Central Administrative Tribunal - Mumbai
Vivek Tripathi vs Hindustan Copper Limited on 5 February, 2025
1 OA No.333/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION NO.333/2024
Dated this Wednesday the 05th day of February, 2025.
Coram: Hon'ble Mr.Justice M.G. Sewlikar, Member (J)
Hon'ble Mr.Shri Krishna, Member (A)
Vivek Tripathi,
Deputy General Manager,
(Finance: Internal Audit),
Taloja Copper Project,
Hindustan Copper Ltd.,
Having address at:
C/o Hindustan Copper Ltd.,
Plot No.E-33 to E-36, MIDC Area,
P.O. Taloja, Dist.: Raigad,
Maharashtra - 410 208. .. Applicant.
(By Advocate Shri Priyanka Kumar)
Versus
1. M/s Hindustan Copper Ltd.,
2. Mr.Ghanshyam Sharma,
Director (Finance) & CMD
3. Ms.Chitra Subramaniam,
Manager (Human Resources)
2 OA No.333/2024
All having address at:
C/o Hindustan Copper Ltd.,
1, Ashutosh Chowdhury Avenue,
Kolkata - 700 019
Through: Hindustan Copper Ltd.,
Plot No.E-33 to E-36, MIDC Area,
P.O. Taloja, Dist. Raigad,
Maharashtra - 410 208. .. Respondents.
(By Advocate Dr. V.S. Masurkar).
Order reserved on: 27.08.2024
Order pronounced on:05.02.2025
ORDER
Per : Shri Krishna, Member (A)
The applicant has filed this O.A. under Section 19 of the AT Act, 1985 to claim the following reliefs:
"a)That this Hon'ble Tribunal may be pleased to quash and set aside the impugned Orders dated 16.12.2021, 25.01.2022 passed by the Disciplinary Authority and Order dated 23.05.2022 passed by the Appellate Authority marked as Annexure 'A1', 'A2', and 'A3' respectively, being illegal, arbitrary and in violation of the provisions of HCL CDA Rules, CVC, DoPT, DPE guidelines, being against the settled principles of law and against the Constitutional Rights of the Applicant;
b) That this Hon'ble Tribunal may be pleased to quash and set aside the impugned Order dated 30.06.2022 marked as Annexure 'A4' passed by the Reviewing Authority being illegal, arbitrary and in violation of the provisions of HCL CDA Rules, DVC, DoPT, DPE guidelines, being against the 3 OA No.333/2024 settled principles of Law and against the Constitutional Rights of the Applicant;
c) That this Hon'ble Tribunal may be pleased to quash and set aside the impugned Order dated 29.03.2023 marked as Annexure 'A5' passed by the Reviewing Authority being illegal, arbitrary & violative of the prescribed provisions of HCL CDA Rules, CVC, DoPT, DPE guidelines, being against the settled principles of Law and against the Constitutional Rights of the Applicant.
d) That this Hon'ble Tribunal may be pleased to quash and set aside the impugned Order dated 04.08.2023 marked as Annexure 'A6' passed by Manager (Human Resources) being illegal, arbitrary & violative of the prescribed provisions of HCL CDA Rules, CPGRAMS, CVC, DoPT, DPE guidelines, being against the settled principles of Law and against the Constitutional Rights of the Applicant;
e) That this Hon'ble Tribunal may be pleased to quash and set aside the impugned Order dated 23.11.2023 marked as Annexure 'A7' passed by General Manager (Human Resources) being arbitrary & violative of the prescribed provisions of HCL CDA Rules, CPGRAMS, CVC, DoPT, DPE guidelines, being against the settled principles of Law and against the Constitutional Rights of the Applicant;
f) That this Hon'ble Tribunal may be pleased to direct the Respondents to restore the Basic Pay of Rs.1,64,100.00 and Post of General Manager (Finance) Grade 8 of the Applicant with effect from 25.01.2022 and pay him arrears of the short fall of all the consequential benefits for the period from 26.01.2022 to 21.07.2022;
g) That this Hon'ble Tribunal may be pleased to direct the Respondents to promote the Applicant on the basis of his Original Seniority and on the 4 OA No.333/2024 basis of the result under Sealed Cover with all consequential benefits;
h) For such further and other reliefs as this Hon'ble Tribunal may deem fit in the nature and circumstances of the matter in the interest of justice;
i) Cost of this Application."
2. Brief facts as culled out from the O.A. are that the applicant is working as Dy. General Manager (Finance) (hereinafter DGM (F) Internal Audit Grade-7 at Production Site at Taloja of Hindustan Copper Limited, Kolkata with a basic pay of Rs.1,34,440. He was initially appointed in the Hindustan Copper Ltd. (HCL) in the year 2014. While working as DGM (F) AT Corporate Office, Kolkata, a proposal dated 07/09.11.2016 was initiated for installation and commissioning, on EPC basis, of a Copper Ore Tail (COT) Beneficiation / Processing Plant of capacity 10,000 MT per day (3.29 Million Tonnes Per Annum) at Malanjkhand Copper Project (MCP), located at District - Balaghat (Madhya Pradesh), a Unit of Hindustan Copper Limited. The applicant is alleged to have approved the recommendation of Shri Dipta Maitra [the then AGM (Finance) and presently DGM (Finance)] for concurrence to float an open tender for the above stated job at an estimated value of Rs.200 crore without routing the proposal through the then Director (Finance) for according the financial concurrence of the proposal, since as per standard practice prevalent in HCL at that time, the financial power of DGM (Finance) providing concurrence for proposals was up to Rs.15 crores only, beyond which the proposal required approval of Director (Finance). He came to be promoted as General Manager (Finance) in July, 2017. He was issued a show cause letter seeking 5 OA No.333/2024 his clarification as to why he concurred with the proposal for issuance of Tender for the work towards installation and commissioning of COT Processing Plant at site MCP. He replied that the proposal was examined and submitted / returned viz. for obtaining the clarifications, for obtaining the compliance of appraisal of the proposal; for obtaining the recommendation of the concerned Directorate - Director (Operations). As it was a mere routine return of the proposal to the concerned authorities seeking clarifications, compliances and recommendations, there was 'Nil' accordance of financial concurrence.
2.1. It is the contention of the applicant that he had no authority to give any concurrence to the proposal as the proposals pre-approved value by the Board of Directors was Rs.285 crores which was beyond the delegated authority of Rs.15 crores of the applicant.
2.2. The applicant was issued a charge-memorandum dated 09.10.2020 for violating the Conduct Rules by concurring the proposal. The applicant vide his reply dated 22.10.2020 stated that the ineligible persons were appointed as Inquiry Officer, Management Witness and Presenting Officer and the inquiry proceedings were vitiated. He submits that the Tender was cancelled and, therefore, that tender proposal had zero monetary implication.
2.3. It is the contention of the applicant that the Inquiry Officer unfairly conducted the inquiry acting completely on behalf of the Disciplinary Authority. Moreso, he was financially obliged to the Disciplinary Authority as he was picked up by the Disciplinary Authority and his tenure depended on the liking of the Disciplinary 6 OA No.333/2024 Authority. The applicant contends that the Inquiry Officer held the applicant guilty of the charges by blatantly ignoring the facts of the case and in gross violation of the rules of disciplinary proceedings. 2.4. The applicant made representation dated 30.12.2021 challenging the Inquiry Officer's report by highlighting the defects and violations in the conduct and finding of the inquiry. However, inspite of the objections raised by the applicant, the Disciplinary Authority passed the impugned punishment order dated 25.01.2022 with major penalty of Compulsory Retirement in pre-determined manner without considering the documents and contentions of the applicant. It is averred that the impugned punishment order of Compulsory Retirement is not the punishment provided under the Hindustan Copper Limited (Conduct, Discipline & Appeal) Rules, 1979 under which the inquiry proceedings was conducted. 2.5. The applicant challenged the impugned order of Compulsory Retirement by way of Writ Petition before the High Court of Calcutta. The Hon'ble High Court disposed of the petition with liberty to file fresh application before the appropriate Tribunal having jurisdiction. The applicant filed the appeal before the Appellate Authority which was rejected vide order dated 23.05.2022 (Annexure-A-3). Thereafter, the applicant made detailed representation to the Reviewing Authority (which consists of 7 Members). The Review Committee rejected the findings of the Disciplinary Authority and Appellate Authority and absolved the applicant of the allegations, but held him guilty for not recording disagreement of which there was no charge against the applicant. The Reviewing Authority imposed the major penalty of reduction of 7 OA No.333/2024 post and grade which is self-contradictory to its own findings and against the rule of law.
2.6. The applicant has further contended that his scale of pay was also reduced from the grade E-8 which is of General Manager to that of Grade E-7 in the post of Dy. General Manager and placed in the pay scale of Rs.1,00,000-310-2,60,000/- which was not even mentioned in the punishment order passed by the Reviewing Authority in impugned order dated 30.06.2022.
2.7. Thereafter, the applicant made representations dated 20.12.2022, 01.03.2023, 11.04.2023 and 04.05.2023, but inspite of his representation, the Reviewing Authority consisting of 4 Directors of the Board Members issued impugned order dated 29.03.2023 (Annexure-A-5) which according to applicant is untenable and illegal as it is based on false statement and assumptions. It is further contended that the impugned order (Annexure-A-5) has fixed his basic pay at Rs.1,30,520/- with effect from 22.07.2022 on the alleged ground that the applicant was junior most Deputy General Manager in E-7 grade. Therefore, the applicant filed representation at the Grievance Redressal Mechanism of Government of India, namely Centralized Public Grievance Redress and Monitoring System (CPGRAMS) with his representations dated 29.05.2023, 19.07.2023 and 27.07.2023. However, the Respondent No.1 issued a non-speaking and arbitrary communication dated 04.08.2023 (Annexure-A-6) without any application of mind. 2.8. Thereafter, the applicant filed 7 appeal and representations between 09.08.2023 to 22.11.2023. However, the Respondent No.1 and its instrumentalities vide order dated 8 OA No.333/2024 23.11.2023 (Annexure-A-7) did not address any of his grievances raised in his representations and protests.
2.9. Aggrieved by the non-redressal of his grievances, the applicant approached this Tribunal by filing O.A.No.301/2024 which came up for hearing on 20.03.2024. After hearing the parties, the Tribunal was of the view that the applicant should file separate OAs as the charge-sheets impugned in the O.A. constitute different causes of actions. The applicant had, therefore, withdrawn the OA to file separate 2 OAs. Pursuant to the same, the applicant has filed O.A.332/2024 and O.A.333/2024. O.A.333/2024 is being decided in this order.
3. After issue of notice, the respondents have filed their affidavit in reply and contested the O.A. It has been submitted that the applicant has made multiple reliefs which is clearly in violation of Rule 10 of the C.A.T. (Procedure) Rules, 1987. On this ground alone, OA is liable to be dismissed.
3.1. It has been submitted that it is clear from the relief sought in Para 8(a) of the O.A., that the applicant mainly challenging the orders of Disciplinary Authority, Appellate Authority and Reviewing Authority arising out of the charge-sheet dated 09.10.2020 and the remaining most of the reliefs are falling under multiple reliefs and in fact some are also common in his other O.A.332/2024 which is pending before this Tribunal.
3.2. It has been submitted that the applicant has impleaded Mr.Ghanshyam Sharma, Director (Finance) and CMD and also Ms.Chitra Subramaniam, Manager (Human Resource) by name in their personal capacity with a view to pressurize them to exonerate the applicant from his misdeeds and, therefore, also the O.A. is liable 9 OA No.333/2024 to be dismissed. The entire action in the charge-sheet under question had been dealt strictly in accordance with law and the Hindustan Copper Limited (Conduct, Discipline and Appeal) Rules, 2021 as amended from time to time. The authorities discharging their function under those rules are carrying out their lawful duties as per those Rules. Therefore, there was no occasion for the applicant to implead those officers in their personal capacity and, therefore, the present O.A. is liable to be dismissed in limine on this ground itself.
3.3. The respondents have placed reliance on the judgment of Hon'ble Supreme Court in the case of Anant R. Kulkarni Vs. Y.P. Education Society and Ors. reported in (2013) 6 SCC 515, in which it has been held that Court/Tribunal should not generally set aside departmental enquiry and quash charges on the ground of delay in initiation of disciplinary proceedings, as such power is dehors limits of judicial review, Court must take into consideration all relevant facts and balance and weigh the same, so as to determine, if it is in fact in interest of clean and honest administration that the said proceedings are allowed to be terminated, only on the ground of delay in their conclusion.
3.4. It has been submitted that the principles of natural justice have been followed during the course of the inquiry. The applicant wants entire evidence to be appreciated which is impermissible in judicial review. At every stage, the applicant was given reasonable opportunity to defend his case and personal hearings were also granted. There is neither procedural flaw nor violation of the statutory rules. The applicant was afforded sufficient opportunity to defend his case. The punishment imposed on the applicant does 10 OA No.333/2024 commensurate with the gravity of the misconduct proved and hence the OA is devoid of merit and, therefore, liable to be dismissed with cost. In support of this contention, they have relied upon the following judgments:
(i) State of Tamil Nadu Vs. S. Subramaniam, AIR 1996 SC 1232
(ii) Government of Tamil Nadu Vs. K.N. Ramanurthy, 1998 (1) SLJ (SC) 63;
(iii) Commissioner and Secretary to the Govt. Vs. S. Shanmugam, JT 1998 (4) SC 2366;
(iv) Union of India Vs. B.K. Srivastava, 1998 (1) SCSLJ 74;
(v) Union of India Vs. A. Nagamalleshwari, 1998 (1) SCSLJ 78;
(vi) Apparel Export Promotion Council Vs. A.K. Chopra, JT 1998 SC 61;
(vii) Deputy Commissioner, KVS Vs. J. Hussain, AIR 2014 SC 766 = (2013) 10 SCC 106.
(A) Punishment - competent authority - DE-DA and not court-
Principles of proportionately and reasonableness-when permit judicial service-Respondent employee entering school premises during working hours in inebriated condition and forcibly barging into Principal's room-High Court substituting lesser punishment instead of punishment of removal imposed by DA-Propriety-Held, once charges are proved, discretion lies with DA to decide kind of punishment to be imposed-Factors that should be considered while imposing punishment reiterated.
(B) Quantum of Punishment-Appellate Authority vis-à-vis Judicial- Held-Appellate Authority- can while re-examining case reduce penalty imposed by DA where it finds that case warrant lesser 11 OA No.333/2024 punishment. However, such power is ordinarily not available to courts and Tribunal.
Limited scope of judicial review is permissible and interference is permissible only when punishment is shockingly disproportionate, outrageous, in defiance of logic or irrational suggesting lack of good faith offending - Article 14 of Constitution of India. Merely because in opinion of court lesser punishment would have been more appropriate, cannot be a ground to interfere with discretion of deptt. Authorities.
(c) Judicial review-sympathy-held, courts should not be guided by misplaced sympathy or continuity ground as a factor in judicial review while examining quantum of punishment-In all cases dealing with penalty of removal, dismissal or compulsorily retirement, hardship would result which cannot be a ground to interdict with penalty.
3.5. The respondents have placed reliance upon the following other judgements in support of their case:
(i) Panchmahal Vadodara Gramin Bank and others Vs. D.M. Parmar, (2011) 15 SCC 310. None supply-effect-if any-Held non supply of those documents did not result in violation of principles of natural justice.
Held, as long as there is sufficient evidence and material in support of said findings, High Court cannot interfere therewith in exercise of powers of judicial review under Art. 226-Courts below erred in interfering with the findings of fact arrived at by the enquiry officer that majority of charges against respondent were proved.
12 OA No.333/2024(ii) Lucknow Kshetriya Gramin Bank Vs. Rajendra Singh, (2013) 12 SCC 372: Held quantum-Exclusive jurisdiction of disciplinary/appellate authority to determine.
(iii) Stanzen Toyotetsu India Pvt. Ltd Vs. Girish V. & Ors, (2014) 1 SCC (L&S) 641 - No legal bar to conduct disciplinary proceedings and criminal proceedings simultaneously.
(iv) State of West Bengal Vs. Sankar Ghosh, (2014) 1 SLJ (SC) 273 - SC finds standard of evidence in criminal and departmental case are different, so reinstatement is not automatic.
(v) Oriental Bank of Commerce Vs. R K Uppal, (2011) 8 SCC 695 - Held in absence of rules no hearing may be given in appeal which upholding penalty order- Personal hearing is not implicit in a rule-Right to appeal is not an inherent right-Natural justice does not provide personal hearing in appeals.
(vi) UOI & Ors. Vs P. Gunasekaran, (2015) 2 SCC 610 - Held despite the well settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disc. Proceedings, re-appreciating even the evidence before the Inquiry Officer. The finding on charge NO.I was accepted by the Disc. Authority and was also endorsed by the CAT. In Disc. Proceedings the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India shall not venture into re-appreciation of the evidence.
(vii). Deputy General Manager (Appellate Authority) and others Vs. Ajai Kumar Srivastava, (2021) 2 SCC 612 - Held in exercise of jurisdiction of judicial review, courts would not interfere with the findings of facts arrived at in disciplinary proceedings except 13 OA No.333/2024 in case of malafides or perversity i.e. where there is no evidence to support finding or finding is such that no reasonable man could arrive at-Where there is some evidence to support finding arrived at in departmental proceedings, same must be sustained, as in present case- Hence, findings of disciplinary authorities restored. 3.6. It has been submitted that the last order dated 30.06.2022 is passed by the Reviewing Authority and, therefore, the O.A. filed on 21.03.2024 is not filed within limitation prescribed in Section 21 of the Administrative Tribunal Act, 1985. The applicant has not filed any application for condonation of delay and, therefore, the O.A. is even otherwise liable to be dismissed. In support of this contention the respondents have place reliance upon the following judgements:
(i) P.S. Sadasivaswamy Vs. S/o Tamil Nadu, AIR 1974 SC 2271;
(ii) Jacob Abraham and others, A.T. Full Bench Judgements, 1994-96;
(iii) Ram Chandra Samanta Vs. UOI, 1994 (26) ATC 228;
(iv) S.S. Rathore Vs. S/o M.P., 1989 (2) ATC 521; (v) Bhoop Singh Vs. UOI IR 1992 SC 1414; (vi) Secretary to Govt. of India Vs. Shivaram M. Gaikwad (1995) 30 ATC 635 = 1995 (6) SLR (SC) 812;
(vii) Ex. Capt. Harish Uppal Vs. UOI, 1994 (2) SLJ 177;
(viii) L. Chandra Kumar Vs. UOI, 1997(2) SLR (SC) 1;
(ix) Dattaram Vs. Union of India, AIR 199 SC 564;
(x) UOI V/s. Bhagnoar Singh, 1996 LLJ 1127 (SC);
(xi) Ramesh Chand Shrma Vs. Udham Singh Kamal & Ors, (1998)
8 SCC 304,;
14 OA No.333/2024
(xii) E. Parmasivan & Ors Vs. UOI & Ors., 2002 (5) SLR (SC) 307
- AT Act, 1985-Article 226-Writ Petition-Delay and latches-
Maintainability of writ petition-Limitation-Application before Tribunal in 1995, by retired MES officers Retirement between 31.01.1974 to 31.05.1985, for fixation of pay in term of OM dated 12.1.1976. Tribunal right in dismissing applications on grounds of limitation. 3.7. It is submitted that the Hon'ble Supreme Court has categorically ruled that stale claim cannot be gone into by this Tribunal. This settled position is already accepted by this Tribunal in its judgement and order dated 12.12.2006 in O.A.No.92/2006 Kaushal Kishore Vs. Union of India & Others. Moreover, Full Bench of this Tribunal has also ruled that preliminary objection with regard to jurisdiction and limitation has to be decided first. The respondents also rely upon the judgement of the Hon'ble Supreme Court in the case of Arun Agarwal Vs. Nagreeka Exports, reported in (2002) 10 SCC 101.
3.8. The respondents have placed reliance upon the judgement in the case of UOI Vs. M.K. Sarkar, reported in (2010) 1 SCC (L&S) 1126. Reckoning of date of accrual of cause of action- Tribunal allowing respondents application without examining merits directing Railway Administration to consider stale claim- Unnecessary litigation and avoidable complication arising out of- Propriety and warratedness of.- Issue of limitation or delay and latches has to be considered with reference to original cause of action and not with reference to date on which an order is passed in compliance with a courts directions.
15 OA No.333/20243.9. The respondents have placed reliance on following other judgements of the Hon'ble Supreme Court on the point of delay and latches:
(i) Esha Battcharjee Vs. Management Committee of Raghnathpur Nafar Academy, 2014 (1) SLJ (SC) 20;
(ii) State of Uttarakhand Vs. Sri Shiv Charan Singh Bhandari, 2014(2) SLR 688 (SC).
(iii) Union of India Vs. L. Chandrakumar, the Constitution Bench has held that the period of limitation prescribed in Section 21 is strict one.
(iv) Ravinder Kumar Vs. UOI & Ors. reported in 2018 (1) SLJ (SC) 150 - Held, inordinate delay of more than 5 years in filing of application may not be condoned.
(v) D C S Negi Vs. UOI, reported in (2018) 16 SCC 721- It was held that it is duty of Tribunal to first consider issue of limitation and only thereafter admit same, if found to have been made within period of limitation or sufficient cause is shown for not doing so.
4. The applicant has filed rejoinder to the reply of the respondents contending that it is devoid of any merits with material error manifest on the face of it, and therefore, liable to be dismissed, that Smt.Swadhina Patnaik, is not competent to file reply as she is not conversant with the facts, that it is a stale charge-sheet as it has been referring to the issues of 4 years old and, therefore, the charge- sheet is hit by undue delay.
4.1. It has been submitted that the Reviewing Authority after holding that the applicant has not committed the alleged misconduct sought to create a new ground against the applicant by saying that he has neither concurred with the proposal, nor by passed the 16 OA No.333/2024 Director (Finance), he should have recorded the same and the failure to do so amounts to misconduct. This new allegation is not even part of the charge-sheet.
4.2. It has been submitted that Mr.Ghanshyam Sharma, Director (Finance) & CMD and Ms.Chitra Subramaniam, Manager (HR) are named in the application in their official capacity and that they are part of the conspiracy against the applicant. The applicant contended that the charge-sheet was not dealt with under HCL (CDA) Rules, 1979, the applicant is not seeking re-assessment of any evidence on record as the entire evidence is in his favour that the purported disciplinary proceedings was initiated to look into the charges of alleged misconduct on the part of the applicant bypassing the Director (Finance) in the Press Tendering process of the Open Tender Enquiry (OTE). The purported disciplinary proceeding is not related to Single Tender Enquiry (STE), as falsely stated in the affidavit that the allegation that he concurred with the proposal and was passed by Director (Finance) is false and baseless that reference to the 367th Meeting is malafide attempt to mislead the Tribunal that it is completely irrelevant and unrelated. 4.3. It has been submitted that the proposal was submitted / returned thrice for obtaining clarifications for obtaining compliance of appraisal, for obtaining recommendation of the concerned Directorate, viz. Director (Operations), that it was a mere routine return of the proposal to the concerned authorities for seeking clarifications, compliances and recommendations and that there was no consideration for accordance of concurrence. It has been submitted that the proposal was received from the office of Director (Finance) and that the applicant had not signed on behalf of the 17 OA No.333/2024 Director (Finance). It has been submitted that the Director (Operations) has specifically stated about the requirement of an investment of Rs.285 crores and that the proposal had the approval of Director (Finance) and CMD.
4.4. It has been submitted that the punishment of compulsory retirement was inflicted on the applicant which was not provided under the HCL (CDA) Rules, 1979, that provisions for Review as provided in the HCL CDA Rules were grossly violated by holding a suo-moto Review Authority's arbitrary hearing on 29.03.2023 in a clandestine manner on the basis of an illegal Agenda full of false statements. The appointment of Inquiry Officer and the Presenting Officer was not done in accordance with HCL CDA Rules, that the Presenting Officer was a "Dealing Officer" of the Tender Department and as such he also was interested person.
5. The respondents have filed reply to rejoinder submitted by the applicant and denied the averments made in the rejoinder which are not specifically admitted.
5.1. The Corporate Office of the respondents is at Kolkata, thus the Competent Authority authorised Smt.Swadhina Patnaik, Assistant General Manager (Human Resources), Hindustan Copper Limited, Taloja, Raigad to sign the documents in the case, as the same are duly vetted and approved by the Competent Authority in advance and thus there is no legal bar for it. Therefore, the contention of the applicant that she is not authorised to sign the affidavit in reply is not correct. The charge-sheet was issued to the applicant on 09.10.2020 on the basis of first stage advice of CVC for the alleged act of omission and commission by considering all the facts and circumstances prevailing at that point of time vis-à-vis in 18 OA No.333/2024 adherence to the principle of natural justice which is primary requirement of any disciplinary proceedings.
5.2. Regarding delay in issuance of the charge-sheet, it is submitted that the applicant was said to have concurred with the proposal on 15.11.2016 whereas the charge sheet was issued on 09.10.2020 after a time elapse of almost four years. The same cannot be considered to be issued with an inordinate delay as the project was under commissioning stage from March 2017 onwards till the later half of 2020 and in vogue during the aforesaid period. It was only in August 2020 the contract was eventually terminated due to efflux of time and also as envisaged by the then management that assigned contractor was unable to successfully complete the project after repeated grant of extension of time. Hence, the judgment of Hon'ble Supreme Court as referred by the applicant cannot be attributed upon the said case as the applicant was served with the charge sheet immediately after the receipt of the First stage advice from CVC and after immediate termination of the said contract. Moreover, the HCL (CDA) Rules, 2021, as amended from time to time does not refrain from issuance of charge sheet for any act of commission and omission by the employee during his entire period of service unless he/she is being separated from the organization. The Disciplinary Authority vide his speaking order dated 25.01.2022 has succinctly specified at para 17.0 that "... ... ... after perusal of the entire case, presented in terms of charge Memorandum No.HCL:CVO:1271.(MCP-COT)-VT dated 09.10.2020 against the charged officer, the written statement of defence dated 22.10.2020, the report of the Inquiry Officer dated 10.12.2021, the representation of the applicant dated 30.12.2021 on the report of IO, analysis of the 19 OA No.333/2024 vigilance department dated 17.01.2022 and other file notings, it reveals gross misconduct on the part of the charged officer. In particular, the act of concurring a proposal beyond his delegated financial powers, by-passing the authority of Direct (Finance) is a grave misconduct ... .....". Thus, it can be construed that the Disciplinary Authority has unequivocally appreciated and analyzed the facts of the case and held the applicant guilty for the alleged act of the applicant in by-passing the authority of Director (Finance) while concurring the proposal beyond his delegated financial powers and subsequently after assessing the gravity of the misconduct and the evidence on record, the Disciplinary Authority has inflicted the penalty of "Compulsory Retirement" to the applicant. 5.3. It has been further submitted that it has been specifically deliberated in the said inquiry report that the applicant had ample opportunity to defy/refute the interpretation of the then ED (M&C) - as concurred. It can be construed from the said report that the applicant preferred to be the silent spectator during the entire course of concurrence and tried to absolve himself from his assigned role and responsibilities and thereby in connivance with other senior officials involved in the conspiracy of so called "façade of financial concurrence" wherein the authority of the then Director (Finance) was by-passed. It is also to be borne in mind that Review Authority vide its speaking order dated 30.06.2022 had cogently specified that the "... ... The Authority agrees with the findings of the Disciplinary Authority that indicate that the Charged Officer, Shri Vivek Tripathi, Code No: 14034 Ex-General Manager (Internal Audit) has committed misconduct. However, the Review Authority found that though the Charged Officer can't said strictly to have concurred the 20 OA No.333/2024 file or bypassed the Director (Finance), but certainly he had failed to record his disagreement with the junior officer and failed to disagree with the assumption of concurrence clearly mentioned in the file even though he had opportunity to do so ... ... ..." The above stance implies that Review Authority has adopted an unified approach considering all the facts and circumstances and thereby held the applicant responsible for the misconduct and accordingly the revised penalty of "reduction in grade" was inflicted upon the applicant. It is only the self-made proposition of the applicant that he was imposed with a penalty although being declared innocent by the Review Authority in the instant case. However, the speaking order of Review Authority distinctly specifies about the involvement and assigned role and responsibility of the applicant in the entire process of according the financial concurrence in the said proposal.
6. During arguments, the learned counsel Shri K.P. Anil Kumar holding for Mr. Priyanka Kumar submitted that the file received by the applicant was returned to the Department on 15.11.2016 to the Executive Director who has the same rank of DGM, the file which came from AGM. The applicant did not return it to the AGM and marked it to the Executive Director. He submitted that the applicant has never concurred with the proposal and simply returned it, it cannot be said that he had concurred it. He submitted that the Disciplinary Authority in the impugned order dated 25.01.2022 has recorded the finding that "the act of concurring a proposal beyond his delegated financial powers, by-passing the authority of Director (Finance) in the process is a grave misconduct." He argued that this conclusion arrived by the Disciplinary Authority 21 OA No.333/2024 is not correct as the applicant had never concurred with the proposal.
6.1. Mr. Kumar further submits that a speaking order passed by the Appellate Authority (Annex-A-3) is not tenable in the eyes of law as the Appellate Authority has recorded that all the charges levelled against the Charged Officer has been proved and the Appellate Authority does not find any ground to interfere with the findings of the Inquiry Officer which was accepted by the Disciplinary Authority by passing a reasoned order. He submitted that this conclusion of the Appellate Authority that all the charges levelled against the charged officer were proved is not correct as the Inquiry Officer in his report has held that charge no.3 and 4 are infructuous. He further submitted that the order of Reviewing Authority dated 30.06.2022 (Annex-A-4) is also not legally tenable as the Reviewing Authority has itself recorded in Para 2 of the Speaking Order that ".... though the charged officer cannot be said strictly to have concurred the file or bypassed the then Director (Finance), but he certainly failed to record his disagreement with his junior officer and also failed to disagree with the assumption of concurrence clearly mentioned on the file even though he had an opportunity to do so. The Reviewing Authority after considering the punishment meted out to the officer responsible for scrutiny of the file at first stage in finance department, who had put the file to the charged officer, found that the major penalty of "Compulsory Retirement" imposed on the charged officer is not warranted". Once the Review Authority arrived at the conclusion that the charged officer cannot be strictly said to have concurred the file or by-passed the Director, it could not have imposed the major penalty of "Reduction to a lower post and grade"
22 OA No.333/2024from the post of General Manager in E8 grade to the post of Dy. General Manager in E7 Grade" and put him in the lower pay scale of Rs.100000-3%-260000/-. He further submitted that another Review Authority vide impugned order dated 29.03.2023 (Annex-A-
5) could not have fixed the pay of the applicant at Rs.1,30,520/-
which is the junior most pay in the scale of the post of Dy. General Manager in E7 Grade when Reviewing Authority has recorded the finding that the applicant cannot be said strictly to have concurred the file or by-passed the Director (Finance).
6.2. The learned counsel for the applicant has placed reliance on the following judgments:
(i) A.L. Kalra vs.The Project and Equipment
Corporation of India Ltd., AIR 1984 SC 1361;
(ii) Kuldeep Singh vs. Commissioner of Police and
others, (1999) 2 SCC 10;
(iii) Anil Amrut Atre vs. District and Sessions Judge,
Aurangabad & Anr., 2002 III CLR 341;
(iv) Dayanand Shankarrao Lokhande and others vs.
Union of India and others, 2002 (3) L.L.N. 979 (Bombay High Court.
7. Dr.V.S. Masurkar, learned counsel for the respondents on the other hand has vehemently argued that the applicant has dealt with file for which he was not competent and in the absence of Director (Finance) he could not have signed the file. He submitted that the file came to the applicant 5 times and every time he just signed the file which shows that he had concurred with the note put up by the authorities down below. He submitted that the file came to the applicant on 14.11.2016 when he has signed it. Thereafter, 23 OA No.333/2024 on a single day on 15.11.2016, the file came to him 4 times and all the 4 times he signed the file and mentioned against the designation of Director (Finance) by marking "on leave". He submitted that the perusal of the note sheet makes it clear that when his junior AGM (Finance) had put up a note stating that "we may agree for administrative approval to close open tender" he has signed it. When the file was again put up to him after noting that "as concurred, we may agree for administrative approval for installation of COT processing plant at NCT estimated value Rs.200/- crores". Thus, the applicant was fully aware that he was competent to deal with the projects only upto Rs.15 crores which was financial powers delegated to him. Inspite of knowing that the cost of the project was Rs.200/- crores, which was not in his competence, he still chose to sign the file by marking "Director on leave" and submitted the file for recommendation of the concerned Directorate. Thus, it shows that the applicant knowingly has signed the file on the 5 occasions and he has not rejected it and given any negative finding that he does not concur. He submits that it is a common practice in all the Departments that when a file comes to any Sr. Officer with some noting of recommendations and he simply signs it, which means that he agrees with it. Dr.Masurkar, therefore, vehemently argued that the penalty imposed upon the applicant is fully justified and should not be interfered with by this Tribunal. Dr.Masurkar has placed reliance on the various judgments which have been referred in his reply to emphasise that the Tribunal cannot re-appreciate the evidence. He submits that the Tribunal can only see if the proper procedure was followed by the Disciplinary Authority and cannot substitute its own conclusions unless all the conclusions drawn by 24 OA No.333/2024 the Departmental Authorities. He submits that the applicant has not challenged the charge-sheet and Inquiry report and not prayed for quashing and setting aside the charge-memorandum and Inquiry Officer's Inquiry report in the relief clause of the O.A.
8. We have heard learned counsel for both the sides at length and perused the pleadings and documents on record and also gone through the various judgments relied upon by both the sides.
9. To recapitulate the facts in brief are that the applicant while working as DGM (Finance) at HCL, Kolkata, a proposal for installation and commissioning of a Copper Ore Tail (COT) Beneficiation / Processing Plant located at District Balaghat, Madhya Pradesh came for approval. The estimated value of the same was Rs.200 crores. The applicant's financial power is of Rs.15 crores. Therefore, a charge-memorandum dated 09.10.2020 was issued to the applicant in which 4 Articles of charge were framed. In Article-I he has been charged for violation of Rule-5.1(f), 5.1(i), 5.1.(w), 5.1(x), 5.1(y) and 5.1(ad) under the HCL (CDA) Rules, 1979.
In Article-II, it has been alleged that total estimated cost of the job mentioned under the scope of work of the NIT was Rs.319 crore (Rs.200 crore for installation and commissioning of the COT Plant + 119 crore for its operation and maintenance for two years @ 59.5 crore/annum). The recommendation for financial concurrence provided by Shri Dipta Maitra, AGM (F) was later approved by Shri Vivek Tripathi, the then Dy. General Manager (Finance) and presently General Manager (Finance). Based on the same, the administrative approval for issuing the open tender was accorded by then CMD, HCL. Thus, the applicant, during his scrutiny of the proposal for providing financial concurrence, failed to take into 25 OA No.333/2024 account the discrepancy between the proposal and the draft NIT and bring the same to the notice of his superior authorities, thereby allowing the issuance of a NIT for an estimated value of Rs.319 crore, against a proposal for Rs.200 crore only, and therefore, he has been alleged to have committed the misconduct under Rule 5.1(i) and Rule 5.1(z) of the HCL (CDA) Rules, 1979.
In Article-III of the charge-memorandum, it has been alleged that by according concurrence to the proposal and approval for floating of a tender which was beyond the approval of HCL Board, Shri Vivek Tripathi has violated Rule 5.1 (e), Rule 5.1(i), Rule 5.1(w), and Rule 5.1 (z) of the HCL (CDA) Rules, 1979.
In Article-IV, it has been alleged that Shri Vivek Tripathi had bypassed the authority of then Director (Finance) by concurring the proposal under his signature, although the same was beyond his delegated powers and thereafter the authority of Director (Finance) was also bypassed as the requisite documents sought by him for recording his observations on the said proposal were not made available to Director (Finance). Therefore, he is alleged to have violated Rule 5.1 (t) and Rule 5.1 (u) of the HCL (CDA) Rules, 1979.
10. The applicant did not challenge the above charge- memorandum dated 09.10.2020. Thereafter, the Inquiry Officer was appointed. The applicant participated in the inquiry proceedings. The Inquiry Officer in his report made detailed analysis and held that Shri Vivek Tripathi at various places has cited the rules, procedure of concurrence, limitation of delegated powers and based on that had wondered how he can accord financial concurrence to such a proposal which is of Rs.200 crore value whereas his power of concurrence is at Rs.15 crore. He has mentioned that as this falls 26 OA No.333/2024 under the power of Director (Finance), he cannot accord sanction to such proposal. The above only proves that he is well aware of his limited delegation of power of Rs. 15 crore, the project value of Rs.200 crore and the process of awarding financial concurrence. This is expected from such senior level of Finance Executive. However, these arguments do not tell anything beyond his awareness of the rules and procedure. Here the issue under consideration is just that in spite of the specific rules, DGM (F) has concurred the proposal of Rs.200 crore. So citing the rule book does not add any weight.
The Inquiry Officer in Para 5.6.2 © of his report has observed that the Charged Officer's assettion that it was an incomplete proposal, hence it was sent back to ED (M&C) vide his note dated 15.11.2016. The Charged Officer has simply put his signature on the recommendation of the AGM (F). In other words, he is in agreement with the noting. If the CO really thought that the 2nd part of the recommendation was contradictory - he could have done two things -
a) CO could have advised the AGM (F) to put clear and unambiguous recommendation i.e. tender floating approval is conditional on vetting of F.R. and Tender Document by M/s SBI Capital.
b) Or the CO could have made those things clear in his noting to ED (M&C), that approval will be effective only when both the jobs i.e. vetting of FR and Tender Document are complete.
The CO did neither and simply signed which denotes his acceptance of AGM (F)'s noting. The argument of the CO that the so called recommendation is conditional is not acceptable as such 27 OA No.333/2024 an important issue cannot be understood/imagined, more so in the present environment.
11. The Inquiry Officer has summarized the findings at Para 5.6.8 of the report. In Para 5.6.9.2, he has held that the part played by the Charged Officer has been pointed out and he has to take the blame for that. To that extent the charges brought under Article of Charge I is proved against the backdrop of the situation explained in Para 5.5 and 5.6 itself.
12. In Para 5.5.9 of the report the Inquiry Officer has held that "with a detailed probe, one finds that the NIT attached with the proposal carried additional scope of two years operation and maintenance. With this additional scope, the NIT released had a value of Rs.319 crore while the approval was for Rs.200 crore. Hence the charges brought, that-
"Thus, the tender documents entailed an estimated cost of Rs.319 crores for installation of a COT Plant and its operation and maintenance for two years whereas it is evident that the proposal itself was only for setting up a commercial COT Processing Plant, i.e. installation and commissioning and it was mentioned in the said proposal that the same was for Rs.200 crore. The proposal does not speak about operation and maintenance of the COT Plant. It is thus evident that there was no parity between the proposal and the tender documents accompanying the proposal. The tender that was finally floated was in accordance to the draft NIT submitted with the proposal as regard the "Scope of Work" and thereby as related to the estimated cost. Hence, the same was also not commensurate with the proposal, and "Thus, Shri Vivek Tripathi, then DGM (Finance) and presently GM (Internal Audit), HCL / Corporate Office, during his scrutiny of the proposal for providing financial 28 OA No.333/2024 concurrence, failed to take into account the discrepancy between the proposal and the draft NIT and bring the same to the notice of his superior authorities, thereby allowing the issuance of a NIT for an estimated value of Rs.319 crore, against a proposal for Rs.200 crore only."
[Ref: Para-2.10 & 2.11 OF Statement of Imputation of Misconduct] are proved."
13. Regarding Article-III of the charge-memorandum, the Inquiry Officer held that it is infructuous which is fall out of Article-II. Regarding Article-IV, the Inquiry Officer has given finding in Para 5.5.7 of the Inquiry report that it is fall out of Charge-I which has been held as proved. Article-IV becomes infructuous. Thus, the Inquiry Officer in his report dated 10.12.2021 has held that charges in Article-I & II as proved and Article-III & IV of the charge- memorandum as infructuous.
13.1. The applicant has challenged the inquiry report in this O.A. 13.2. A copy of the above said inquiry report was made available to the applicant by the Disciplinary Authority vide letter no.HCL/CMD/CVO(1271)-VT dated 16.12.2021 seeking his representation. The applicant submitted his response on the same vide his letter dated 30.12.2021 which was received by the office of CMD/HCL on 14.01.2022, in which he denied that he has concurred the proposal for floating open the tender.
13.3. The Disciplinary Authority i.e. CMD, HCL after considering the inquiry report and submission of the applicant on the inquiry report came to the conclusion that there was gross misconduct on the part of the applicant, in particular, the act of concurring beyond his delegated financial powers by-passing the 29 OA No.333/2024 authority of Director (Finance) in the process is grave misconduct and, therefore, he imposed the major penalty of Compulsory Retirement under Rule-23.1(g) of HCL (CDA) Rules, 2021. Rule 32.2 of the HCL (CDA) Rules, 2021 provides provision for appeal before the Committee of Functional Directors without the Disciplinary Authority.
13.4. The applicant filed appeal before the Appellate Authority consisting of Committee of Functional Director without the Disciplinary Authority vide appeal dated 23.02.2022 and 24.02.2022. The Appellate Authority vide speaking order dated 23.05.2022 has held that "the committee has also noted that if the intention of the officer was to get concurrence of Director (Finance) the proposal was required to be marked directly to Director (Finance) after examination which in this was not done. It is also held that Disciplinary Authority is justified as the charges levelled against the applicant is of very serious in nature and, therefore, the order passed by the Disciplinary Authority in inflicting punishment in nature of compulsory retirement is proper and justified. The Appellate Authority further held that the finding of the Inquiry Officer is based on the evidence on record and the Charged Officer was given all reasonable opportunity to cross examine the prosecution witnesses and also to prosecute the defence witnesses. Since, it is found that the Inquiry Officer gave all opportunities to the Charged employee to defend his case in accordance with rule of natural justice, the charged employee fully cross examined the prosecution witness but could not find out any material contrary to the evidence on record. Since, the Inquiry Officer substantiated his findings considering the deposition of prosecution witness so also the answers in the cross 30 OA No.333/2024 examination but nothing came out which could be treated as innocence of the charged employee. Since the finding of the Inquiry Officer is based on evidence on record and no extraneous material was taken into consideration to declare the charge as proved. As such we find that the findings of the Inquiry Officer is justified. The Appellate Authority consisted of 3 Functional Directors."
14. Thereafter, the applicant filed a Review Application dated 28.05.2022 before the Reviewing Authority i.e. the Board of Directors without the Disciplinary Authority and without the Appellate Authority cum Revisional Authority, comprising of 4 Independent Directors, and Economic Advisor of Ministry of Mines, Government of India, and Director in the Ministry of Mines, Government of India vide Speaking Order dated 30.06.2022 which was signed on 19.07.2022 has held that the major penalty imposed on the applicant was not warranted and decided to reduce it by imposing the major penalty of "Reduction to Lower Post and Grade" in terms of Rule- 23.1(f) of HCL (CDA) Rules, 2021 from E-8 Grade of General Manager to Grade E-7 of Dy. General Manager and placed in the pay scale of Rs.100000-3%-260000 and also held that the intervening period i.e. from the date of compulsory retirement to the date of reinstatement to be considered as dies-non.
15. The applicant filed a Review Petition before the Reviewing Authority comprising of 4 Directors i.e. Shri A.J. Bhide, Independent Director, AGK Prasad, Independent Director, Hemlata Verma, Independent Director and Sanjeev Verma, Government Nominee Director. The Reviewing Authority fixed the basic pay of the applicant at Rs.1,30,520/- with effect from 22.07.2022 (i.e. the date of joining the reduced post of DGM / E-7 grade) being the junior 31 OA No.333/2024 most Dy. General Manager in E-7 grade and disposed of the Review Petition.
16. The applicant has filed representation in the Public Grievance Portal CPGRAM which was replied by the respondents vide impugned communication dated 23.11.2023 stating that this CPGRAM portal pertains to the appeal facility to the citizens and HCL has no comments to offer.
17. We find that regarding contention of the applicant that there was delay in issue of charge-memorandum as the alleged act of concurrence with the proposal was committed on 15.11.2016 and the charge-memorandum was issued on 09.10.2020 and thus, there was delay in issue of the charge-sheet. In peculiar facts of this case, the question of delay goes on the back burner. The only question involved in this OA is whether the applicant had concurred with the proposal of 200 crores. It does not involve meticulous details. Question of delay would have gained importance if applicant had been prejudiced. Nothing has been brought on record to show as to how applicant was prejudiced because of delay. The applicant himself has not challenged the charge-memorandum in this O.A. Therefore, in absence of challenge to the charge-memorandum the ground of delay in issue of charge-memorandum is not admissible. We further find that the respondents have explained that the project was under commissioning stage from March, 2017 onwards till the later of 2020 and contract was terminated in August, 2020 and thereafter the charge-memorandum was issued to the applicant, therefore, there cannot be said to be inordinate delay in issuance of the charge-memorandum.
32 OA No.333/202418. Regarding the argument of the applicant that he never concurred with the proposal and simply signed it, on perusal of the note sheet submitted by the respondents, we find that a note seeking approval of the Competent Authority to float tender for selection of agency to process copper tails at Malanjkhand Copper project to process CoT of Rs.10,000 per day and investment proposed of Rs.200 crore was placed before the Board in its 363rd meeting held on 30.05.2016. The Board has accorded its approval for initiation of action for installation of a commercial plant for the treatment of copper ore tails of capacity 10,000 MT per day at Malanjkhand Copper Project on EPC mode through a tendering process.
19. We find that the proposal to float a press tender for setting up of commercial plant to process Copper ore tails at MCP of capacity 10,000 MT per day was put up by the DGM (Project) for commercial vetting on 09.11.2016. The proposal also says "in parallel to take up the work for financial appraisal of the Feasibility report prepared through M/s. SBI Capital and any changes suggested by the SBI Capital on the tender will be affected through a corrigendum and that the tender will be published in Business Standard Metro Edition and besides hoisting in HCL website and CPPP Portal."
19.1 The file was put up along with notes for perusal and commercial vetting to the DGM (F) on 14.11.2016. He signed it and marked it to AGM (F) who is a junior authority to the DGM (F). The AGM (F) has made noting that "It is recorded that IRR of the project had been estimated at around 125%, calculation in support of the above may be attached for further processing of the file and again put up to the DGM (F) i.e. the applicant on 15.11.2016. The 33 OA No.333/2024 applicant marked it to the DGM (Project). The DGM (Project) made a noting that the calculation is attached vide page 201 and returned the file to the DGM (F) i.e. the applicant. The applicant signed it and marked it to his junior AGM (F). The AGM (F) has made a noting that "We may agree for administrative approval to float open tender installation and commissioning of COT processing plant at MCP at an estimated value of Rs.200 crore. However, the feasibility report may be appraised by M/s. SBI Capital along with the tender documents parallely", and put up the file to DGM (F) i.e. the applicant. The applicant again signs it and marks it to the Executive Director (M&C). The ED (M&C) makes a noting that "As concurred, we may agree for administrative approval for installation of COT processing plant at MCP estimated value of Rs.200.00 Crore". The file comes back to the applicant and he without mentioning as who has concurred signs the file against the column Director (Finance) "on leave" and submits the file to concerned Directorate. The file should have gone to the Director (Operations) and then to Director (Finance) and then to CMD. However, noting was made that the Director (OP) was out, Director (Finance) was on leave and the DGM (Finance) i.e. the applicant again dealt with the file and makes noting that "submitted for the recommendation of the concerned Directorate" and again signs on 15.11.2016 and marked the file to Director (Operations). He was fully aware that the file pertains to the project of more than Rs.200 crores and only Director (Finance) was competent to deal with it and the applicant's financial power was of Rs.15 Crores only. Yet he does not wait for the Director to return and deals with the file by marking Director (Finance) on leave and sends file to Director (Operations). The Director (Operations) signs it on 34 OA No.333/2024 16.11.2016 and marked the file to Director (Finance) who was on leave and, therefore, the file was sent to CMD. The CMD made noting that "Tender may be issued and file be seen by D(F) for his comments. If any observation, it may be covered through corrigendum" and marked the file to ED (M&C). Thus, the file came to the applicant 5 times. Since he had been made the noting of ED(M&C) that "we may agree for administrative approval for installation of CoT [processing plant at estimated value of Rs.200 crore", he cannot say that just by signing and forwarding the file to Director (Operations), he has not concurred with the proposal and that he has not exceeded his financial power of Rs.15 crores. Moreover, since the charge-memorandum and the inquiry report of the Inquiry Officer which formed the basis for impugned orders are not challenged in the O.A., the subsequent orders passed by the Disciplinary Authority, Appellate Authority and the Reviewing Authority cannot be challenged.
20. It needs to be mentioned that service matters are decided on the basis of "preponderance of probabilities" unlike the criminal case in the court where the prosecution has to prove the guilt of the accused beyond reasonable doubts. In the service matters, if circumstances suggest the preponderance of probabilities which in this case clearly are established that the applicant has processed a file of Rs.200.00 Crores which was beyond his financial powers of Rs.15.00 Crores, he could not say that he did not concur with the proposal when he has signed it five times without objecting even once. He did not wait for the Director (Finance) to scrutinise the proposal. Thus, there is strong 35 OA No.333/2024 preponderance of probabilities that the applicant was fully aware of what he was doing.
21. Learned counsel for the applicant has argued that the Reviewing Authority has held that the applicant has not strictly concurred with the proposal but has failed to record his agreement note. He submits that once the Reviewing Authority came to the conclusion that the applicant has not strictly concurred with the proposal, the Reviewing Authority was not justified in awarding the penalty of reduction of one grade from the grade of E-8 to E-7 and, therefore, the order needs to be quashed and set aside. We are of the view that it is because of the above finding of the Reviewing Authority that they reduced the penalty imposed on the applicant from the "removal from service" to a lesser penalty of "reduction by one grade". The Tribunal cannot substitute the decision of the Reviewing Authority by its own decision unless the process adopted by the Reviewing Authority is illegal. The Tribunal has only to see whether there was some material before the Reviewing Authority to justify their decision. When we see the decision of the Reviewing Authority in the conspectus of facts and circumstances of the case, we are of the view that considering the preponderance of probabilities and manner in which the applicant has dealt with the file which was beyond his financial power, we do not find any illegality in the order of the Reviewing Authority.
22. The cases relied upon by the counsel for the applicant are not applicable to the facts of the applicant's case. In the case of Kuldeep Singh (Supra), the Hon'ble Apex Court has held that "If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order 36 OA No.333/2024 would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." We do not find that the impugned orders were based on no material or there was any perversity, therefore, this case is of no help to the applicant.
23. In the case of A.L. Kalra (Supra), it was held that "Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct". It was held that the order of removal passed by Disciplinary Authority is illegal and invalid for the reasons: (i) that the action is thoroughly arbitrary and is violative of Article 14, (ii) that the alleged mis-conduct does not constitute misconduct within the 1975 Rules; (iii) that the inquiry officer himself found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double jeopardy; and (iv) that the findings of the inquiry officer are unsupported by reasons and the order of the Disciplinary Authority as well as the Appellate Authority suffer from the same vice. Therefore, the order of removal from service as well as the appellate order are quashed and set aside." We find that the charges levelled against the applicant are specific and the action was not arbitrary. The applicant was given full opportunity to defend himself before the Inquiry Officer. The Inquiry report is based on duly examination of material on record and witnesses who have been duly cross examined by the applicant. Therefore, this case is also not applicable.
37 OA No.333/202424. The applicant has further placed reliance on the judgment of the Hon'ble High Court of Judicature at Bombay (Aurangabad Bench) in the case of Anil Amrut Atre (Supra), wherein it was held that "a personal hearing ought to be afforded to the delinquent in such cases and a reasoned order must be passed by the Appellate Authority". We find that the applicant was given full opportunity to defend himself before the Inquiry Officer which he availed. In the impugned orders his representation was duly considered and a reasoned speaking orders were passed and, therefore, the said case is distinguishable on facts.
25. Regarding judgment of Hon'ble High Court of Bombay in the case of Dayanand Shankarrao Lokhande and others (Supra), relied upon by the counsel for the applicant, it was held that "in so far as the finding of guilt on the question of breach of trust and dishonesty is concerned, admittedly there was no specific charge in that behalf framed against the petitioner. In absence of a specific charge in that behalf, which in our view, is a serious charge and would surely entail into major penalty, the conclusion reached by the authorities in holding the petitioner guilty of breach of trust and dishonesty is wholly inappropriate and impermissible in law." We find that this judgment is also not applicable to the facts of the applicant's case as the charges have been duly supported by the evidence on record and the Inquiry Officer has substantiated his findings in great detail.
26. On the contrary, we find that the decisions relied upon by learned counsel for the respondents that the Tribunal should not re-appreciate the evidence and come to its own conclusion is applicable. In the case of State of Tamil Nadu Vs. S. 38 OA No.333/2024 Subramaniam (Supra), it was held "It is the exclusive domain of the Disciplinary Authority to consider the evidence on record and record findings whether the charge has been proved or not. It is equally settled law that a technical rule of evidence has no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusions. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in view of the Court or Tribunal."
27. In view of the above facts and circumstances and judicial pronouncements as discussed above, we do not find any infirmity in the impugned orders. Therefore, we are of the view that the O.A. is devoid of any merit and requires to be dismissed and is accordingly dismissed. No order as to costs.
28. Pending MAs, if any, also stand disposed of.
(Shri Krishna) (Justice M.G. Sewlikar)
Member (A) Member (J).
H
Digitally signed by Milan Jackson Alphanso
DN: C=IN, O=Personal, OID.2.5.4.65=
Milan Jackson
0815a10efc18484c96f92d4cf96b158b, Phone=
30f7d919c844ed7f75e7bc56633df96108338768adae5582338f0d13 d4f0f1dc, PostalCode=401203, S=Maharashtra, SERIALNUMBER= 6b7c9269fe100118bd94c76380691e4802b189a40578bdd0fd757c8 b8babf6f4, CN=Milan Jackson Alphanso Alphanso Reason: I am the author of this document Location:
Date: 2025.02.07 10:00:42+05'30' Foxit PDF Reader Version: 12.1.2