Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 8 May, 2012
1 OA.484/2011 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. O.A.No.484/2011. Dated this Tuesday the 8th Day of May, 2011. Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A). Mr.Amarappa Hussenappa, PER No.100314, Ex.LDC, Ordnance Factory, Ambarnath, R/at: 'H' Type 87/5, Ordnance Estate, Ambarnath-421 502, Dist.Thane. ..Applicant. ( By Advocate Shri S.V. Marne ) Versus 1. Union of India, through the DGOF/Chairman, Ordnance Factory Board, 10-A, Auckland Road, Kolkata-700 001. 2. The Sr. General Manager, Ordnance Factory, Ambarnath-421 502 (Thane Dist.) ..Respondents. ( By Advocate Shri R.R. Shetty ). O R D E R
Per : R.C. Joshi, Member (A).
The Applicant in the present Original Application has impugned order dated 20.06.2009 and order dated 31.03.2011.
2. Briefly, the Applicant was imposed the penalty of compulsory retirement with effect from 20.06.2009 although the Inquiry Officer had held that the charges against the Applicant were not 2 OA.484/2011 proved. The Disciplinary Authority had asked the Inquiry Officer to review his finding and after reconsideration of the matter, the Inquiry Officer had again opined that the charges were not established. The Disciplinary Authority, however, disagreed with the Inquiry Officer and after issue of the show cause notice to the Applicant held that the 3 charges levelled against the Applicant are proved and imposed the penalty of removal from service which was reduced in appeal to compulsory retirement.
3. The learned counsel on behalf of the Applicant in the pleadings has stated that the Applicant was initially appointed in Ordnance Factory, Ambarnath in the post of Lower Division Clerk (LDC) on 23.12.1983 and was promoted to the post of Upper Division Clerk (UDC) on 10.10.2002. The Applicant was chargesheeted vide dated 25.02.2008 in which three Articles of Charge were levelled against the Applicant, which are listed hereinbelow for convenience: Article of charge-I That the said Shri Amarappa Husenappa while functioning as LDC during the period from 09.08.2005 in Ordnance Factory, Ambarnath is alleged to have committed an act of misconduct in that he had accepted a sum of Rs.500/-from Shri D.K. Paste, T.No.2589/QCA to settle his problem of changing his recorded date of birth in Service documents. The above act on 3 OA.484/2011 the part of Shri Amarappa amounts to lack of absolute integrity & act of unbecoming of a Govt. servant violating Rule 3(1)(iii) of CCS (Conduct) Rules 1964.
Article of charge-II That the said Shri Amarappa Husenappa while functioning as LDC/EMS during the period from 09.08.2005 in Ordnance Factory, Ambarnath is alleged to have committed an act of misconduct in which short payment was reported in IEs wages for the month of December 2007 paid in January 2008. When he was asked by the concerned IEs of EMS, he has used abusive language to Shri P.D. Ambre, T.No.5976/EMS and other workers on 09/01/2008. It is further alleged that Shri Amarrapa, LDC/EMS is in the habit of using abusive language in the past and HOS/EMS has counseled and warned him to improve his behavior. He has not shown any improvement and acted in a manner unbecoming of a Govt. Servant violating Rule 3(I)(iii) of CCS (Conduct) Rules 1964.
Article of charge-III That the said Shri Amarappa Husenappa while functioning as LDC/EMS during the period from 09.08.2005 in Ordnance Factory, Ambarnath is a habitual offender for lack of integrity and conduct of unbecoming of a Govt. servant. Despite penalties imposed, there is no improvement in his behavior and allegedly he continues to conduct contravening Rule 3(I)(i) & (iii) of CCS(Conduct) Rules 1964.
4. The Applicant submitted his reply to the charge-sheet on 07.02.2008 and an Inquiry Officer was appointed to conduct inquiry. All Prosecution Witnesses were examined in the departmental inquiry and were cross examined by the Applicant and the 4 OA.484/2011 Inquiry Officer submitted his report dated 28.01.2009 holding that none of the 3 charges levelled against the Applicant could be proved.
5. The Disciplinary Authority thereafter asked the Inquiry Officer to submit a fresh report observing vide letter dated 22.02.2009 that the procedure laid down in the Rules had not been followed in as much as the Inquiry Officer has:
a) not noted when the case for the disciplinary authority has been closed;
b) not given an opportunity to the accused Government servant to state his defence orally or in writing as required under Rule 14(16) of the CCS (CCA) Rules and
c) not given the accused Government servant an opportunity to produce evidence on his own behalf in his defence as required under Rule 14(17) of the CCS (CCA) Rules. This has resulted in denial of reasonable opportunity to the accused Government Servant.
6. On the above mentioned grounds, the case was remitted by the Disciplinary Authority to the Inquiry Officer and the Inquiry Officer was asked to submit a fresh report. The order issued by the Disciplinary Authority dated 22.02.2009 is annexed at Annexure A-7. The Applicant submitted his representation vide dated 26.02.2009 regarding the said action of the Disciplinary Authority and alleged that the management was trying to pressurise the Inquiry Officer (Annexure A-8). Accordingly, the Inquiry Officer resubmitted his report stating 5 OA.484/2011 that the report dated 28.01.2009 was resubmitted after completing further inquiry to the Disciplinary Authority vide dated 24.04.2009. It was inter-alia stated therein that :a) case for the Disciplinary Authority has been closed on 04.04.2009 and recording that the Applicant was satisfied with proceedings and he did not wish to avail the opportunity under Rule 14(17) of CCS (CCA) Rules (Annexure A-9). The Disciplinary Authority thereafter disagreed with the finding of the Inquiry Officer and a show cause notice dated 27.05.2009 was issued to the Applicant calling for his explanation (Annexure A-10). The Applicant submitted his reply to the show cause notice vide dated 05.06.2009 (Annexure A-11). The Disciplinary Authority thereafter passed an order dated 20.06.2009 holding that the Applicant was guilty of the 3 charges and imposed the penalty of removal from service on 20.06.2009 (Annexure A-1). The Applicant preferred an appeal dated 11.07.2009 (Annxure A-12). The Appellate Authority granted personal hearing to the Applicant on 12.11.2009. During the course of personal hearing, the Applicant submitted reply dated 12.11.2009 against the finding of the Disciplinary Authority (Annexure A-15). The Appellate Authority vide order dated 31.03.2011 held that Article I of the Charge was not conclusively 6 OA.484/2011 established. However, the Appellate Authority held that the Charge No.II was proved on the principles of preponderance of probability and also added that there is nothing to be proved in respect of Charge No.III. The Appellate Authority, therefore, reduced the penalty from removal from service to that of compulsory retirement with effect from 20.06.2009.
7. The Applicant has sought the following reliefs:
a. To call for the records of the case from the Respondents and after examining the same, quash and set aside the impugned orders dated 20.06.2009 and 31.03.2011 with all consequential benefits with further directions to the Respondents to reinstate the Applicant in service w.e.f. 20.06.2009 with all consequential benefits.
B. Costs of the application be provided for.
c. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed.
8. The learned counsel on behalf of the Respondents in the pleadings has stated that the Applicant was issued the charge-sheet containing three charges vide dated 25.02.2008 under Rule 14 of CCS (CCA) Rules, 1965. An Inquiry Officer was appointed, who after completing the inquiry submitted his report dated 28.01.2009, wherein he concluded that the charges under Article I, II and III in Charge Memorandum dated 25.02.2008 were not 7 OA.484/2011 established. It is further mentioned that on perusal of inquiry report vis-a-vis record of proceedings, it was found that the inquiry was not concluded in conformity with the laid down procedures and the case was, therefore, remitted to the Inquiry Officer vide order dated 22.02.2009 for further inquiry under Rule 15(1) of the CCS (CCA) Rules from the stage provided in Rule 14(16) of CCS (CCA) Rules.
9. It is further contended that the Inquiry Officer after further inquiry submitted his report dated 24.04.2009 without any fresh findings and returned the previous report dated 28.01.2009 wherein it was held that the charges made in the Charge Memorandum dated 25.02.2008 had not been established. The Disciplinary Authority after careful consideration of the inquiry report submitted by the Inquiry Officer disagreed with the findings of the Inquiry Officer (Annexure A-10).
10. The Applicant gave a representation dated 05.06.2009 and after consideration of the same, the Disciplinary Authority concluded that the Applicant was guilty of all the charges levelled against him vide Memorandum dated 25.02.2008 and awarded major penalty of removal from service with effect from 20.06.2009. The Applicant being aggrieved by the penalty order, submitted an appeal dated 11.07.2009 to the Appellate Authority under Rule 27(2) of the 8 OA.484/2011 CCS (CCA) Rules. The Appellate Authority gave a personal hearing to the Applicant on 12.11.2009 and reduced the penalty to compulsory retirement from service with effect from 20.06.2009 against which the Applicant has filed this Original Application. It was further mentioned that the present Original Application is devoid of any merit and the same deserves to be dismissed.
11. We have gone through the pleadings, perused the records and have extensively heard the learned counsel on behalf of the Applicant, Shri S.V. Marne and learned counsel on behalf of the Respondents, Shri R.R. Shetty.
12. On going through the case papers it is seen from the Charge Memorandum dated 25.02.2008 that the Applicant had been charged for the following 3 misconducts:
(i) that he had committed an act of misconduct by promptly accepting a sum of Rs.500/-from Shri D.K. Paste, T.No.2589/QCA to settle his problem of changing his recorded date of birth in service documents;
(ii) that he had committed an act of misconduct in which short payment was reported in IEs wages for the month December, 2007 paid in January, 2008. He used abusive language to Shri P.D. Ambre, T.No.5976/EMS and other workers on 09.01.2008;9 OA.484/2011
(iii) that he is a habitual offender for lack of integrity and conduct of unbecoming of a Government Servant. Despite penalties imposed, there is no improvement in his behaviour and allegedly he continues to conduct contravening Rule 3(I)(i)&(iii) of CCS (Conduct) Rules, 1964.
13. The Charge at Sl.No.(i) had been framed against the Applicant based on a written complaint dated 15.11.2007 given by Shri D.K. Paste, T.No.2589/QCA in which he has alleged that the Applicant had taken Rs.500/-from him for getting his date of birth changed. During the inquiry conducted, the Applicant had denied having taken any money from Shri D.K. Paste. However, Shri D.K. Paste had claimed that he had given Rs.500/-to the Applicant for which he had taken loan of Rs.500/from his friend Shri S.J. Gaikwad, T.No.2050/QCA. In the report dated 16.12.2008, the Inquiry Officer had stated that there is circumstantial evidence against the Applicant but at the same time he had also stated that the Applicant had denied in taking any money from Shri D.K. Paste. In the second Article of Charge, 10 Industrial Employees working in EMS Section gave a joint written complaint stating that the Applicant had abused Shri P.D. Ambre, T.No.5976/EMS on 09.01.2008. An explanation was sought from the Applicant and in his explanation 10 OA.484/2011 dated 11.01.2008, the Applicant had explained that due to some technical error in EARs Punching Machine, short payment had been reported and he had never abused Shri P.D. Ambre, T.No.5976/EMS. The third Article of Charge is with reference to the past penalties imposed upon the Applicant.
14. It was the Applicant's contention that during the inquiry held on various dates, the PW-I, Shri D.K. Paste had made the following inconsistencies in his statements regarding his acceptance of Rs.500/-from him for getting the date of birth changed are shown below:(
i) In his written complaint dated 15.11.2007 before the Inquiry Officer he has said that he had accepted and taken Rs.500/-from him to get his date of birth changed in his service record.
(ii) In his statement in the inquiry he has stated that he has given money on lending basis.
(iii) When asked why he had lodged complaint, Shri D.K. Paste replied that since the Applicant was not returning his money taken on lending basis, he had lodged complaint against him to threaten him.
(iv) In the same statement he has again said that he had given him money for a party. It was, therefore, the contention of the Applicant that in view of the contradictions inherent in the statement given by P.W.-I, the Presenting Officer in 11 OA.484/2011 his brief had exonerated the Applicant of this charge. These facts were considered by Inquiry Officer in his report dated 21.01.2009 and had concluded that the charge against him could not be established. As regards the Article of Charge under
(ii) that the Applicant had used abusive language against Shri P.D. Ambre, in his stateemnt dated 04.10.2008 during the inquiry Shri Ambre has stated that the Applicant had not used any abusive language against him. With regard to the short payment to the 10 Industrial employees, the Applicant's superior Shri Saldhana stated in the Inquriy that this was a lapse, but other than that he had no complaint regarding the discharge of his duties. Considering the evidence adduced during the inquiry, the Inquiry Officer in his report stated that the charge against the Applicant could not established. Further, since both the Charges I and II could not be established against the Applicant, the Charge No.III was related to old cases for which the Applicant had already been penalised, both the Presenting Officer in his brief dated 21.01.2009 and the Inquiry Officer in his report dated 28.01.2009 has stated that those old cases cannot be related to the present articles of charge. Hence Charge III also could not be established.
15. We have gone through the report of the 12 OA.484/2011 Inquiry Officer and do not find any inconsistency with the findings arrived at by the Inquiry Officer in his report dated 28.01.2009 and 27.05.2009. It has been very clearly mentioned in the Inquiry Report with reasoning during the assessment of the evidence that there were discrepancies which were confirmed during the examination and cross examination of the witnesses and none of the three charges against the Applicant could be established. It is also seen that the prosecution witness, PW-I, Shri D.K. Paste during the examination by Presenting Officer while answering Question No.11 and 12 had categorically stated that Rs.500/-was given to the Applicant on loan basis and not for correcting the date of birth in documents. The Prosecution Witness, PW-II, Shri S.J. Gaikwad also stated in his statement in Question No.11 that he has not seen any money being given to the Applicant. The Inquiry Officer also stated in the report that PW-I wrote a letter dated 15.11.2007 referring to the Applicant asking for Rs.1000/-as loan. It was further stated by the PW-I that the Applicant was not returning loan amount then he wrote the letter which showed that Shri Paste's (PW-I's) intention was bad and he wanted to fix the Applicant which was stated during his examination. Further, during the examination and cross examination of Shri P.D. Ambre while 13 OA.484/2011 answering Question No.7 he stated that Shri Amarappa (the Applicant) neither abused nor there is any quarrel between them. From the contents of the above report it becomes apparent that first charge has not been proved against the Applicant as evidence was not forthcoming against the Applicant. The second charge of use of abusive language also could not be established. This was attributed due to the prosecution witness, Shri P.D. Ambre having turned hostile. However, if the main prosecution witness had turned hostile, other witnesses should have been examined which does not appear to have been done. Therefore, in respect of Article of Charge No.I and II, it is very clear that it is a case of no evidence.
16. It is, therefore, clear from the case papers that the Inquiry Officer in his report has held that the charges against the Applicant has not been established. The Disciplinary Authroity, however, asked the Inquiry Officer to review his finding and after due consideration the Inquiry Officer again opined that the charges had not been established. The Disciplinary Authority, however, disagreed with the findings of the Inquiry Officer and issued a show cause notice to the Applicant holding all the three charges levelled against the Applicant as proved and imposed a penalty of removal 14 OA.484/2011 from service on the Applicant. The Appellate Authority, however, vide Annexure A-2 order dated 31.03.2011 held that the misconduct as established against the appellant, in the light of the foregoing discussion and analysis, is serious in nature. Such misconduct deserves to be severely penalized, particularly keeping in view its adverse hearing on discipline in an organization performing sensitive functions and catering to the requirements of the Armed Forces. Therefore, taking a lenient view having regard to the facts and circumstances of the case, the Appellate Authority reduced the penalty to that of compulsory retirement from service.
17. We are aware that matters relating to functioning of Ordnance Factory, maintenance of discipline amongst the employees is of paramount importance. We can not turn a blind eye to the alleged incident of indiscipline and use of abusive language within the Ordnance Factory premises.
18. We have gone through the original file and have carefully perused the statements of the witnesses and other material produced during the course of the enquiry. We, therefore, are of the view that although the charges in inquiry proceedings have not been conclusively established owing to the witnesss turning hostile, it would be in the interest of justice that a fresh inquiry be 15 OA.484/2011 carried out to ensure that no injustice is done on the Applicant but at the same time the Organization's interest is also not compromised.
19. In view of above, therefore, the impugned orders passed by the Disciplinary Authority and Appellate Authority are hereby set aside. The Respondents are directed to order a fresh inquiry into the charges from the stage when the preliminary enquiry was completed by the Inquiry Officer and giving liberty to the Applicant and Presenting Officer to adduce further evidence if requested for. Further, if the same Inquiry Officer and Presenting Officer are not available, a fresh Inquiry Officer and Presenting Officer be appointed. It is also made clear that if required, both sides may be given liberty to recall the witnesses and examine them further. The Inquiry should be completed at the earliest and at any rate within a period of four months and final orders be passed as per law within a period of six months from the date of receipt of a copy of this order. No order as to costs. (R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.