Central Administrative Tribunal - Ernakulam
M.H.R Khasimi vs Union Of India on 27 July, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.1089/2013
Wednesday, this the 27th day of July, 2016
CORAM:
HON'BLE MR.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER
M.H.R Khasimi
S/o. Late Mohammed Khasim
Deputy Director of Census Operations, Directorate of
Census Operations, Lakshadweep,
Kavaratti, Residing at ' Type IV LPWD Quarters'
Kavaratti - 683 555 ... Applicant
(By Advocate: Mr.Shafik M.Abdulkhadir)
Versus
1. Union of India
Represented by Secretary
Ministry of Home Affairs
North Block, New Delhi - 110 011
2. The Registrar General, India
Ministry of Home Affairs, 2/A
Mansingh Road, New Delhi - 110 011 ... Respondents
(By Advocate Mr.K.S Dilip, ACGSC)
This Original Application having been heard on 30.6.2016 this
Tribunal on 27.7.2016 delivered the following :
ORDER
BY HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant is aggrieved by the imposition of penalty of reduction of pay for a period of three years without earning any increment during the period which had the effect of postponing of his increments, even though no guilt has been proved in the inquiry proceedings. While working as Dy.Director of Census Operations, Gujarat, a Rule 14 charge sheet was issued to him alleging tampering with the ACR of a subordinate officer and revising the grading. The inquiry officer has found the applicant not guilty of the charges. However, the disciplinary authority disagreed with the same and has imposed the above punishment. A review petition submitted has also been rejected. The applicant is presently working as the Dy.Director Census Operations in Lakshadweep. The Rule 14 charge sheet was issued for the following charges:-
'1. Removing a note sheet, and
2. Tampering of the ACR of one subordinate official during 2005-06 while working as Dy.Director of Census Operations, Karnataka Bangalore. '
2. By virtue of Office Order No.22015/1/04-05 dated 03.6.2005 the applicant was placed in charge of Census and Tabulation (C&T), Data Dissemination Unit, SRS, CRS and Cartography Section of the Office. As a consequence of above order all the section heads were requested to submit the files to the Dy.Director through M.H.R.Khasimi, the applicant. While so, as per a letter No.16013/23/2006-AD-IV dated 22.11.2006 Smt.Sadhana Khanna, Dy.Director, Office of the Registrar General India, New Delhi requested the applicant to furnish his comments on the letter of one Shri.K.V.Rajeshwar Rao, SI Gr.II addressed to Addl.Registrar General India regarding tampering of his ACR for the year 2005-06. The applicant in his capacity as a Controlling Officer of the Directorate of Census Operations Karnataka has replied to Smt.Sadhana Khanna, Dy.Director, ORGI New Delhi vide letter No.DCO/KAR/RTI-2006-2007 dated 06.12.2006 explaining the factual position of the matter. After a lapse of two and half years an inquiry was initiated against the applicant and Annexure -2 memorandum of Article of Charges were issued. An enquiry was conducted and an Inquiry Report was submitted as per letter dated 28.7.2010. The inquiry officer concluded as follows:-
'7.1.3. There is , as such, nothing on record to conclusively prove that the CO Shri.M.H.R, Khasimi tempered with the file- notes and replaced the original notes therein with a fresh set of notes, as has been alleged. '
3. The applicant alleges that the IA seems to have gone beyond the duty of the IA and has found that there has been tampering with the files, even though the original of the said file was not produced in the inquiry. The disciplinary authority disagreed with the enquiry authority and the applicant was served with a O.M No.30/14/2008-Vig. Dated 23.12.2011 issued by the Under Secretary of the 2nd respondent, asking him to submit his comments on the disagreement. The applicant submitted a detailed representation on 30.1.2012 specifically pointing out his innocence and the deliberate attempt to frame him. The impugned Annexure A-1 order is issued on 2.5.2013 imposing the punishment. The applicant filed a review application before the Hon'ble President on 27.5.2013. The same has been rejected as per a letter no.30/14/2008-Vig. Dated 26.7.2013 issued by the Under Secretary of the 2nd respondent, stating that as per Rule 22 of CCS (CCA) Rules it is not feasible. Applicant contends that the entire enquiry proceedings was initiated and conducted for tampering of an ACR of an employee without producing the original document and based on a Photocopy of the relevant document. The charge sheet is issued on 6.5.2009, three years after the alleged incident, enquiry commenced in 2010 and a punishment is imposed as per Annexure A-1 on 2.5.2013, three years after the enquiry report was submitted on 28.7.2010. Annexure A-1 is liable to be quashed for the reason of delay in issuing the charge sheet and initiation of disciplinary proceedings, as held by the Calcutta High Court in Damodar Valley Corporation and others v. Ballari Sarkar 2010 (1) SLR 496.
4. Applicant argues that the Annexure A-2 charge sheet itself is vitiated by incongruities, incorrect facts and issued without checking relevant facts. The articles of charges was (i)removing of note sheet (ii) tampering of ACR of an employee, Sri.Rajeswar Rao, by the applicant. It is stated in the Charge Sheet that ACRs of few officials of Directorate of Census Operations Karnataka were forwarded to Shri.Raghavendra Rao (the then Dy.Director) by Shri V.Gopinathan (the then Asst. Director ) on 30.5.2006 through a note recorded on file No.A-28013/1/2003-04, 2004-05, 2005-06. Shri M.H.R Khasimi, Dy.Director removed the note sheet and replaced the same with other set of notes and tampered with the remarks in ACR of Shri.Rajeshwar Rao SI Gr.II. In this connection it is pertinent to point out here that Sri.Gopinathan, who is said to have handed over the ACRs to Sri.Raghavendra Rao on 30.5.2006, was transferred to Tamilnadu as per Order No.1/4/2006-Ad.III dated 28.4.2006 and was relieved from DCO Karnataka on 5.5.2006 and reported at DCO Tamilnadu on 18.5.2006. Sri.Gopinathan was therefore not available on the day, to give the ACRs for review to Sri.Raghavendra Rao. Neither the Inquiry Officer, not the Disciplinary authority or the UPSC has considered these aspects.
5. The applicant was the incharge of the sections mentioned in Annexure A-3 office order and was therefore the Reporting Officer for the ACRs of Sectional Heads of these sections and Reviewing Officer to whom these sectional heads were reporting. There was a well defined system and established hierarchy by which reporting/reviewing of ACRs was being done, according to which, the first immediate officer under whom the official working will be the Reporting Officer. The next higher officer to the Reporting Officer will be the Reviewing Officer. In the instant case Shri.Rajeshwar Rao was working under Shri.V.Thippashetty, Asst.Director incharge of Census and Tabulation (C&T) who was the Reporting Officer for the ACR of Shri.Rajeshwar Rao. The applicant was the next higher officer to Shri.V.Thippashetty. Hence the applicant was Reviewing Officer of the ACR. The issue raised is that the applicant applied fluid for incorporating few corrections on his own remarks which had been projected by the Department as a misconduct purely to deny the promotion of Joint Director to the applicant. However, the application of fluid in the ACR has in no way adversly affected the career prospects of the official concerned (Rajeshwar Rao) as the applicant has rated him good which is not an adverse remark rather GOOD is a bench mark grading for the next promotion and the official got the same at a later stage. Shri.V.Gopinathan, the then Asst. Director was transferred to DCO Tamil Nadu and he was relieved from DCO Karnataka on 5.5.2006 and reported for duty on 18.5.2006 at Tamil Nadu as can be seen from Annexure A-13 and Annexure A-14. Applicant contests the fact that Shri.Gopinathan can give the ACR at DCO Karnataka to Shri.Raghavendra Rao on 30.5.2006 when he was already relieved from DCO Karnataka much earlier than this date. Copies of the transfer order, relieving order and joining report of Shri.Gopinathan obtained under RTI, were submitted during the inquiry to the Inquiry Officer. However, it was ignored by the Inquiry Officer. The statement of Sri.Raghavendra Rao, that he was given the ACR by Sri.Gopinathan is incorrect and the present punishment based on the same is also incorrect and biased. Before issuing Annexure A-3 charges, Addl.RGI as per his letter F.No.16013/23/2006-Ad.IV dated 19.7.2007 sought the comments/confirmation from Shri.Raghavendra Rao the then Dy.Director on the following points;
'1. Whether the Census and Tabulation Section and the data Centre were directly under your control.
2. If so, whether ACRs of the employees who were working in the above two sections and reporting to Shri.V.Thippasetty, ADCO (T) were reviewed by you.
3. The ACR of Shri.K.Rajeswar Rao SI Gr.II for the period 2005-2006 was reviewed by you.'
6. The true copy of the said letter is also produced and marked as Annexure A-16. It is surprising that the Addl.RGI has sought the comments only from Shri.Raghavendra Rao in order to ascertain the facts before issuing the charge sheet. He seems to have given a reply also stating that the review of ACR of Sri.Rajeswara Rao was done by him only and he was on leave and joined duty on 29.5.2006 and completed the ACRs on 29.5.2006 and 30.5.2006. Nothing is stated as to who has given the ACRs for review and thus this raising a doubt about the statement in Annexure A-3 charge sheet that the ACR were given by Shri.Gopinathan. As can be seen from Annexure A-17, Shri.Raghavendra Rao in his reply to Addl.RGI has misinformed the Addl.RGI, that he was reviewing officer for the ACRs of only those officials posted to work in Data Centre. As per Office Order No.22016/1/03-04 dated 25.2.2005, eight officials were posted to work in data centre. Details of the Reviewing Officer for the ACRs of those eight officials posted to work in data centre obtained under RTI reveals that he is the Reviewing Officer only for one official. As per article of charges ACRs were given to Shri Raghavendra Rao on 30.5.2006. Hence, applicant contests the fact that he starts writing on 29.5.2006 itself i.e one day before the receipt.
7. Applicant argues that Shri.Raghavendra Rao in the last para of his reply dated 29.7.2007 to Add.RGI has stated about the application of white fluid in the ACR. Shri.Rghavendra Rao retired from government service on 31.5.2006 and the ACRs were sent to ORGI on 23.6.2006. Addl.RGI has written letter to him on 19.7.2007. The application of white fluid in the ACR of Rajeshwar Rao, which is a confidential document and is not accessible to Raghavendra Rao after his retirement, is contested by the applicant. Moreover, the ACR was not issued to him for his perusal.
8. In the departmental inquiry held on 11.6.2010 and 12.6.2010 Shri.Raghavendra Rao the then Dy.Director (the so called reviewing officer) was made Witness No.1 and Shri.Thippashetty was made Witness No.2. But Shri.Gopinathan the then Asst. Director who is said to have given ACR was not made witness. In the inquiry, original ACR which is said to have been tampered was not produced for perusal and confirmation. Shri.Raghavendra Rao in his deposition has clearly stated in the inquiry that 'This is only a photo copy of the ACR I cannot say with certainity unless I look into the original' no efforts were taken to produce the original of the said document. This was not done by the enquiry officer which is a serious and grave error and has vitiated the enquiry process.
9. As regards the 1st charge, in para 7.1.3 page 9 of Annexure A-8, the applicant avers that the Inquiry Officer has categorically stated that 'there is as such nothing on record to prove that Shri.M.H.R Khasimi tampered with the file note and replaced the original notes therein with a fresh set of note as has been alleged.' As regards the 2 nd charge of tampering of the ACR, the same cannot be even inquired into, without the Original of the same. The Inquiry Officer has not proved this charge clearly as the inquiry was conducted without original ACR. However on the basis of xerox copy of the ACR the Inquiry Officer has concluded his findings with a suspicion only. The Disciplinary Authority has found that the charge can be considered as proved based on conjectures and surmises. ACRs of the officials were issued to reporting/reviewing officer by following a procedure and the same is also acknowledged by the reviewing/reporting officer in the previous years.
10. Relief sought by the applicant is to quash Annexure A-1 punishment order of the disciplinary authority and Annexure A-9 disagreement note and to declare that the applicant is entitled to be promoted along with his colleagues as Joint Director with effect from 31.7.2009 with all consequential benefits including arrears of salary.
11. The respondent in the reply statement submits that the case pertains to disciplinary proceedings initiated against the applicant, Shri.M.H.R Khasimi for unauthorizedly tampering of official documents. Shri.K.V Rajeshwara Rao, while working as Statistical Investigator Grade-II in the office of Directorate of Census Operations, Karnataka, was reporting to Shri.V.Thippasetty, who was the Assistant Director of Census Operation (T) during the period. The ACR of Shri.K.V Rajeshwara Rao for the year 2005- 06 were initiated/reported by Shri.V.Thippasetty and reviewed by the then Controlling Officer, Shri.S.R.Raghavendra Rao, Deputy Director. After retirement of Shri.S.R.Raghavendra Rao, Shri.M.H.R Khasimi, Deputy Director took charge as Controlling Officer of Directorate of Census Operations, Karnataka and while forwarding ACRs of Shri.K.V.Rajeshwara Rao for the year 2005-06 to Office of the Registrar General of India (RGI), unauthorizedly tampered with the remarks of Reviewing Authority. Subsequently, Shri Raghavendra Rao, the then Controlling Officer of Directorate of Census Operations, Karnataka also confirmed vide letter dated 29.7.2006 that he reviewed the ACRs of Shri Rajeshwara Rao and his remarks have been tampered with by the applicant. A charge sheet under Rule 14 of CCS (CCA) Rules,1965 was issued to the applicant vide memorandum dated 6.5.2009. Since, the applicant accepted part of the charge, an inquiry was conducted.The Inquiry Officer in his report did not clearly indicate his findings on charges levelled against the applicant. The Disciplinary Authority in its further observations under Rule 15(2) of CCS (CCA) Rules, 1965 indicated charges as proved. The Disciplinary Authority in agreement with UPSCs advise confirmed imposing of penalty on the applicant and imposed penalty vide order dated 2.5.2013. The applicant vide letter dated 27.5.2013 filed a Review Petition before the Hon'ble President against the penalty orders dated 2.5.2013. He was apprised of the rule position that the review petition dated 27.5.2013 was not feasible in view of Rule 22 of CCS (CCA) Rules, 1965.
12. The irregularities committed by the applicant came to notice only when an application under RTI Act, 2005 dated 3.8.2006 was filed by Shri.Rajeshwara Rao stating that his ACRs for the year 2005-06 have been tampered with. His appeal under RTI Act was decided before the Central Information Commission (CIC). As a consequence a Report vide this office letter dated 19.7.2007, was called for from Shri.Raghavendra Rao, DDCO (Retd.) as to who was authorized to review the ACRs of Shri.K.V Rajeshwara Rao. On receipt of communication, he personally visited the office of the Directorate of Census Operation (DCO), Karnataka where the incident took place and examined the relevant files. He reported tampering of office records by the applicant, who had succeeded him as Controlling Officer of DCO, Karnataka. A charge sheet under Rule 14 of CCS (CCA) Rules, 1965 was issued to him vide memorandum dated 6.5.2009. The applicant, in his reply dated 12.6.2009 stated that allegation relating to removal of note sheet and its replacement with another set of notes may not be correct. However, relating to other charge, he stated that as In-charge of C&T, he was competent to review the ACRs of Shri.Rajeshwara Rao, S.I.Gr.II but he did not adhere to procedure for which he expressed regret.
13. Since the applicant accepted only part of the charge, an inquiry was conducted. Shri.A.K.Saxena, ARG and Shri.Surender Kumar, Assistant Director were appointed Inquiry Officer and Presenting Officer respectively to look into the charges levelled against the applicant vide orders dated 21.7.2009. The respondent argues that the Inquiry Officer in his report did not clearly indicate his findings on charges levelled against the applicant and did not arrive at a conclusion in his Inquiry Report as argued by the applicant in rejoinder. Hence the disciplinary authority had to arrive at his conclusions which he did so by recording his observations under Rule 15(2) of CCS (CCA) Rules, 1965 and held that the charge was proved. The Disagreement Note of the Disciplinary Authority with the Inquiry Report was forwarded to the applicant for his comments vide Office Memorandum dated 23.12.2011. The Disagreement note recorded a finding of tampering of official records by the C.O in the official laid down procedure for submission of ACRs. The procedure followed for reviewing the ACR of Sri.Rajeshwara Rao was incorrect, which has also been proved by the Inquiry Officer. Comments of the applicant on Disagreement Note was not found tenable and was not accepted by the Disciplinary Authority and tentatively approved imposition of suitable major penalty and forwarded the case to UPSC for seeking its advice in the matter. In Annexure R-6 UPSC has recorded its detailed observations in para 4.1 to 4.5 and arrived at the conclusion of preponderance of probability strongly suggesting that charged officer had tampered with the official records as alleged in the article of charge. UPSC vide its letter dated 9.4.2013 advised that the ends of justice would be met by imposing following penalty on the applicant:
'Reduction to a lower stage in the time scale of pay for a period of 3 years with immediate effect and that the Government Servant will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay.'
14. The applicant vide letter dated 27.5.2013 filed a Review Petition before the Hon'ble President against the penalty orders dated 2.5.2013. He was apprised of the Rule position that the request/review petition dated 27.5.2013 was not feasible in view of the Rule 22 of CCS (CCA) Rules, 1965 which states that :
'no appeal shall lie against any order made by the President'.
15. The speaking orders/penalty orders dated 2.5.2013 were passed by the Disciplinary Authority after considering the representation dated 30.1.2012 made by the applicant and only after applying its mind. The penalty has been imposed on the applicant after following the prescribed procedure and as per the provisions of Chapter XVI of Vigilance Manual.
16. It is submitted that the official document tampered by the applicant i.e. ACR was the certified copy of the Original ACRs and this fact has never been concealed by the Disciplinary Authority. The applicant has accepted that the ACR was written by him and he has further clarified that he was the Competent Authority to write the ACR of Shri.Rajeshwara Rao. The charge sheet in the matter was issued on 6.5.2009. Thereafter, Inquiry Officer in the matter was appointed vide order dated 21.7.2009. The Inquiry Officer submitted his Report on 28.9.2010. The Disciplinary Authority after examining the case and in disagreement with the findings of the Inquiry Officer vide Office Memorandum dated 23.12.2011 forwarded its views/observations in the matter to the applicant for furnishing his comments on the same. The Disciplinary Authority thereafter tentatively decided to impose major penalty on the applicant. The case was further forwarded to the CVC for seeking its advice in the matter. The Disciplinary Authority tentatively approved imposition of suitable major penalty on the applicant. Thereafter, the case was referred to UPSC for seeking its advice in the matter. UPSC vide its letter dated 9.4.2013 tendered its advice in the matter. The Disciplinary Authority in agreement with the advice tendered by the UPSC, imposed major penalty on the applicant vide its orders dated 2.5.2013. Thus, the case was examined in consultation with UPSC and MHA and was continuously under process and as such no delay has occurred in the matter as alleged by applicant.
17. With regard to the contentions in para 5(c) of the Ground, respondent argues that Shri.V.Gopinathan was transferred from DCO, Karnataka to DCO, Tamil Nadu on 5.5.2006. However, this was not relevant to the article of charge of tampering of official documents as the date of handing over the ACRs to Shri.Raghavendra Rao has not been mentioned in the material evidence/document submitted by Shri.Raghavendra Rao. Apparently, this happened during the month of May, 2006. Disciplinary Authority in its order dated 2.5.2013 has considered the issue while deciding the penalty.
The Inquiry Officer has also taken note of this fact in his Inquiry Report and mentioned that perhaps the ACRs were submitted to Shri.Raghavendra Rao by Shri.Gopinathan sometime in early May, 2006 before his release from DCO, Karnataka on 5.5.2006 to join DCO, Tamil Nadu. As the tampering of remarks was one of the main charge in the matter against the CO, date of handing over the ACRs is not material. With regard to the contentions in para 5(D) of the Ground, respondent submits that the Inquiry Officer in his report has mentioned that the procedure of reviewing the ACRs of Shri.Rajeshwara Rao by the applicant was not appropriate and not done with the approval of competent authority and disciplinary authority has hence drawn a conclusion thereon. Respondent admits that the memorandum of Article of charge merely stipulates that the applicant tampered with the official records. However, in the statement of imputation of misconduct in support of the Articles of charges, the date had inadvertently been mentioned as 30.5.2006. Shri.Raghavendra Rao has nowhere mentioned that the ACRs were moved on the said date. The Inquiry Officer has also in the Inquiry Report mentioned that perhaps the file and the ACRs were submitted by Shri.Gopinathan sometime during early May, 2006 before his release from DCO, Karnataka to join DCO, Tamil Nadu. The UPSC in its advice dated 9.4.2013 has also observed the following:
'The deposition of Shri.S.R.Raghavendra Rao and Shri.Thipasetty clearly show that Shri.S.R Raghavendra Rao was the actual Reviewing Officer who recorded his remarks in the ACR of Shri.K.V.Rajeshwara Rao for the period 2005-06.'
18. Refuting the contentions in para 5(E) of the Ground, it is submitted that the contentions raised there by the applicant are only his apprehensions.
As the tampering of remarks was the main charge in the matter against the CO, date of handing over the ACRs is perhaps immaterial. The documents mentioned by the applicant were part of the charge sheet and the same has been looked into/inquired into by the Inquiry Officer during the inquiry proceedings. In the Inquiry Report, it was observed that Shri.Rajeshwara Rao was posted under Shri.Raghavendra Rao and as such Raghavendra Rao was competent to review the ACR of Shri.Rajeshwara Rao. The I.O as well as Disciplinary Authority had judiciously examined the documents available on record, witness of the case before arriving at a decision in the matter.
19. Regarding the contentions in Ground 5(F), it is submitted that the allegation of the applicant that the removal of Shri.Gopinathan as witness by the department, intentionally, is not true. Again it is reiterated that the tampering of remarks was one of the main charge in the matter against the CO, date of handing over the ACRs by Shri.Gopinathan is perhaps immaterial. The state witnesses produced during the inquiry proceedings were all relevant to the article of charges levelled against the applicant. The applicant never preferred to produce any witness in his defence during the inquiry proceedings. The fact that the ACRs produced during the inquiry proceedings were certified copies was never concealed from the applicant. The Disciplinary Authority conveyed this fact to the applicant vide Office Memorandum dated 23.12.2011. As the charge of tampering of ACRs was levelled after Shri.Raghavendra Rao had seen the original ACR and expressed his opinion before the issue of chargesheet though later on during the inquiry proceedings, the original ACR of Shri.Rajeshwara Rao was not traceable. On the basis of submissions made by the applicant in his letter dated 12.6.2009 and the hearing dated 11.6.2010, the Disciplinary Authority and the UPSC found the charge of tampering of ACR by the applicant as proved. With regard to the contentions in para 5(G) of the Ground, respondent submits that the applicant has only mentioned part of the statement of the Inquiry Officer in his report that 'there is as such nothing on record to prove that the applicant tampered with the File Note and replaced the original notes therein with a fresh set of note as has been alleged'. The Disciplinary Authority vide Office Memorandum dated 23.12.2011 disagreed with this finding and recorded his finding that the DCO follows a procedure for submission of ACRs for reporting/reviewing. Procedurally, the ACR of an individual is submitted by the Administration for Reporting/Reviewing. The same is also acknowledged by the Reporting/Reviewing Officer. But this has not been done for the year 2005- 06 as Shri.S.R.Raghavendra Rao has reviewed the ACRs of two officers, namely, Jagadeesha, OS, Admn and Nirupama Devi, OS, Admn. Moreover, there is no record indicating acknowledgment of the ACRs of the said individual by Shri.S.R.Raghavendra Rao. This substantiates that for the year 2005-06 the Note sheet of the file on the subject seems to be replaced, by the applicant conniving with the dealing hand/officer. The note sheet has been replaced by the applicant in order to establish himself as the Reviewing Officer of Shri.Rajeshwara Rao. This also leads and substantiates the charge of tampering of the ACR of Shri.Rajeshwara Rao for the period 2005-06.
20. Regarding the contentions in para 5(H) of the Ground, it is submitted that the Disciplinary Authority has clearly intimated the applicant vide Office Memorandum dated 23.12.2011 that the original ACR for the period 2005-06 is not available in the Dossier. Neither was any information about movement of ACR of the year available. However, photocopy of the ACR (2005-06) is available, which indicates visible changes in sub paras of part- IV of the ACR form.
21. The respondent submits that the speaking orders/penalty orders dated 2.5.2013 were passed by the Disciplinary Authority only after considering the representation dated 30.01.2012 made by the applicant.
22. The respondent contests that the contentions in para 5(1) of the Ground that the inquiry was biased and devoid of rationality as not correct and strongly denied, as the applicant was given full opportunity to defend himself during the inquiry proceedings and all the procedures as laid down under Rule 14 of CCS (CCA) Rules, 1965 were strictly followed.
23. Heard learned counsel for parties and perused the written submissions made.
24. The inquiry officer in para 7.1.1 on physical examination of file A- 28013/1/2003-04, 2004-05, 2005-06 has recorded as follows:-
'7.1.1 - the C.O Shri.Khasimi had recorded his decision 'Since I am the Reviewing Officer in respect of the above ACRs. These ACRs need not be marked to Shri.S.R.Raghavendra Rao, Deputy Director.' vide note dated 31st May, 2006 (para 21) in response to notes dated 30 th May 2006 submitted to him by the dealing hand and the ADCO (Adm). It is a bit surprising that Shri.Khasimi neither got his above decision approved by the competent authority nor sent it for information of the competent authority. Shri.Khasimi, in fact after recording the above decision did not mark the file to anyone further.
25. The Inquiry Officer in para 7.1.2 further records as follows:-
'Para 7.1.2. The note sheet referred to by Shri.S.R.Raghavendra Rao (in his reply dated 29.7.2007) bearing notes said to have been written by Shri.V.Gopinathan, the then ADCO (Admn) by which ACRs of some of the officials including that of Shri.K.V.Rajeswara Rao were forwarded to Shri.S.R.Raghavendra Rao and on which Shri.Raghavendra Rao is stated to have recorded his remarks after completing the ACRs on 29 th /30th June 2006 was not available in the file and could not be traced. '
26. The 1nquiry Officer in analysis and assessment of evidence in para 6.17 earlier also records as follows :-
'6.17 A simple reading of Items 1 to 6 (Part IV - Remarks by the Reviewing Officer; pages 6 & 7 of the ACR Form) indicate that the Reviewing officer is required to record against each of the 6 logical and sequential set of questions viz. Item 1- 'Length of service under the Reviewing Officer' to Item 6 - 'Has the officer any special characteristics and /or any abilities which would justify his/her selection for special assignment or out of turn promotion? If so, specify.', his remarks on the assessment made by the Reporting Officer of the work stated to have been done by the officer reported upon during the period under report. While recording response to these questions it is logical and normal for the Reporting Officer to start at Question 1 and conclude at Question 6 in that order. It sounds quite unlikely that the Reviewing Officer after having carefully gone through the assessment of the Reporting Officer and having made up his mind on as crucial a matter as 'Grading' and even reflected it on the ACR would suddently disagree with his own assessment to an extent which would force him to revisit his earlier recorded remarks, use correcting fluid and change them substantially. Had this been so, the change in mind should also have been reflected on page 7 of the ACR and which surprisingly is not so. '
27. Hence the IO had expressed a doubt as above but failed to draw a conclusion for whatever reason. The inquiry was not done by an independent office like the CVC. It was done by an ex Assistant Registrar General who would have been an ex-colleague and hence the hesitation to draw a conclusion in the matter of the charge levied. This was despite the recording of Regavendra Rao in his Annexure A-17 report that ACR of Rajeshwara Rao was duly completed by him.
28. Despite the above analysis in para 6.17 the Inquiry Officer arrives at the conclusion in para 7.1.3 that :
'7.13 There is, as such, nothing on record to conclusively prove that the C O Shri.M.H.R Khasimi tempered with the file-notes and replaced the original notes therein with a fresh set of notes, as has been alleged. '
29. Hence the Disciplinary Authority's decision to disagree and give a chance to applicant to forward his observations on the disagreement note, on account of above and the fact that Inquiry Officer had not drawn a conclusion on the inquiry, is in order. The Inquiry Officer, it appears, had left no other option to the disciplinary authority but to draw his own conclusion in view of the fact that IO's own analysis and assessment and findings on tampering of note sheet were not drawn from each other in the findings. Further, on the allegation of tampering of ACR the Inquiry Officer did not draw a conclusion of his own. It was left to the Disciplinary Authority to draw his conclusions after giving the applicant a chance to comment on the disagreement note. Drawing or making a disagreement note by the disciplinary authority is a procedure allowed by the CCS (CCA) Rules. The disciplinary authority has followed the said procedure. The applicant was given opportunity to offer his comments on the disagreement note prepared by the Disciplinary Authority.
30. The disciplinary authority had noted that during inquiry proceedings of date 11.6.2010 it was submitted that Shri.Rajeshwar Rao was working under the control of Shri.V.Thipasetty and Ragavendra Rao in Data Centre and the weekly/monthly reports were submitted to Shri.Ragavendra Rao.
Shri.Thipasetty had deposed during inquiry proceedings that Shri.Raghavendra Rao as in charge of Census & Tabluation and NIC-NCO was competent to write the ACR of Shri.Rajeshwara Rao. This would substantiate the fact that Raghavendra Rao and not the applicant was the competent reporting officer.
31. The applicant alleges that UPSC has acted mechanically in the matter and is unaware of the procedure adopted in the office of the second respondent and has submitted its advice without application of mind. The UPSC is the constitutional body to whom all Group B and Group A disciplinary cases of the Government of India including all Central Services across the country are referred. Hence, it has the experience of over 60 years of existence and experience of dealing with advice on disciplinary matters and so the allegation made by the applicant to the contra and the casual and unwarranted remark on the constitutional body is unpalatable. The statutory body, Central Vigilance Commission was also consulted before the charge sheet was issued.
32. The applicant has also made changes in the ACR reporting and reviewing procedure suo-moto without any approval from the competent authority. Holding charge of an office did not authorise applicant to change the reviewing procedure followed hitherto, suo-moto, without approval of the competent authority. This itself shakes the foundation of the applicant's contention that he was the authority authorised to handle office noting or ACR document of Shri.Rajeshwara Rao in the absence of the actual reviewing authority in the respondent office. Further an officer of applicant's seniority should have been aware that erasures/deletions/corrections are made under signature and not by affixing white fluid which could be attempted by any person adversely disposed and is frowned upon as improper procedure. The applicant should have raised his objection on the documentary proof of photocopy of ACR produced, in the enquiry itself, which he failed to do so. Hence, raising the same at this remote stage is not warranted nor tenable.
33. The respondent has followed the procedure for disciplinary inquiry as provided in CCS (CCA) Rules. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made said the Apex Court in B.C.Chaturvedi v. Union of India and others (1995) 6 SCC 749. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of Law. While looking into charges of misconduct by a public servant, the Court is expected to examine whether the inquiry was done by a competent officer and due procedure was followed and there was no violation of natural justice. We could see no procedural flaws or violation of the principles of natural justice. The finding should be based on some evidence, and the technical rules of Evidence Act nor proof of fact or evidence as defined therein apply to disciplinary proceeding. The Tribunal in its power of judicial review does not re-appreciate evidence and arrive at its own independent findings of evidence. The conclusion of the disciplinary authority has also been assessed by the UPSC which is an expert body for offering advice on disciplinary matters, concluding in application/non-application of one of the punishments prescribed under Rule 14 of CCS (CCA) Rules. The matter having been examined by the disciplinary authority and the constitutional body UPSC does not warrant any interference by the Tribunal.
34. The Original Application is dismissed. No costs.
(MRS.P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv