Central Administrative Tribunal - Ernakulam
K.Sureshkumar vs The Comptroller & Auditor General Of ... on 1 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 633 of 2010
Monday, this the 1st day of August, 2011
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
K.Sureshkumar, S/o.Krishnankutty, Senior Auditor,
Office of the Principal Accountant General (Audit),
Thrissur Branch. Residing at Poomala House,
Peringavu P.O., Thrissur - 680 018. ..... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
V e r s u s
1. The Comptroller & Auditor General of India,
Government of India, New Delhi.
2. The Deputy Accountant General (Admn), Office of the
Principal Accountant General (Audit) Kerala,
Thiruvananthapuram.
3. The Principal Accountant General (Audit) Kerala,
Thiruvananthapuram.
4. Shri.V.Ravindran, Principal Accountant General (A&E),
Andhra Pradesh, Hyderabad.
5. Shri.S.Nagalsamy, The Principal Accountant
General (Audit) Kerala,
Thiruvananthapuram. ..... Respondents
(By Advocate - Mr. V.V.Asokan)
This application having been heard on 1st August 2011, the Tribunal
on the same day delivered the following:
O R D E R
By Hon'ble Mr. Justice P.R. Raman, Judicial Member -
Disciplinary action was taken against the applicant on the following charges:
"ARTICLE I That the said Shri K. Sureshkumar, while functioning as Senior Auditor, in the office of the Principal Accountant General (Audit) Kerala, Branch Office, Thrissur participated in the demonstration/dharna held on the forenoon of 17.4.2007 in the Branch Office in connection with 'One Rank One Pension' issue. By participating in the demonstration held in the office premises on the aforesaid date, Shri K. Sureshkumar, Senior Auditor failed to maintain devotion to duty and violated the provisions contained in Clauses (ii) of Sub rule 1 of Rule 3 of CCS (Conduct) Rules, 1964 which states that every government servant shall at all times maintain devotion to duty.
ARTICLE II That the said Shri K. Sureshkumar, while functioning in the aforesaid office and in the aforesaid capacity, participated in the demonstration/dharna held on 17.4.2007 in connection with the service matter of another employee. Thus he violated the provisions contained in clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964 which states that no government servant shall resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant.
ARTICLE III That the said Shri K Sureshkumar, while functioning in the aforesaid office and in the aforesaid capacity, participated in the demonstration/dharna held on 17.4.2007 disobeying the instructions of the Administration and by availing leave on false grounds thereby acting in a manner unbecoming of a Government servant violating clause (iii) of Sub rule 1 of Rule 3 of CCS (Conduct) Rules, 1964 which states that every Government servant shall at all times do nothing which is unbecoming of a Government servant."
2. The same is supported by the following statement of imputation of misconduct:-
"ARTICLE I As per report received, the said Shri K. Sureshkumar, had participated in the demonstration/dharna held in the office premises of both the offices of the Accountant General (A&E) Kerala and the Principal Accountant General (Audit) Kerala at Branch Office, Thrissur on the forenoon of 17.4.2007 in connection with 'One Rank One Pension' issue. He availed = day casual leave on the forenoon of 17.4.2007 on the ground of domestic affairs, whereas he participated in the demonstration/dharna as aforesaid. By availing = day casual leave by giving false reasons and participating in the aforesaid activities in the office premises on the aforesaid date and time, the said Shri K Sureshkumar, Senior Auditor failed to maintain devotion to duty and violated the provisions contained in Clauses (ii) of Sub Rule 1 of Rule 3 of CCS (Conduct) Rules, 1964.
ARTICLE II As stated in the aforesaid Article, the said Shri K Sureshkumar, deserted his duty after availing = day casual leave giving false grounds and participated in the demonstration/dharna held on 17.4.2007 in connection with the service matters of another employee. Thus the said Shri K. Sureshkumar, violated the provisions contained in clause (ii) of Rule 7 of CCS (Conduct) Rules, 1964, which states that no Government servant shall resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant.
ARTICLE III The Administration Section of the Office of the Principal Accountant General (Audit) Kerala issued a circular dated 16.4.2007 bringing to the notice of all Audit staff that participating in Dharna would be against the Central Civil Services (Conduct) Rules 1964 and absence from work for participating in such dharnas is liable to be dealt with under the provisions of Service Rules. All audit staff were advised to refrain from participating in the above said dharna on 17.4.2007 through the said circular. As stated in Article I above, the said Shri K Sureshkumar, deserted his work place and participated in the demonstration/dharna held on 17.4.2007 disobeying the instruction of the Administration issued in Circular dated 16.04.2007. Shri K Sureshkumar, was warned vide Order No. C.Cell/Audit/10 dated 05.04.2007 not to indulge in such activities and further directed to refrain from such activities in future. By participating in the demonstration/dharna held on 17.4.2007 disobeying the instructions of Administration issued vide circulated dated 16.4.2007 and also the warning issued to him vide order dated 5.4.2007, Shri K Sureshkumar, acted in a manner unbecoming of a Government servant violating clause (iii) of sub rule 1 of Rule 3 of CCS (Conduct) Rules, 1964."
3. He denied the charges and an inquiry officer was appointed to hold an inquiry who found that the applicant is guilty of the only charge of having participated in the demonstration. Inquiry report is Annexure A-7 produced in the case and the conclusion reached by the inquiry officer is as follows:-
"The charge that Shri K. Sureshkumar has participated in the dharna/demonstration stands admittedly proved. In the absence of any evidence either oral or documentary, the remaining charges in the charge sheet or in the imputation of charges cannot be established beyond doubt."
4. The disciplinary authority by Annexure A-1 order agreed with the said finding but however found that participation in the Dharna is in violation of the conduct rules and therefore, amounts to misconduct. He found as follows:-
"The undersigned though not in agree with the contention of the Inquiry Officer, has not made any disagreement with the Inquiry Report. However, the undersigned is of the view that participation of the charged official in the dharna/demonstration held on 17.4.2007 was in violation of the Conduct Rules and his act was an unbecoming of a government servant."
This was confirmed in appeal. Hence, this OA.
5. The short point for consideration is as to whether the proved charges that he participated in the Dharna amounts to misconduct. This issue is no longer re-integra since in a connected OA No. 895 of 2009 we have already held that mere participation in the Dharna after office hours by itself may not amount to misconduct in the light of the decision of the Apex Court in AIR 1962 SC 1166 - Rameshwar Prasad & Ors. Vs. State of Bihar & Anr.
6. The charge which has been found proved in Article 1 is the very participation in the Dharna on the forenoon of 17.4.2007 in connection with one rank one pension issue and the statement of allegations Annexure-II of the charge sheet further shows that he availed casual leave on the forenoon of 17.4.2007 on the ground of domestic affairs and he participated in the demonstration. By availing half day casual leave by giving false reason and by participating in the aforesaid activities he failed to maintain devotion of duty and violated the provisions contained in Clause (ii) of Sub Rule 1 of Rule 3 of Conduct Rules. Even though participation in the Dharna by itself after availing casual leave has been held by us in OA No. 895 of 2009 as not amounting to any misconduct we had sustained in the very same judgment that availing casual leave giving false reason is certainly a misconduct on which we did not interfere.
7. In the circumstances we hold following our decision that mere participation in the Dharna after availing casual leave will not amount to misconduct. However, other allegations that he has availed leave by giving false reason though may be a misconduct, no specific charge is levelled against the applicant on that score unlike the case in OA No. 895 of 2009. Hence, the same is left open.
8. In the result, the OA is allowed as the issue under consideration is only regarding as to whether mere participation in the Dharna amounts to misconduct or not. The impugned orders are accordingly quashed. No order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"