Central Administrative Tribunal - Delhi
Shri G.P. Upadhyaya vs Union Of India on 22 July, 2015
Central Administrative Tribunal
Principal Bench
OA No. 3536/2014
With
OA No. 3557/2014
Order Reserved on: 06.04.2015
Order Pronounced on:22.07.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Shri G.P. Upadhyaya,
S/o late Sh. Parashuram Upadhyaya,
Aged 49 years,
Permanent R/o A-504, Plot No.2,
Sector-19, Chitrakoot Dham CGHS,
Dwarka, New Delhi
Presently R/o 5th Mile, Gangtok-737102,
Working as Principal Secretary
Govt. of Sikkim at Gangtok -Applicant
(By Advocate: Shri R.N. Singh)
VERSUS
Union of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
North Block, New Delhi-110001
(through its Secretary) -Respondent
(By Advocate: Shri Rajinder Nischal)
ORDER
Dr. B.K. Sinha, Member (A):
The above two OAs, namely OA No.3536/2014 and OA No. 3557/2014 relate to a common subject arising from a common cause of action in a common period and similar alleged transactions. Hence, these two OAs have been heard together and are being disposed of by this common order, OA No. 3536/2014 being the lead case.
2. In OA No. 3536/2014, the applicant has assailed the impugned charge-memo dated 11.02.2008 along with Statement of Imputations of Misconduct or Misbehavior asking him to submit his representation within 15 days as to why action should not be taken against him under Rule 10 of the AIS (D&A) Rules, 1969. In this charge memo, the applicant was charged with having unauthorizedly inducted 150 labourers belonging to FCIWU on the basis of disputed list of 255 labourers, in transgression of his powers and without having due authorization from the superior authorities. The applicant was also charged with not intimating this act and seeking prior approval of the Hqrs. before making such induction. The applicant was further charged that due to the above action, a number of labourers approached the High Court of Lucknow and got stay order against their removal, a relief which would have not been admissible to them otherwise for this order. Due to court case no. 5164/1999 filed by 73 workers, an amount of Rs. 1,41,612/- was paid to them. The remaining 77 workers approached the Regional Labour Commissioner, Lucknow for payment of wages and the matter is still pending before the RLC. Thus, a legal right was created in their favour to continue on the basis of their appointment order dated 20.06.1998. The FCI was thus forced to make payment to these labourers, induced in excess to the requirement of FCI. The FCI was thus put to heavy financial losses. The applicant, thus, contravened Rule 3(1) & (2) of the All India Services (Conduct) Rules, 1968 read with Regulations 31, 32 and 32A of the FCI (Staff) Regulations, 1971.
3. The applicant submitted his representation against the charge memo dated 12.03.2008 wherein he represented that there had been a state-wide strike by FCIWU, which was the dominant labour union in UP at the peak of wheat procurement season during May, 1998. The wheat procurement during 1998 was one of the highest, around 22 lakh tonnes and the monsoon was round the corner. In case the strike was not broken up, the organization stood to sustain heavy losses. Engagement of 150 labourers was a two pronged strategy: (i) to make the union call off their strike; (ii) and also to utilize the open area of Barabanki depot for storage of wheat which was flowing copiously. Further, they were not engaged under DPS but on daily wages and no appointment order was issued from the regional office in favour of any labour under DPS system. The labourers were, however, only to be engaged by District Manager where they could prove, on the basis of the documentary evidence that they had worked genuinely earlier in that depot and had been left out in the selection process. They were not to be engaged in such cases where they failed to prove their credentials. It was for this reason that possession of old identity cards had been made mandatory. A copy of the agreement entered into with the Union on 20.06.1998 had been dispatched to both the Zonal Manager and the Managing Director in the Headquarter as a matter of routine. Hence there was no question of not sending it to the higher authorities or concealing this fact from them. The applicant, as SRM, could not be held responsible for non-receipt of the copy of the agreement either in the Zonal Office or Headquarters. This engagement was certainly not without any strings attached. Proving of identity was vital for their engagement and when it had not been forthcoming, all the 150 labourers were promptly removed. They also went to the court but failed to get any relief precisely because of their inability to prove that they had indeed worked earlier at that depot and possessed genuine identity cards, a precondition for their engagement right from the inception. FCI didnt incur any loss and the wages paid to them were only and strictly against the work done by them. Because of their engagement, not only strike of FCI WU was called of, thereby saving wheat worth hundreds of crores all over UP, but they were also utilized in storage of wheat at the open area of Barabanki before the monsoons.
4. In OA No. 3557/2014, the applicant has assailed the impugned charge-memo dated 03.07.2008 along with Statement of Imputations of Misconduct or Misbehavior asking him to submit representation within 15 days as to why action should not be taken against him under Rule 10 of the AIS (D&A) Rules, 1969. In this charge-memo, the applicant was charged with having failed to maintain absolute integrity and devotion to duty and acting in a manner unbecoming of a senior Government servant, as he had failed to safeguard the interest of the respondent-organization and is guilty of lack of supervision and control on working of UP Region. One HN Srivastava, Assistant Manager (D) had committed serious irregularity by issuing identity cards to 120 labourers at FCI Depot, Gola which created a good deal of administrative problems to the Department. The applicant at NP-13 of Regional Office No. F.15(97)/Court Case, dated 27.09.1997, had recorded that transfer/disciplinary action ought to have been taken against the said H.N. Srivastava AM (D). Consequently, transfer order of H.N. Srivastava, AM(D) came to be issued from Gola to Gorakhpur vide order dated 18/19.11.1997. However, when the applicant visited Gola on 07.01.1998, he reportedly allowed the said HN Srivastava AM(D) to continue in Gola and put his transfer order in abeyance. Moreover, one Shailendra Kumar, the then JM(Vig.), FCI, RO Lucknow had initially recommended the suspension of the said HN Srivastava AM(D) at N.P.-3. However, JM(Vig.) re-submitted the file vide N.P.5 dated 11.1.1999 requesting for delinking the issue of suspension and disciplinary action and seeking orders at least regarding disciplinary action. The applicant ordered to charge-sheet him for major penalty on 20.01.1999 at NP-6 of this file. The decision of placing the said H.N. Srivastava under suspension got sidetracked on this account. Thus, the applicant failed to pursue the issue of suspension of said HN Srivastava who continued to be at Gola. Moreover, there had been a misappropriation of 6597 bags of wheat in 1994-95 and 9175 BT gunnies in 1995-96 valued at Rs. 27,96,398/- at Mandi Yard, Gola in which the said HN Srivastava AM(D) was the prime suspect. During the posting of Shri H.N. Srivastava, AM(D) at FCI Depot, Gola in 1998-99, there was a total receipt and storage of 34,898.7 MT of wheat at Mandi Yard, Gola. The said HN Srivastava was found to have committed several irregularities/misappropriations thefts/short receipts and mismanagement, resulting in damages and loss to the Corporation to the extent of more than Rs. 2 crores. Had the said H.N. Srivastava AM(D) been removed from Gola earlier, such heavy losses sustained by the FCI could have been avoided. Moreover, the applicant did not even care to visit Mandi Yard, Gola during the period from April, 1998 to 13.08.1999. Thus, the applicant failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a senior officer, thereby violating Rule 3(1) & (2) of AIS (Conduct) Rules, 1968.
5. The applicant submitted his representation against the charge memo dated 09.07.2008 wherein he stated that he took up the charge of SRM UP during July, 1997 and in the month of September 1997 (in just about 2 months), ordered for transfer of the said HN Srivastava AM(D) from Gola at his own, based solely on the basis of the gravity of charges against him as brought out in the file. The proposal, which was sent for his approval, was for only contemplation of vigilance proceedings against him, to which he agreed for major penalty proceedings and also ordered for his removal from Gola. It is pertinent to mention here that regional office and his previous incumbent never bothered to shift the said HN Srivastava AM(D) from Gola, despite the fact that he had committed irregularities which were well within the knowledge of the Regional Office and since the matter was being investigated by them. In other words, the order of his transfer was purely borne out of his own conviction based on the facts as brought out in the file that in order to save FCI from further losses, it was imperative to remove the said HN Srivastava from Gola. This being the case, the allegation that he favoured H.N. Srivastava by keeping him there which led to further losses to the Corporation does not hold any water. The fact that the UP region was having more than 200 depots at that point of time with the number of AM(D)s being in hundreds makes it amply clear that knowing one AM(D) was completely ruled out as also granting him any personal favours. He further claimed that it was the job of his subordinate officers to implement the order of SRM and totally denies that he had placed his transfer in abeyance. The applicant further submitted that power of placing a category-II officer under suspension was not vested in SRM but only in Zonal Manager as per FCI Staff Regulations. There were instances where such orders issued under the signature of SRM and forwarded to Zonal Manager (N) for confirmation, had been stayed by the Honble High Court during the period of confirmation which was inordinately long. Per contra, when applicant visited Gola on 7.1.1998, he became the first SRM to visit FSD Gola in many years. He submits that his predecessors had never taken the pain to visit Gola or take action against the said H.N. Srivastava AM(D) despite being aware of the irregularities being committed by him. The applicant was surprised to find him continuing there. He ordered for his immediate removal by giving orders to the District Manager and the Regional Office on the spot. He further submitted that removal of said HN Srivastava was the bold decision that he had taken barely within 2 months of his joining as SRM suo moto. Moreover, the whole establishment of Regional Office and District Office Sitapur under the pressure of staff union was against the removal of the said HN Srivastava from Gola.
6. Both the above replies/representations were considered in a penalty proceeding under Rule 10 of AIS (D&A) Rules, 1969 and his reply in both the cases were also duly considered and examined in the office of the respondents. The comments of Department of Food & Public Distribution and advice of CVC and that of UPSC on the quantum of punishment were also obtained. The UPSC arrived at the conclusion that the charges leveled against the applicant in terms of charge-sheet dated 11.02.2008 and 03.07.2008 had been duly proved and the Commission had considered that the ends of justice would be fully met in this case by imposing a penalty of reduction by one stage in the time scale of pay for a period of two years without cumulative effect (OA No. 3536/2014) and reduction of pay by one stage in the time scale of pay for a period of three years without cumulative effect (OA No. 3557/2014. Therefore, the Central Government, after careful consideration of the replies submitted by the applicant, comments of the FCI/Department of Food and Public Distribution thereon and the advice of the UPSC, reaffirmed the imposition of minor penalty vide order dated 14.12.2010 in OA No. 3536/2014 and 05.01.2011 in OA No. 3557/2014.
7. The applicant had assailed the aforesaid penalty order dated 14.12.2010 in OA No. 608/2011 before this Tribunal, which was disposed of vide order dated 29.08.2011 quashing the order dated 14.12.2010 with liberty to the respondents to furnish the necessary material relied upon to issue impugned orders to the applicant, who on receipt of the same, may make a representation. The order further directed that the respondents would also look into the delay in initiating the proceedings against the applicant and the prejudice that might have been caused to him because of the same. They would also take into consideration the additional grounds which may be relevant and may be taken by the applicant in his representation. In consideration of all the aspects of the case, the Disciplinary Authority would pass a fresh order. Accordingly, vide DOPT letter dated 1.7.2013, a copy of the advice of UPSC dated 28.10.2010 was communicated to the applicant and subsequently a copy of the UPSC advice dated 21.10.2010 was communicated to the applicant vide Department letter dated 12.11.2013 seeking a representation on the same in compliance of the CAT judgment dated 29.08.2011 in OA No. 608/2011. Accordingly, the applicant submitted his representations dated 22.7.2013 and 19.11.2013 on the advice of the UPSC, leading to imposition of the penalty order and the disciplinary authority after consideration of the aforesaid representations of the applicant and the points raised therein, had found that no specific fresh point had been put forth by the applicant on the observations of the UPSCs advice dated 28.10.2010. It was further found that it was the fact that the disciplinary proceedings against the applicant were initiated vide charge memorandum dated 11.02.2008 for an act committed in the year 1998 and the delay was, however, to a large extent due to procedural requirements and repeated clarifications sought in the matter. Therefore, the disciplinary authority after considering all the above facts reaffirmed the imposition of the minor penalty of reduction of pay by one stage in the time scale of pay for a period of two years without cumulative effect on the applicant.
8. The applicant had also assailed the penalty order dated 05.01.2011 in OA No. 616/2011, which was disposed of vide order dated 29.08.2011 quashing the said penalty order. The Tribunal had referred to the judgment of Honble Supreme Court in the matter of Union of India Vs. S.K. Kapoor, [2011 (4) SCC 589] laying down the if the report of the UPSC is relied up, then a copy of the same must be supplied in advance to the concerned employee, otherwise there will be violation of principles of natural justice. In compliance with the Tribunals order dated 29.08.2011, a copy of UPSCs advice was given to the applicant vide DoP&T letter dated 28.06.2013. In response to the said letter, the applicant vide his representation dated 22.7.2013 had submitted his reply on the advice of the Commission. On examination of the said representation, it was found that no new facts had been brought out by the applicant in his representation which had not been considered while deciding on the penalty earlier imposed. The applicant claims that while proceedings under Rule 10 of AIS (D&A) rules, 1969 for minor penalty had been initiated vide memorandum dated 4.7.2008, the penalty imposed on him was not in consonance with the provisions of Rule 6 of AIS (D&A) Rules, 1969 and therefore, the penalty was not tenable in the eyes of law, as it had been covered under Rule 6 of AIS (D&A) Rules, 1969. Admitting the fact that there was no direct allegation of misappropriation or malafide against the applicant and that there had been a delay in initiation of disciplinary proceedings against him with the memorandum being issued on 04.07.2008 for the alleged acts of omission committed in the year 1998 to 1999, a lighter penalty was proposed against the applicant. This proposal was considered by the Committee of Secretaries in its meeting held on 23.04.2014. After detailed deliberation, the Committee of Secretaries, taking into account the inordinate delay in initiation of the disciplinary proceedings, resulting into considerable suffering for the officer in terms of career and also considering that there were no allegations relating to misappropriation or malafide on the part of the applicant, recommended that the minor penalty of Censure would meet the ends of justice. Therefore, the Central Government, after careful consideration of the reply of the applicant dated 22.7.2013, and the recommendation of the Committee of Secretaries in its meeting held on 23.04.2014, had come to the conclusion that it will be just and equitable to reduce the quantum of penalty of reduction of pay by one stage in the time scale of pay for a period of three years without cumulative effect and to impose the minor penalty of Censure on the applicant.
9. The instant two OAs have been filed impugning the orders dated 14.02.2014 in OA No. 3536/2014 and 01.09.2014 in OA No. 3557/2014, as discussed above. The following grounds have been adopted for the OAs:-
(A) The impugned charge-memo is vitiated on account of non-compliance to the provisions of Rule 10 read with Rule 4 of AIS (D&A) Rules, 1969, inasmuch as the disciplinary authority had not approved the same. The PM has seen the file as Minister-in-Charge but initiation of proceedings had not been approved. The applicant has relied upon the decided case of Honble Supreme Court in Union of India Vs. B.V. Gopinath, (2014) 1 SCC 351.
(B) The charge-memo is in violation of Rule 8(4)(ii)(a) & (b) of AIS (D&A) Rules, 1969. Reliance is placed on the case of Honble Supreme Court in Roop Singh Negi Vs. Punjab National Bank & Ors. 2009 (2) SCC 570 and also in State of U.P. Vs. Saroj Kumar Sinha, 2010 (2) SLJ 59.
(C) The case is marred by inordinate delay. The charge-sheet was issued in the year 2008 for the acts committed in 1998-99. This has affected the career progression of the applicant as he would be ineligible for future promotions as Additional Secretary and Secretary.
(D) The act of the applicant was done in public interest, as it was necessary to break up the strike before approaching the monsoon season. Had the strike not been broken up, the organization would have suffered losses running into several hundred of crores. No loss has been caused to the organization as the decision had been taken with full precaution. The workers were to be engaged only subject to verification and no payment should be made to them till receipt of authorization from the headquarters. Even then they were to be engaged not under DPS but as daily labourer. This has also been admitted by the respondents in their counter affidavit. It is admitted that the applicant has acted in the interest of the organization. In view of such admission, there is no punishment that is due, rather he should have been rewarded.
(E) The applicant has also alleged discrimination against him for the reason that the decision to appoint 150 labourers had been taken in a committee, while the applicant was being singled out for punishment.
10. The applicant has further submitted in OA No.3536/2014, that he was the officer who had taken prompt action within two months of his joining to visit Gola depot and had ordered for transfer of said H.N. Srivastava. It was the responsibility of the subordinate officer to get transfer order implemented. There were more than 200 AMD (s) and it was not possible for the applicant to have supervised all of them personally. When the applicant visited Gola on 07.01.1998 and found the said HN Srivastava still there, he ordered District Manager and General Manager (Personal) for his immediate removal.
11. The applicant in OA No. 3557/2014 has submitted that his actions do not fall within the category of misconduct and has relied upon the decided cases of Honble Supreme Court in Union of India & Ors. Vs. J. Ahmed, (1979) 2 SCC 286, State of Punjab & Ors. Vs. Ram Singh, AIR 1992 SCC 2188 and Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors. 2007(4) SCC 566. The impugned charge memo is further vitiated for unexplained delay and reliance is placed on the law laid down by the Honble Apex Court in State of Andhra Pradesh Vs. N. Radhakrishnan, JT 1998 (3) SC 123 (para 19). P.V. Mahadevan Vs. Managing Director Tamil Nadu Housing Board, (2005) 6 SCC 636 and also law laid down by the Division Bench of Honble Kerela High Court in Meeran Rawther Vs. State of Kerala, 2001(5) SLR 518 and further by Honble Punjab and Haryana High Court in Rajbir Singh Gill Vs. State of Punjab and Anr. (1997) 7 SLR 422.
12. The applicant has further relied upon the case of Neeraj Singh Vs. Union of India & Anr. (OA No.3550/2012) and submitted that his case stands on a better footing than that of the former as no case was ever instituted by the CBI against him.
13. The respondents have filed their counter affidavit rebutting all the averments of the applicant in both the cases.
14. In OA No. 3536/2014, the respondents have stated in their counter affidavit that it was found that the applicant engaged labourers allegedly with a view to ending their strike in the overall interest of FCI, even though he was not authorized to do so. Therefore, it was decided that the punishment is not for calling off the strike in the interest of the organization but it is for infringing the rules and regulations of FCI, and ends of justice would be adequately served by awarding aforesaid minor penalty to him. This decision had been taken after having obtained and considered the comments/advice of the FCI, DoP&T, CVC and that of the UPSC, and, therefore, it is not discriminatory. The Prime Minister as Minister in charge of the Ministry of Personnel, Public Grievances and Pension, has also seen and considered the proposal for imposition of minor penalty. The respondents have also alleged that the applicant has not exhausted all the remedies available under AIS (D&A) Rules, 1969 and, therefore, the application is fit to be rejected on this count alone. As the applicant had preferred a memorial dated 20.08.2014 against the penalty order dated 14.02.2014 directly to the Central Government; while he was required to do it in terms of sub Rule 25 (4) of AIS (D&A) Rules, 1969.
15. The respondents have further submitted that the judgment in BV Gopinaths case (supra) is not applicable as the proceedings are not being conducted under CCS (CCA) Rules. There is no departmental inquiry under minor punishment proceeding and as such, Rule 8 of AIS (D&A) Rules, 1969 is not applicable. The penalty and the charge-sheet have been approved by the Prime Minister. The applicant was heading the Committee comprising another judicial officer and he cannot seek shelter behind the departmental proceedings not being conducted against the judicial officer. The respondents further submitted that role of judicial intervention is rather limited and is confined to only conditions where the charge-sheet had been issued by the incompetent authority; there has been violation of rules of natural justice; punishment given is shocking to the judicial conscience of the judges; and where there is malafide proved. Here, malafide is neither alleged nor proved. The punishment being one of minor in nature, there was no requirement of the departmental inquiry on the ground of delay. Learned counsel for the respondents submitted that delay was not intentional and is explained by the stages and procedures involved.
16. We have carefully examined the pleadings submitted by the respective parties as also the documents submitted therewith. We have further listened patiently to the arguments of the respective counsels.
17. To our mind, the issues that formally need to be decided in this OA are the following:-
(i) What is the scope of judicial intervention in the departmental inquiry?
(ii) Whether the charges framed in both the OA vide charge memos dated 11.02.2008 and 03.07.2008 do not bear out any misconduct and violation of Rules 3(1) and 3(2) of AIS (Conduct) Rules, 1969 and Rules 31, 32 and 32A of FCI Staff Regulations, 1971?
(iii) Whether the action had been taken in derogation of Rules 8 and 10 of the All India Services (D&A) Rules, 1969?
(iv) Whether the cases are hit by the delay in framing the charges and conducting the inquiry?
(v) What relief, if any, can be granted to the applicant?
18. Insofar as first issue is concerned, it has been considered in a series of decisions by the Honble superior courts as well as by this Tribunal. The Tribunal in the case of Kum Abnuj Vs. Union of India (OA No. 2055/2010) decided on 24.12.2014 (Manu/CA/0731/2014) has examined the matter in depth. It has been held therein that the scope of judicial intervention in the departmental inquiry is indeed limited and is confined to only where the findings are perverse i.e. they have been arrived at by ignoring and excluding relevant materials or by taking irrelevant inadmissible matter into account. This has been supported by this very Bench in Dhirendra Khare Vs. Central Board of Direct Taxes (OA No. 1606/2014) that the Tribunals/Courts being not superior appellate authorities are not to substitute their opinion for the findings arrived at by the inquiring officer/DA on detailed appreciation of evidence on record. They could only interfere with the punishment where the order challenged reflects any violation of rules of natural justice or malafide or where the order of punishment is disproportionate. This stands further supported by the pronouncements of the Honble Supreme Court in Chander Kumar Chopra Vs. Union of India & Ors. (2012) 6 SCC 369, Union of India & Ors. Vs. Shivendra (2003) 6 SCC 539, Pala Singh Tanc Vs. Union of India, Kuldeep Singh Vs. Commissioner of Police (1999) 2 SCC 10 etc. In the instant case, we take cognizance of the fact that there has been no departmental proceeding but rather order of punishment had been passed under scope of Rule 10 of AIS (D&A) Rules, 1969. Hence, the scope of judicial inquiry is reduced further. To our mind, the scope of judicial inquiry can be summed up as under:-
(i) Where the charge-sheet has not been approved or the order of punishment not made by the competent authority.
(ii) Where the rights of natural justice have been violated.
(ii) Where the order is hit by malafide.
(iv) Where the punishment inflicted is disproportionate to the gravity of the act committed by the applicant.
19. Insofar as the second issue is concerned, the argument of the parties have already been noted from which it appears that the applicant had been charged with having contravened Rule 3(1) and 3(2) of AIS (Conduct) Rules, 1968 read with Regulations 31, 32 and 32A of the FCI Staff Regulations, 1971.
20. Rule 3(1) and 3(2) of All India Services (Conduct) Rules, 1968 read as follows:-
3(1) Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service.
3(2) Every member of the Service shall take all possible steps to ensure integrity of, and devotion to duty by, all Government servants for the time being under his control and authority.
21. On the other hand, Rules 31, 32 and 32-A of FCI Staff Regulations are reproduced as hereunder:-
31. General:
Every employee shall at all times:
(a) maintain absolute integrity;
(b) maintain devotion to duty;
(c) conform to and abide by the provisions of the Act and the rules and regulations made there under :
(d) comply with and obey all lawful orders and directions which may from time to time be issued to him in the course of his official duties by any person or persons to whom he may be subordinate in the service of the Corporation.
32. Every employee shall serve the Corporation honestly and faithfully and shall endeavour his utmost to promote the interest of the Corporation. He shall show courtesy and attention in all transactions and not do anything which is un-becoming of a Corporation employee.
32-A Misconduct:
Without prejudice to the generality of the term Misconduct, the following acts of omission and commission shall be treated as misconduct:
(1) Theft, fraud or dishonesty in connection with the business or property of the Corporation or of the property of another person within the premises of the Corporation.
(2) Taking or giving bribes or any illegal gratification.
(3) Possession of pecuniary resources or property disproportionate to the known sources of income by the employee not satisfactorily accounted for.
(4) Furnishing false information regarding name, age, fathers name, qualifications, ability or previous service or any other matter germane to the employment at the time of employment or during the course of the employment.
(5) Acting in a manner prejudicial to the interests of the Corporation.
(6) Willful insubordination or disobedience whether or not in combination with others, of any lawful and reasonable order of his superior.
(7) Absence without leave or over-stay the sanctioned leave for more than four consecutive days without sufficient grounds or proper or satisfactory explanation.
(8) Habitual late or irregular attendance.
(9) Neglect of work or negligence in the performance of duty including malingering or slowing-down of the work.
(10) Damage to any property of the Corporation, either willfully or due to negligence.
(11) Interference or tampering with any safety-devices installed in or about the premises of the Corporation.
(12) Drunkenness or riotous or disorderly or indecent behaviour in the premises of the Corporation or outside such premises where such behaviour is related to or connected with the employment.
(13) Gambling within the premises of the office or other place of work, where it is prohibited.
(14) Smoking within the premises of the Office or other place of work, where it is prohibited.
(15) Collection, without the permission of the competent authority, of any money (within the premises of the Corporation) except as sanctioned by any law of the land for the time being in force or rules of the Corporation.
(16) Sleeping while on duty.
(17) Commission of any act which amounts to a criminal offence involving moral Turpitude.
(18) Absence from the employees appointed place of work without permission or sufficient cause.
(19) Commission of any act subversive of discipline or of good behaviour.
(20) Willful absence from duty after expiry of joining time on transfer from one post to another.
(21) Slackness/carelessness in the performance of duty of Watchman/Head Watchman which may result in theft, pilferage of Corporations property.
(22) Willful and prolonged absence from duty without reasonable cause.
(23) Neglect of his/her spouse and family in a manner unbecoming of an employee of the Corporation.
(24) Failure to maintain a responsible and decent standard of conduct in private life, thereby bringing discredit to the Corporation.
(25) Failure to observe proper decorum during lunch hour, playing games/cards beyond the prescribed lunch hour and playing cards/gambling in the open spaces or building in the immediate vicinity of the office building.
(26) Becoming a member of and participation in Indo-foreign cultural organization, without prior permission of the competent authority.
(27) Any unruly or irresponsible behaviour before a Department Enquiry Officer when appearing as a witness or as a delinquent or a defence Assistant or a Presenting Officer or in any other capacity.
(28) Leakage of classified information either through Press or otherwise to an individual not entitled to receive the same, in writing or verbally.
(29). Having obtained an advance from the Corporation for a specific purpose such as House Building, purchase of a conveyance, leave travel or for any other declared purpose, not utilizing the same for the intended purpose within the period specified and diverting the money for any other purpose.
(30) Any act unbecoming of an employee of the Corporation.
(31) Assaulting or abusing or insulting any of the officers or employees of the Corporation within the premises of office or other place of work or outside.
(32) Interference in the work of other employees.
(33) Approaching higher authorities direct or though other persons for promotion or any other personal favour or gain except through proper channel.
(34) Writing of anonymous or pseudonymous letter criticizing the Management or any other officer/ employee of the Corporation.
(35) Spreading false remours or giving false information or making defamatory statements (written or oral) which tend to bring the Management or its officers into disrepute.
(36) Carrying on money-lending, or any other private business.
( 37) Willful failure to appear before Medical Board, when called upon to do so.
(38) Abetment of or attempt at abetment of any act which amounts to misconduct.
Note: The above instances of misconduct are only illustrative in nature and not exhaustive.
22. As we have already discussed within the terms of scope of the judicial intervention, this Tribunal is not to act as appellate authority over the decision of the disciplinary authority. The facts as they stand indicate that the applicant was charged with having contravened Rule 3(1) and 3(2) of All India Service (Conduct) Rules, 1968 read with Regulations 31, 32 and 32-A of FCI Staff Regulations, 1971 and charges were held proved against him. While we consider it inexpedient or beyond the scope of judicial intervention to go into the factum and proof of the charges, it needs simply be stated that the scope of Rules 3(1) and 3(2) of AIS (D&A) Rules, 1968 are indeed very wide and even the slightest infringement can be netted by both these provisions. Rule 3(1) of AIS (DA&A) Rules casts duty of absolute integrity and devotion to duty upon every officer of AIS. It also becomes incumbent upon him that he shall do nothing which is unbecoming of a member of the service. On the other hand, under Rule 3(2) thereof, it is duty of every member of the Service to take all possible steps to ensure integrity of, and devotion to duty by, all Government servants for the time being under his control and authority. Without going into the merit of the charges, it stands admitted that the said HN Srivastava, who was known to be a corrupt officer and who had acknowledgedly indulged in malpractice of different kinds and against whom the charges of grave misconduct, including misappropriation and embezzlement have been pending, had been rightly ordered to be transferred out. Provisions of Rule 3(1) and 3(2) of the AIS (Conduct) Rules are so wide that if intelligently applied, many officers can be held guilty of misconduct not for their own actions, but for the actions of their subordinates, and can fail to ensure integrity and devotion to duty. Likewise, it is also to be noted that provisions of Rule 31, 32 and 32-A of FCI Staff Regulations, 1971 are so wide as it would appear from the afore citations that even slightest infringement can hold person guilty of misconduct.
23. In OA No. 3536/2014, the applicant was charged with having inducted 150 labourers belonging to FCI WU on the basis of disputed list of 255 labourers in transgression of his powers and without having due authorization from the superior authorities. The defence of the applicant is that it was done in the interest of the corporation on account of approaching monsoon season; pressure of work and sufficient precautions being taken by him for the proper identification of labourers so inducted with instructions that no payment was to be made to them till identification and approval was taken from the superior authority but has been rejected by the disciplinary authority under the advice from the CVC and the UPSC. We have already discussed wide vistas of Rules 31, 32, and 32-A of FCI Regulations and, therefore, we find that the scope of Regulations cited is so vast that even the slightest infringement of any of the provisions can hold the person guilty of misconduct. This Tribunal is excluded from carrying out of judicial re-appraisal of the evidence. In any case, the charges are specific and the competent authority has found them substantiated. Therefore, we find no specific reasons to differ with the competent authority on this matter and this issue is answered against the applicant.
24. Insofar as third of the issues is concerned, the applicant has been awarded a minor penalty under Rule 6(1) of AIS (D&A) Rules following the procedures prescribed under Rule 10 of the same Rules. In OA No. 3557/2014, the charge-memo dated 03.07.2008 was also issued under Rule 10 of the AIS (D&A) Rules and in OA No 3536/2014, again the charge-memo dated 11.02.2008 had been issued vide OM dated 11.02.2008 and the applicant, as stated, was charged with having unauthorizedly inducted 150 labourers belong to FCIWU on the basis of disputed list of 255 labourers, in transgression of his powers and without having due authorization from the superior authorities. It is to be stated that Rule 8 of AIS (D&A) Rules, 1969 is akin to Rule 14 of CCS (CCA) Rules; while Rule 10 is akin to Rule 16 of CCS (CCA) Rules.
25. Rule 10 prescribes the following procedures:-
10. Procedure for imposing minor penalties 10(1) Subject to the provision of sub-rule (3) of Rule 9 no order imposing on a member of the Service any of the penalties specified in clauses (i) to (iv) of rule 6 shall be made except after: (a) informing the member of the Service in writing of the proposal to take action against him and of the imputations of misconduct or misbehavior on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry, in the manner laid down in sub-rules (4) to (23) of rule 8, 44(in every case in which it is proposed to withhold increments of pay for a period exceeding three years, or with cumulative effect for any period, or so as to adversely affect the amount of pension payable to him, or in which the disciplinary authority is of the opinion that such inquiry is necessary. (c) taking the representation, if any submitted by the member of the Service under clause (a), and the record of inquiry, if any, held under clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehavior, and (e) consulting the Commission. 10(2) The record of proceedings in such cases shall include: (i) a copy of the intimation to the member of the Service of the proposal to take action against him; (ii) a copy of the statement of imputations of misconduct or misbehavior delivered to him; (iii) his representation, if any; (iv) the evidence produced during the inquiry; (v) the advice of the Commission; (vi) the findings on each imputation of misconduct or misbehavior; and (vii) the orders on the case together with the reasons therefor. We further find that the procedure prescribed in Rule 10 has been scrupulously adhered to and there is nothing which the learned counsel for the applicant has been able to produce which would even give the slightest hint that the said procedures have not been adhered to. We find that in both the afore charge-memos there is a detailed and reasoned examination of the charges framed, the defence of the applicant, comments of the FCI, DoP&T and CVC and UPSC and then the final opinion of the disciplinary authority. Hence, we find that there are no reasons to interfere with this charge and the same is decided against the applicant.
26. Insofar as the issue of delay is concerned, it is an admitted fact the alleged acts for which the applicant has been charged were committed in the year 1998-99 whereas the charge memos against the applicant were issued on 11.02.2008 and 03.07.2008. Thus, there is a delay of 10 years in issuance of charge memos. On the other hand, another three years were taken by the respondents to arrive at a final decision. We are to note that the departmental inquiry must be completed within a period of approximately six months as is required under the OM on the subject issued by the DOP&T which, admittedly, was not invoked at the time when punishment was awarded but we take note of the explanation given by the respondents that delay was on account of procedural reasons. It must be taken note of that a departmental proceeding hangs heavy like Damocles sword upon the head of the charged officer.
27. The applicant has relied upon the decided case of this Bench of the Tribunal in Neeraj Singh (IRS) 94068 Vs. UOI (OA No. 3550/2012) decided vide order dated 30.05.2013. In this case, the applicant - Neeraj Singh was an officer of the Indian Revenue Service, who was charged with having arranged employment for his wife in a firm owned by one assessee without obtaining previous sanction of the Government; and he submitted wrong information to the Government that he did not have any dealing with the above firm in his official capacity and failed to inform transactions in respect of movable properties acquired. In this case, charge no.3 pertained to the period between 2000 and 2003. The matter was thoroughly investigated by the CBI which resulted in filing of closure report, which was accepted by the Special Judge, CBI, in the year 2006. In the year 2008, the department sought explanation of the applicant and the charge-sheet was finally issued to the him on 19.09.2012. This Tribunal after having gone through number of decisions, held that it has not been possible to lay down any rule, guidelines as to what constitutes a delay on the basis of which proceedings would be quashed. It has been left to the discretion of the court to decide the issue in relation to other collateral issues arose.
28. The applicant in the instant case has submitted that his case stood on better footing as compared to that of Neeraj Singh on account of the fact that he had not been investigated by the CBI nor was a charge-sheet ever submitted against him. It is also a fact that that judgment in Neeraj Singh (supra) may not fully constitute binding legal precedent as it has already been stated that these two cases are distinguished by the fact that there was a CBI inquiry in which CBI submitted a closure report which was ultimately accepted by the court of competent jurisdiction. Thereafter the department has examined the matter and arrived at conclusion that the cases were not being substantiated on the basis of the materials on record. It was at the 11th hour in an abrupt volte face that the competent authority decided to initiate departmental proceedings against him. It is now well accepted that there has to be a distinction between a binding legal precedent and decision of persuasive legal value. It is axiomatically accepted that every case is an authority in itself and is governed by its own facts. The two cases in respect of which a parallel is sought to be drawn must be similar in facts as well as in ratio derived in order to be accepted as one of binding legal precedent. The Honble Supreme Court in the case of State of Orissa Vs. Sudhansu Sekhar Misra, AIR 1968 SC 647 has held that the decision is only an authority for what it actually decides. What is the essence of a decision is its ratio and not every observation found therein nor what originally follows from the various observations made in it. It has been further supported in Divisional Controller KSRTC Vs. Mahadeva Shetty & Anr, (2003) 7 SCC 197, Bank of India Vs. K. Mohandas & Ors. (2009) 5 SC 313 to name a few.
29. In Ajay Kumar Choudhary vs. UOI & Ors., MANU/SC/0161/2015, the Honble Supreme Court after having considered the decisions in Ravi Yashwant Bhoir Vs. District Collector, Raigad, (2012)4 SCC 407, OP Gupta Vs. UOI (1987) 4 SCC 328, K. Sukhendar Reddy Vs. State of AP, (1999) 6 SCC 257, State of AP Vs. N. Radhakrishan (1998) 4 SCC 154, UOI Vs. Dipak Mali (2010) 2 SCC 222, Kartar Singh Vs. State of Punjab (1994) 3 SCC 569, Hussainara Khatoon Vs. Home Secretary, State of Bihar; Abdul Rehman Antulay Vs. RS Nayak (1992) 1 SC 225, State Bank of Punjab Vs. Chaman Lal Goyal, (1995) 2 SCC 570 and Raghubir Singhy Vs. State of Bihar , (1986) 4 SCC 48, has held as under:-
11. The legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental inquiries has been emphasised by this Court on numerous occasions. The Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak MANU/SC/0326/1992 : 1992 (1) SCC 225, underscored that this right to speedy trial is implicit in Article 21 of the Constitution and is also reflected in Section 309 of the Code of Criminal Procedure, 1973; that it encompasses all stages, viz., investigation, inquiry, trial, appeal, revision and re-trial; that the burden lies on the prosecution to justify and explain the delay; that the Court must engage in a balancing test to determine whether this right had been denied in the particular case before it. Keeping these factors in mind the CAT had in the case in hand directed that the Appellant's suspension would not be extended beyond 90 days from 19.3.2013. The High Court had set aside this direction, viewing it as a substitution of a judicial determination to the authority possessing that power, i.e., the Government. This conclusion of the High Court cannot be sustained in view of the following pronouncement of the Constitution Bench in Antulay:
86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is--who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on--what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barke 33 L Ed 2d 101 "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell 15 L Ed 2d 627 in the following words:
...the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.
However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker 33 L Ed 2d 101 and other succeeding cases.
(8) Ultimately, the court has to balance and weigh the several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order--including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded--as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
30. In yet another case, i.e., Life Insurance Corporation of India & Ors. vs. S.Vasanth, (2014) 9 SCC 315, a charge-sheet was served upon the respondent with the allegations of tampering with the premium position and other records pertaining to 17 insurance policies, which resulted in settlement of surrender value payments, though these policies had not acquired surrender value, thereby causing pecuniary loss to the appellant organization. A show cause notice was issued to the respondent to which she submitted her reply and after having gone through the same, the Divisional Manager, the disciplinary authority, passed orders dated 30.12.1998 accepting the findings of the inquiry officer and imposing the punishment as proposed in the show cause notice. Appeal of the respondent preferred there against was dismissed by the appellate authority. A memorial filed before the Chairman of the LIC was also rejected. At this stage, the respondent took recourse to judicial proceedings by filing writ petition in the Honble High Court of Judicature at Madras. This writ petition was dismissed by the learned Single Judge of the High Court, who not only held that a proper inquiry was conducted in consonance with the principles of natural justice as well as the extant rules, but even the punishment imposed by the disciplinary authority was justified and upheld the same. Being aggrieved, the respondent preferred write appeal, which was decided by the Division Bench of the High Court vide judgment dated 26.06.2013 reducing the quantum of punishment to withholding one increment with cumulative effect for a period of one year. The Honble High Court had also invoked wednesbury principles to hold that in view of the delay, the court was competent to reduce the quantum of punishment. The Honble Supreme Court held as under:-
10. The scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by the disciplinary authority is now well settled. In the case of Deputy Commissioner, KVS & Ors. v. J. Hussain, (2013) 10 SCC 106, the law on this subject, is recapitulated in the following manner:
7. When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist.
8. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts.(See: Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad (2010) 5 SCC 775) In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.
9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions vs. Minister for Civil Service in the following words:
Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality.
31. In sum and substance, the debate boils down to that it is not possible to have any hard and fast rules for quashing the departmental proceedings for finding the same impeded by the factor of delay. Therefore, it is left to the discretion of the court to determine as to how much of delay would serve to vitiate the inquiry or whether it can be reasonably examined or whether it can act as a factor while deciding the other issues of the case on merits. Here, in the instant case, the proceedings are attended by delay of ten years in initiation of inquiry. This delay has been explained by merely stating that it had occurred because of procedure involved. This may not satisfactorily explain the factor of delay. However, there are mitigating circumstances for the respondents in the sense that no proceedings were conducted and punishment awarded under Rule 10 of AIS (D&A) Rules, 1969. Therefore, by not condoning the delay, we merely hold that it shall be reckoned at the time of deciding the case in relation to other issues on merits.
32. Coming to the last of the issues, we have already held that there is no vagueness in the charges framed and no departmental rules have been infringed. We have further held that the rules of natural justice have been adhered to and that the applicant cannot take advantage of that. However, at the end of the day, we are swayed by the frank admission of the respondent-department that decisions in question had been taken by the applicant in the interest of the organization only and on re-examination, no allegation of misappropriation or malafide were found in OA No. 3557/2014. For the sake of clarity, we quote the relevant paragraph:-
It is further submitted that after examination, the misconduct on the part of the Applicant as contained in the Statement of Imputation of Misconduct or Misbehaviour were found to be proved, however, the Disciplinary Authority could not find any allegation of misappropriation or malafide and, therefore imposed the penalty of Censure only. In OA No. 3536/2014, the respondents in their counter again submitted:-
It is to be mentioned that on the recommendations of the CBI (PE-2-A/98) the Department of Food and Public Distribution on 19.9.2003 (Annexure R.1) had sent a proposal to initiate major penalty proceedings against the Applicant. As the proposal was found to be incomplete, the Department of Food & Public Distribution was requested have a fresh look into the charge sheet/imputations and modify them on 14.11.2003. Also, the copies of statement of witnesses and a note specifying the specific note/orders which support/rebut the contention of the Applicant were sought. The Department of Food and Public Distribution, which in turn had to consult the FCI in the matter, sent the modified charge sheet to the DoP&T only on 09.02.2005 (Annexure-R.2). While no evidence for any criminal conspiracy/misconduct and no malafide having been brought out it was found that the decision of the Applicant to engage labourers with a view to ending the strike was in the overall interest of the FCI even though the Applicant was not authorized to do so at his level. It was found that however for engaging the labourers without an express approval of the FCI Headquarters, the Applicant deserves and that the ends of justice would be met if only minor penalty proceedings were initiated against him. Hence, it is, of course, agreed that the applicant appears to have violated the norms but menoria is completely missing in both cases and there are no allegations relating to integrity against him. In other words, we find the action of the applicant was guided by purely a desire to protect the interest of the organization that he served and not to accrue any personal gains. In other words, it is a classic case of law versus justice. When such a conflict arises, it is our considered opinion that the justice that should emerge triumphant and not otherwise. Law and justice is well defined in Law Laxicon 3rd Edition which is reproduced as under:-
Law and justice. The picture of law triumphant and justice prostrate is not, I am aware, without admirers. To me, it is a sorry spectacle. The spirit of justice does not reside in formalities or words, nor is the triumph of its administration to be found in successfully picking a way between the pitfalls of technicality. After all, the law is, or ought to be, but the handmade of justice, and inflexibility, which is the most becoming robe of the latter, often serves to render the former grotesque. But any real inroad upon the rights and opportunities for defence of a person charged with a breach of the law, whereby the certainty of justice might be imperiled. I conceive to be a matter of the highest moment Lord Penzance, Combe v. Edwards (1878), LR 3 PD 142. In the matter of State of Punjab Vs. Saurabh Bakshi (Criminal Appeal No. 520/2015), the Honble Supreme Court has held as under:-
16. In Shyam Narain v. State (NCT of Delhi) MANU/SC/0543/2013 : (2013) 7 SCC 77 though in a different context while dealing with the issue of sentencing it has been stated that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
17. In the instant case the factum of rash and negligent driving has been established. This Court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems to us driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the centre stage.
The protagonists, as we perceive, have lost all respect for law. A man with the means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, worse then death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months.
33. We have further taken note in respect of the issue of delay that though delay by itself is not sufficient to quash the impugned order awarding the penalty upon the applicant yet the same is to be reckoned while deciding the proportionality of sentence. Admittedly, the action of the applicant was in the interest of the respondent organization and also that the applicant is an M.Tech from the Indian Institute of Technology, who has been suffering on account of this proceeding pending, both in matters of promotions and in reputation. The very fact is that pendency of the departmental proceeding is sufficient to reduce the morals of the officers down to the dumps. They do not remain capable of taking bold decisions which are required to be taken in the heat of work. At the same time, we also admit that such observations would have been more suitable for the Honble Supreme Court which is armed with powers under Section 142 and not with the Tribunal which is confined only to exercise of power under Rule 226 in a limited manner. Yet, taking into account the above factors, namely the applicant acting in the interest of the organization, no personal allegation of malafide or misappropriation being there and the immense delay caused in initiating the action against him and completing the same, we are prone to take a view that this action has already harmed the career prospects of the applicant and is likely to do so in a major way in the future when he comes up for being considered as Additional Secretary or for higher ranks. We are also afraid that if such exercise of uncontrolled exuberance in the interest of organization leads punishment, it will serve to dampen the other young officers, who sometimes exceed the law in the interest of the work and for the people. Therefore, taking note that while law has to be implemented what is more important is justice must be delivered. Keeping in view the facts of the case, we are of the view that the punishment inflicted in both the cases should not relate back to the date of issuance of chargememo, i.e., 11.02.2008 and 03.07.2008, but should relate back to the year to which the charges relate, i.e., 1998. In other words, the impact of the punishment should take effect from the date of the alleged charge, i.e., 1998, and not from the date the chargesheet was issued, i.e., 11.02.2008 and 03.07.2008. With this, the OA is disposed of. No order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/