Central Administrative Tribunal - Ernakulam
P.P. Balasubramanian (Retrd.) vs Union Of India on 1 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 506 of 2009
Friday, this the 1st day of April, 2011
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
P.P. Balasubramanian (Retrd.),
D1, Sivasakthi Apartments,
Sanskrit College Road,
Tripunithura-682301,
Formerly Director, Directorate of
Cashew-nut & Cocoa Development,
Kochi. ..... Applicant
(By Advocate - Mr. T. Ravikumar)
V e r s u s
1. Union of India, rep. by the Secretary
to Government of India, Ministry of Agriculture,
Department of Agriculture & Co-operation,
Krishi Bhavan, New Delhi-110001.
2. The Secretary to Government of India,
Ministry of Agriculture, Department of
Agriculture & Co-operation, Krishi Bhavan,
New Delhi-110001.
3. The Director, Horticulture, Ministry of Agriculture,
Department of Agriculture & Co-operation, Krishi
Bhavan, New Delhi-110001.
4. The Horticulture Commissioner, Department of
Agriculture & Co-operation, Ministry of Agriculture &
Co-operation, Krishi Bhavan, New Delhi.
5. The Chief Vigilance Officer & Joint Secretary,
Government of India, Ministry of Agriculture,
(Department of Agriculture & Co-operation),
Krishi Bhavan, New Delhi-110001. ..... Respondents
(By Advocate - Mr. P.S. Biju, ACGSC)
This application having been heard on 9.3.2011, the Tribunal on
01.04.11 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member-
This O.A. has been filed by the applicant for the following reliefs :
"(i) to direct the respondents to drop all further proceedings with regard to the inquiry;
(ii) to direct the respondents that if at all an inquiry is a must it shall be conducted at Kochi by providing the defense assistant as requested by the applicant as expeditiously as possible;
(iii) to direct the respondents to disburse the gratuity and to grant commutation of pension;
(iv) to grant such other reliefs as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and to grant the cost of this original application."
2. The applicant voluntarily retired from service on 01.05.2006 as Director, Directorate of Cashew-nut & Cocoa Development, Kochi, after 38 years of service. The applicant was served with Annexure A-1 memorandum of charges dated 13.03.2006 on 17.03.2006. The charges pertain to the incidents which had taken place in the years 2001 to 2003. An enquiry was proposed to be held at New Delhi. Aggrieved, The applicant approached this Tribunal for a direction to the authorities to hold the enquiry at Kochi. By order dated 13.03.2008, this Tribunal directed the applicant to submit a representation to the disciplinary authority to consider the above request. On filing Writ Petition No. 14882/2008, Hon'ble High Court of Kerala also directed the applicant vide judgement dated 02.06.2008 to file a representation before the respondents. The applicant filed Annexure A-8 representation dated 29.06.2008 and A-9 representation dated 26.11.2008. By Annexure A-12, the applicant had also requested for his retiral benefits. Aggrieved by the non-consideration of the representations filed by the applicant as per the direction of Hon'ble High Court of Kerala and this Tribunal, this O.A. has been filed.
3. The applicant submits that the charges framed against him are for violation of Rule 3(1)(ii) & 3(1)(iii) of the CCS Conduct Rules, 1964. The charges state that the applicant did not comply with the guidelines for grant of aid to establish Cocoa and Cashew farms during the years 2001 to 2003. A preliminary enquiry was conducted in December, 2003, without giving an opportunity of being heard to the applicant. In the reply statement filed by the respondents in O.A. No. 259/2006 by which the applicant challenged Annexure A/1, they have stated that a decision to initiate the proceedings against the applicant under Rule 14 of CCS (CCA) Rules, 1965, was taken on 12.07.2005 well before the applicant applied for voluntary retirement. The articles of charge were prepared and subsequently issued on 30th January, 2006 which were received by him on 17.03.2006. An enquiry officer was appointed by order dated 03.11.2006. Meanwhile, the applicant was allowed to retire on VRS on 01.05.2006. Voluntary retirement can be denied if an employee is placed under suspension for the purpose of any disciplinary enquiry. The applicant was permitted to exercise his option to take voluntary retirement as no disciplinary proceedings had been ordered to be initiated against the applicant.
4. The applicant further submitted that while working as Deputy Director (Development) he held the charge of Director as per order dated 27.09.1984. He was forced to approach this Tribunal by filing O.A. No. 174/1990 for getting promoted as Director with effect from 18.05.1988 from which date he became fully qualified for the said post and also for getting the charge allowance in terms of F.R. 49 for holding the additional charge as Director from 08.10.1984 to 20.07.1993. During the pendency of the O.A., the applicant was promoted as Director. He again made a representation dated 24.08.1994 for granting the charge allowance during the aforesaid period.
5. The applicant further contended that the enquiry contemplated by Annexure A-1 is against Rule 9 of the CCS (Pension) Rules. The applicant is being victimized by the former Director (Horticulture) as he had to express an unconditional apology in a Contempt Petition before this Tribunal. The present Director of DCCD is also instrumental to initiate the disciplinary proceedings against the applicant because the applicant had to proceed against him when he was the Administrative Officer under him for gross irregularity. The enquiry officer disallowed his request to conduct the enquiry at Kochi where all the witnesses and the documents are available. There is no allegation that the applicant was caused any pecuniary loss to the Government. The Joint Secretary and CVC who issued the charge sheet is not officer superior to the applicant and is not legally competent to issue the charge sheet.
6. The applicant further contended that the 8 articles of charges are virtually stereo type repetition of the same allegations. In effect, there is only one set of offence alleged on the applicant which involved 8 beneficiaries. There is ambiguity as to the period of offences alleged. The counsel for the applicant relied on the decisions in the following cases to buttress his arguments:
(i) 2007 (1) SCC 338
(ii) 2010 (2) SCC 772
(iii) 1984 KLT 226
(iv) 2006 (8) SCC 776
(v) Rule 9 of CCS Pension Rules
(vi) 1984 KLT 228
(vii) 2010 (1) KHC 704
(viii) 2010 (1) KHC 708
7. The respondents submitted that the grievance put up by the applicant in paras 1 to 17 of the present O.A. as well as the grounds mentioned are the same as were brought by him in O.A. No. 259/2006. The applicant has not brought any new facts to the present O.A. It was further submitted that oral enquiry at Cochin was to commence on 23.10.2009. The new enquiry officer has been asked to complete the proceedings expeditiously. The applicant's representation dated 24.09.1994 for charge allowance was disposed of vide letter dated 23.04.1996. The matters regarding disciplinary proceedings and other issues like additional remuneration and retiral benefits stand settled to the extent rules permit. Therefore, the O.A should be dismissed, being devoid of merits.
8. In the rejoinder, the applicant submitted that 5 enquiry officers have been appointed within a span of three and a half years and the present enquiry officer is the 6th enquiry officer. When an officer is required to discharge all the duties of another post under F.R. 49 and as per Government of India, Department of Personnel & Training, O.M. No. 4/2/89-Estt.(Pay-II) dated 11.08.1989, he should be allowed additional remuneration.
9. In the reply statement further filed on behalf of the respondents, it was clarified that the post of Joint Secretary to Government of India in the Ministry of Agriculture is in the revised scale of pay of PB-4 (Rs. 37400- 67000) with Grade Pay of Rs. 10000/-. The post of Director is equivalent to Deputy Secretary to Government of India, so far as the pay scale is concerned.
10. We have heard Mr. T. Ravikumar, learned counsel for the applicant and Mr. P.S. Biju, ACGSC, learned counsel for the respondents and perused the records
11. The procedure to be followed in disciplinary cases against a Government servant is laid down in detail in the CCS (CCA) Rules, 1965, which have been framed in conformity with the provisions of Article 311 of the Constitution. It is absolutely necessary that the procedure and various instructions issued therein are followed rigidly. Any failure to observe proper procedure either willfully or by negligence will vitiate the entire proceedings. The procedure reads as under:
"PRELIMINARY ENQUIRY
1. Whenever intimation is received about the commission of an offence by an employee, a preliminary enquiry is conducted, not necessarily by the appropriate disciplinary authority. This is held for the purpose of collection of facts in regard to the conduct and work of the Government servant concerned in which he may or he may not be associated. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of the concerned authority. At this enquiry, all available evidences and relevant documents should be collected and in important cases, evidences of witnesses be reduced to writing and got signed by them, if possible, in the presence of the employee concerned. During the course of such an enquiry, for the sake of fairness, the Government servant complained against should normally be given an opportunity to say what he may have to say about the allegations against him to find out if he is in a position to give any satisfactory information or explanation which may render any further investigation unnecessary.
2. The preliminary enquiry is in the nature of a `fact-finding enquiry' where there can be ex parte examination or investigation and ex parte reports. The investigation report along with the preliminary evidences collected is then examined by the appropriate authority to come to a decision whether a prima facie case exists for initiation of formal disciplinary proceedings. The officer responsible for the decision should take care not to express, as for as possible, any definite opinion on the merits of the final outcome of the case.
3. The question to be decided at this stage is not whether a Government servant is guilty or not of an allegation. It is to be seen whether a prima facie case exists of a certain offence/misconduct/misbehavior/dereliction of duty. It is just to find out whether an offence has taken place and if so, whether the Government servant is prima facie involved in it. If there is prima facie evidence of commission of a criminal offence beyond reasonable doubt, initiation of criminal proceedings is to be considered. If, on the other hand, prima facie evidence is based only on preponderance of probability, then departmental proceedings may be appropriate."
(emphasis supplied) In the instant case, the preliminary enquiry is vitiated by not giving the applicant an opportunity to submit his version of the incidents relied upon by the respondents to proceed against him. The allegation of the applicant is that he was being victimized by a former Director of Horticulture and the present Director of DCCD. The facts that a former Director of Horticulture had to file an unconditional apology in a contempt case initiated by the applicant and that the action was taken by the applicant against the present Director, DCCD when he was Administrative Officer under him are not disputed. Not only Caesar, but his wife also should be above suspicion. The suspicion that the enquiry originated from vendetta could have been removed, had the applicant been given an opportunity to submit his version of the incidents and his version was considered before a decision to proceed against him was taken.
12. If the charges against the applicant were serious, he should have been put under suspension. But he was allowed to continue in his post from 12.07.2005 to 01.05.2006. Again, if an enquiry was contemplated, the applicant should not have been allowed to take voluntary retirement on 01.05.2006. As per guidelines of acceptance of notice under Rule 48-A of CCS (Pension) Rules, 1972, a notice of voluntary retirement given after completion of twenty years' qualifying service will require acceptance by the appointing authority if the date of retirement on the expiry of the notice would be earlier than the date on which the Government servant concerned could have retired voluntarily under the existing rules applicable to him [e.g., FR 56 (k), Rule 48 of the Pension Rules, Article 459 (i) of CSRs or any other similar rule]. Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case, or (b) in which prosecution is contemplated or may have been launched in a Court of Law against the Government servant concerned. In the instant case, inspite of having initiated disciplinary proceedings against the applicant for a major penalty under Rule 14 of CCS (CCA) Rules, 1965, the applicant was allowed to retire voluntarily. The unavoidable inference is that the charges are not serious.
13. The applicant had a long standing dispute with the respondents on payment of additional charge allowances for discharging duties of the Director of DCCD from 08.10.84 onwards. He was denied leave. He had been fighting a legal battle with the respondents to get the enquiry held in Kochi where all documents and witness are available. The initial decision to hold the enquiry in Delhi could be justified only if the intention was to harass the applicant to the maximum extent. The sum and substance of all the 8 charges is that by certain omissions and commissions on the part of the applicant, the subsidy amount for cashew/cocoa nursery was not utilised and thus caused financial loss to the State ex-chequer. It is too far fetched to say that non utilisation of subsidy amount has caused loss to State ex-chequer.
14. In the above backdrop, the onus is on the respondents to show that they were motivated solely by the desire to maintain purity and effectiveness in administration to take action against the applicant for the alleged non-utilization of funds. In our view, they have miserably failed in showing themselves in good light. Procedural lapses, if any, on the part of the applicant that resulted in in the non-utilisation of the subsidy amount should have been set right in time by the respondents by means of periodical review of performance and by taking corrective action in the relevant financial year. If the applicant was not amenable to correction strict action should have been taken against him immediately after the closure of the financial year. The respondents have no case that they have followed the above routine monitoring for implementing any scheme. Instead, they are at their frivolous best in stating that non-utilisation of the subsidy amount for the designated purpose of establishing regional nursery of cocoa or cashew has caused pecuniary loss to the State ex- chequer. It is a moot point for the respondents to ponder over whether any officer in charge of implementing a scheme can ever escape disciplinary action for non utilisation of funds, if decision is taken to proceed against him without giving him an opportunity of being heard. There is no charge against the applicant that he misappropriated subsidy amount or wrongly used it causing loss to the State.
15. The disciplinary proceedings for which a decision was taken on 12.07.2005, have not progressed much even in 2011. Meanwhile, six enquiry officers have been appointed. The applicant who retired almost 5 years ago is deprived of his retiral benefits on account of the enquiry on certain incidents of non utilization of funds that happened almost 10 years ago. The respondents have no urgency to complete the enquiry. The applicant, who has retired, is in a vulnerable position financially and physically, to defend himself effectively. The long delay in conducting and concluding the enquiry especially against a retired employee puts him in jeopardy. It is against the principles of natural justice. In 1984 KLT 226, the Hon'ble High Court of Kerala held as under :
"No fair and effective enquiry can be conducted unless it commences within a reasonable time after the incident. To call upon an employee to defend himself at this distance of time is probably to put him under considerable disadvantage and this deny him the benefit of natural justice."
In the case of a retired employee, the disadvantage is much greater.
16. In the conspectus of the facts and circumstances of this case, the nature of the charges against the applicant, the omissions and commissions on the part of the respondents and the unconscionable delay in conducting the enquiry, we are of the considered view that proceeding further with the enquiry against the applicant would be a mockery of justice and fair play. Delay is denial of justice. Withholding the retiral benefits of the applicant any further would be gross injustice. In the result, the O.A. is allowed as under.
17. In view of the above, we quash and set aside the charge sheet and the disciplinary proceedings against the applicant. The respondents are directed to disburse all the retiral benefits to the applicant within a period of 60 days from the date of receipt of a copy of this order.
18. No order as to costs.
(Dated, the 1st April , 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.