UPSC which was but and unnecessary to the Disciplinary Authority to give his own views and reiterated the same facts. He thus, prayed that there is no merit in the OA. The same may accordingly be dismissed.
9. We have heard both the counsel and perused the pleadings. Since it is specifically stated by the respondents that the applicant had already filed Review Pettiion before the President which is still under consideration, it will not be proper for us to make any comment at this stage because that would be prejudging the issue and it may affect either party in the Review Petition of the applicant. However, It is noted from the respondents reply that review was filed as back as on 15.6.2006, OA was filed on 7.02.2007 and OA was admitted on 27.2.2007. May be that is why review was not decided by respondents. Anyway since review petition is still pending, this OA is disposed of without going into the merits of this case by directing the respondents to expedite the Review Petition of the applicant and to decide the same by passing a reasoned and speaking order within a period of 6 weeks from the date of receipt of a copy of this order under intimation to the applicant.
10. With the above directions, this OA stands disposed of. No order as to costs.