Central Administrative Tribunal - Ernakulam
James Thomas vs M/O Commerce on 19 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00358/2017
Friday, this the 19th day of May, 2023
CO RAM :
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
James Thomas, aged 54 years,
S/o Thomas
Security Guard,
Cochin Special Economic Zone,
Kakkanad
Residing at Channakuzhiyil House,
Padappu, Sankaranpady P.O.,
Kazargod. - Applicant
(By Advocates: Mr. P.A. Kumaran & Mr. Nirmal V. Nair)
VERSUS
1. Union of India,
represented by the
Secretary to Government of India,
Ministry of Commerce and Industry,
New Delhi-110 001.
2. The Joint Secretary,
Ministry of Commerce and Industry,
New Delhi-110 001.
3. The Development Commissioner,
Cochin Special Economic Zone,
Kaddanad-682 037.
4. Deputy Development Commissioner,
Cochin Special Economic Zone,
Kaddanad-682 037. - Respondents
(By Advocate: Mr. N. Anilkumar, SPC)
This Original Application having been heard on 11 th May 2023, the
Tribunal on 19.05.2023 delivered the following :
OA No.180/00358/2017
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ORDER
Per: Justice Sunil Thomas, Judicial Member The applicant was engaged as Security Guard under the 3 rd Respondent in the Cochin Special Economic Zone at Kakkanad. He was suspended from service and Departmental enquiry was initiated under Rule 14 of the CCS(CCA) Rules, 1965 on allegation of major misconduct. The charge as disclosed from Annexure A-1 and Annexure A-4 Charge Memo is as follows:
".....After availing Second Saturday holiday off on 10 th October 2009, Shri James Thomas, Security Guard had not reported for duty during subsequent dates. On a routine visit to the Administrative Building premises on 16 th October 2009 at about 9.45 hrs, Security Officer found that Shri James Thomas was behaving in an unruly manner under the influence of extreme intoxication. On questioning of the requirement of his presence in the Administrative Building premises, he was not in a position to give any convincing explanation and used abusive language, thereby causing public nuisance and earning bad reputation to the organisation. Since it was observed that his condition was worsening under the influence of alcohol, he was taken for a medical examination. Initially he was taken to the Primary Health Centre, Kakkanad and after preliminary observation, the Duty Doctor recorded that he was abnormal due to excess consumption of alcohol. Since the hospital was not having the facility for blood test, he was referred to Government Hospital, Ernakulam by the Duty Doctor. However, on reaching the Government Hospital, Ernakulam, Shri James Thomas resorted to violent methods to avoid collecting of blood samples for examination of alcoholic contents and succeeded in not giving the blood samples. In view of this, he was taken to the Thrikkakara Police Station where Breath Analyzer Test was conducted, which confirmed he was in a high state of intoxication causing unsteady behaviour on his part."
On an allegation that he violated Rule 3(1)(i)(ii) and 22(a) (bb), (c) and (d) of CCS Conduct Rules, 1964 the applicant faced Departmental proceedings. In the Departmental proceedings witnesses were examined and documents OA No.180/00358/2017 -3- were produced. On evaluation of the entire materials placed in the enquiry, the Disciplinary Authority, Deputy Development Commissioner by Annexure A1 dated 19.05.2010 imposed the penalty of 'removal from service' with effect from 19.05.2010. Applicant filed an appeal before the Appellate Authority. The Appellate Authority by Annexure A-2 order modified the penalty into one of 'compulsory retirement'. The applicant preferred a revision before the competent authority. The 1 st respondent, Revisional Authority, by Annexure A-3 order dated 11.05.2016 reinstated the original order of removal from service.
2. The above order of the Disciplinary Authority was challenged by the applicant in OA No.190/2013. By Annexure A-13 order, this Tribunal found that Revisional Authority without considering the order of the Appellate Authority and without giving opportunity to be heard by the applicant restored the order of the Disciplinary Authority. It was held that the order passed by the Revisional Authority, to that extent, was vitiated and the order was set aside. The matter was remanded with a direction to the Revisional Authority to consider the matter afresh and to dispose of the Revision within a stipulated time, after affording an opportunity of being heard to the applicant . Thereafter, by Annexure A-3 order the Revision was dismissed and the order of the order of compulsory retirement was confirmed. This is under challenge in the present proceedings. The relief sought by the applicant is to quash Annexures A-1, A-2, A-3 and A-4 and to direct the respondents to reinstate the applicant in service with effect from OA No.180/00358/2017 -4- the date on which he was suspended from service with all consequential benefits including back wages.
3. Heard both sides and examined the records.
4. The learned counsel for the applicant assailed the impugned order both on merits as well as on a legal ground of serious infraction of Rule 14(18) of the CCS (CCA) Rules, 1964.
5. Challenging the conclusions arrived by the Disciplinary Authority confirmed Appellate Authority and Revisional Authority, it was contended by the learned counsel for the applicant that the allegations against the applicant were not established by any cogent materials. It was contended that though the allegation was that the applicant was found in an inebriated condition, absolutely no material was placed before the Authority to establish it. No blood test was conducted. The conclusion was arrived by the Disciplinary Authority solely relying on the Breath Analyzer Test, which was not reliable. The document purported to be that of Breath Analyzer Test did not indicate that it related to the applicant. It was concocted by the superior officers of the applicant. There was no material to show that the applicant was intoxicated on the relevant day or that he had violated any of the Conduct Rules.
6. Annexure A-7 is the Inquiry Report . It shows that before the Inquiry OA No.180/00358/2017 -5- Officer, 5 witnesses were examined and 3 documents were marked. The 1 st document was the O.P. Ticket from Primary Health Centre, Kakkanad. The 2nd document was Breath Analyzer Test result of theThrikkakara Police Station, Kakkanad and the 3rd one was the report of the Security Officer.
7. These documentary evidences were sought to be supplemented with the oral testimony of the 5 witnesses. The 1 st witness was the Assistant Development Commissioner(Admin), CSEZ. He stated that on the relevant day the applicant was found in an inebriated condition. He was informed by the Security Officer regarding the incident. He found the charged officer in the changing room of the Security Officers. He was behaving in an abnormal manner and was taken for medical check-up. The 2 nd witness was the Assistant Security Officer who also witnessed the incident. He asserted that he saw the charged officer in the Security Officers Room on the relevant day. He confirmed that the officer seemed to be in an intoxicated condition and was taken to the Primary Health Centre, Kakkanad. The 3 rd witness was the Head Security Guard who also stated that he had seen the charged officer on that day in the course of the incident. He was behaving abnormally. According to him the charged officer was either drunk or mentally deranged. He was taken to the General Hospital Ernakulam. He confirmed that the charged officer refused to give blood sample and to undertake blood test. The 4 th witness was the Security Guard. He also confirmed that he saw the charged officer on the relevant day and that he was acting in an abnormal manner. He appeared to be drunk.
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8. Annexure A-4 is the report issued OP ticket of the Primary Health Centre, Kakkanad dated 16.10.2009. It stated that the applicant was brought for examination in the OP on the request from the Deputy Development Commissioner, CSEZ, Kakkanad, Cochin, Kerala. It was stated that he exhibited abnormal behaviour, had incoherent speech and smell of alcohol. Blood for alcohol level was directed to be taken. Annexure A-4(5) in the report was the result of Breath Analyzer Test. It bears the name of the applicant and the details of test are mentioned in the report. Annexure A4(6) is the report issued by the Security Guard wherein he had referred to the incident in which the applicant was found to be in an intoxicated condition. He confirmed that he was uttering unconnected words and was abusive in his speech. He kept on saying that he was off duty and nobody could take action. On confirming that he was extremely intoxicated, he was taken to the Primary Health Centre, Kakkanad for blood test. He was thereafter taken to the Government Hospital, Ernakulam. Thereafter he was taken to the Police Station at Thrikkakkara where the Station House Officer took Breath Analyzer Test. He was found to be drunk. He was handed over to the police for further action.
9. These materials were assailed by the counsel for the applicant on the grounds mentioned earlier. Records reveal that all the witnesses were cross- examined. However their version remained consistent on core aspects. Essentially, the fact that the applicant was found to be in an intoxicated condition, that he was behaving abnormally, that he was taken to the OA No.180/00358/2017 -7- Primary Health Centre and thereafter to the Government Hospital and later to the Police Station and that he had undergone Breath Analyzer Test, are established beyond doubt through the above witnesses. It is true that blood analysis test was not conducted. The witnesses have a version that he refused to undergo blood test. Hence a contention that blood analysis was not done is not available to the applicant. However in a Departmental Proceedings of this nature, it is not essential that the charge against one person is liable to be established beyond doubt. It also emerges that applicant did not have specific defence as such. His defense, as evident from the cross examination and the questions put by CVO fully indicates that they were only vague general defences. Materials establish that in the domestic inquiry he did not have specific case that he was not intoxicated on that day. He had no case that allegation was absolutely false or he was falsely implicated. His defence was a bare denial of allegations raised again him. We feel that substantial materials to establish the charge against the applicant are available on records. To that extent we are in agreement that the conclusion arrived by disciplinary authority, the Appellate Authority and the Revision Authority, that the allegations against the applicant stood established in the domestic inquiry. Hence, the conclusion arrived at does not call for any interference on merits.
10. The next main contention of the learned counsel for the applicant was that after the completion of evidence by the Department, the applicant was not given an opportunity to explain the materials marshalled against him. It OA No.180/00358/2017 -8- was contended that it amounted to serious infraction of Rule 14(18) of CCS(CCA) Rules, which provided that after completion of recording of evidence in an inquiry the delinquent officer shall be given an opportunity to explain the circumstances available against him, especially when he has not chosen to examine himself. It was contended that this was a very valuable right available to the charged officer, which has been held to be mandatory one by the Hon'ble Supreme Court.
11. To support this contention Learned counsel for the applicant relied in the decision reported in Ministry of Finance and Another v. S.B. Ramesh { (1998) 3 SCC 227}. Referring to Rule 14(18) of the CCS(CCA) Rules, Supreme Court held that under Sub-Rule (18) of R.14 of the CCS(CCA) Rules, it was incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as a witness. It was held that the above mandatory provision of the CCS(CCA) Rules was lost sight of by the Enquiry authority in that case. It was held further that even if the Enquiry Officer had set the officer involved ex-parte and recorded the evidence, he should have adjourned the hearing to another date to enable the officer to participate in the enquiry thereafter. The inquiry authority, though did not choose to give the applicant an opportunity to cross examine the witness examined in support of the charge, after recording evidence, he should have given an opportunity to the applicant to appear and then proceed to question him under sub-r(18) of R 14 of CCS(CCA) Rules if he OA No.180/00358/2017 -9- appeared. The Supreme Court held that Rule 14(18) was mandatory stipulation and confirmed that even in case of ex-parte inquiry the inquiry officer was bound to adjourn the matter to another date to give the applicant an opportunity to appear and explain his stand.
12. The above decision was relied on in many subsequent decisions specifically by the Principal Bench, CAT, Delhi in Lalit Kumar vs. Union of India and Ors { 2006 (1) SLJ 86 CAT}. In that case also it was held that under Rule it was obligatory upon the Enquiring officer to generally question the charged officer on the circumstances appearing in the evidence brought against him. It was held that it was enacted with a view that whatever evidence had come in the enquiry, apart from the written statement, an explanation is also sought to rebut the circumstances, which would be in consonance with the principle of reasonable opportunity and audi alteram partem as inbuilt in the principles of natural justice, which was the sine qua non of fair play.
13. Countering this contention and the reliance placed on the above decisions, the learned SPC who appeared for the respondents relied on the decision of the Supreme Court in State Bank of Patiala and others vs. S.K. Sharma, {(1996) 3 SCC 364}. It was contended that Supreme Court held that even if no adequate opportunity/fair hearing was given, test of prejudice should be applied and if no prejudice was caused, no interference would be called for under the Service Law in disciplinary proceedings. It OA No.180/00358/2017 -10- was contended by the learned counsel that even assuming that statutory requirement was not complied, the court shall not interefere unless it was established, by cogent materials that violation had caused substantial prejudice to the parties. It was also contended that Rule 14(18) was essentially procedural in nature and was not a mandatory provision. Yet another contention was that mere use of the word 'shall' therein cannot be held to be mandatory. It was further contended that the decision of the Supreme Court in S.B. Ramesh case (supra) did not apply to the fact of the case, since in that case, the infraction of Rule 14(18) was only one among the few grounds which prompted the Supreme Court to interfere.
14. We are not at all in agreement to the above contention for various reasons. In S.K. Sharma case (supra), referred above, it was held that Rule 68(b)(iii) which was relied in that case was only a procedural provision which was not substantial or mandatory in character, and hence in the absence of prejudice, no interference was called for. In the case at hand Rule 14(18) has been held to be mandatory provision. Further the contention that mere use of the word 'shall' cannot be held mandatory, cannot apply to the case at hand since Rule 14(18) gives no discretion to the enquiry officer to exempt the charged officer from being questioned, if he has not cross-examined himself. Consequentially Rule 14(18) has been consistently held to be mandatory in cases wherein the charged officer has not offered himself for examination.
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15. Materials on record clearly show that in the case at hand the charged officer was not examined. It was obligatory on the part of the inquiry officer to have afforded an opportunity to the charged officer to explain as contemplated under Rule 14 of the CCS(CCA) rules. In normal circumstances this should have resulted in setting aside the order of the disciplinary authority and all consequential orders, with a direction to the disciplinary authority to afford the opportunity to the charged officer to explain the circumstances available on record as against him under Rule 14(18).
16. However, the crucial question is whether such a Rule is liable to be exercised in this case? A reference to Annexure A-5 which was the first reply given by the applicant to the disciplinary authority in answer to the penalty proposed to be imposed on him, show that the applicant did not have a case that there was infraction of Rule 14(18). However, in para 6 of the appeal memorandum produced as Annexure A-9 and as well as in para 7 of Annexure A10 Revision and also in Annexure A16 written submission at para 6, the applicant has specifically alleged that there was infraction of Rule 14(18). It is pertinent to note that the disciplinary authority did not deem it necessary to consider the question of Rule 14(18). This point was specifically raised in the Appeal Memorandum. However, the Appellate Authority did not interefere and did not seem to have referred to such an argument. Though the same ground was urged in Annexure A10- Revision, the Revisional Authority did not deem it fit to accept that OA No.180/00358/2017 -12- condition.
17. It is pertinent to note that in Annexure A13, there is absolutely no reference to infraction under Rule 14(18). In other words, the applicant seems to have not pursued the ground under Rule 14(18) before the Tribunal as evident from Annexure A-13. Even assuming that such a contention was taken up before this Tribunal, the Tribunal did not deem it fit to accept such a contention. Normally, breach of Rule 14(18) is a more fundamental error, which would have gone to the very root of the enquiry proceedings itself. If this Tribunal in the earlier round of litigation was convinced about breach of Rule 14(18), necessarily the order would have been the setting aside of termination and remanding the matter to the disciplinary authority. From the face of Annexure A-13 it is evident that this Tribunal was attracted only by the contention that Revision Authority did not consider the Appellate order on merits, and without considering it restored the original order of the disciplinary authority, without giving an opportunity of being heard. In other words the contention of breach of Rule 14(18) was either not raised before this Tribunal in the earlier round of litigation or it was impliedly not accepted by the Tribunal. The reasonable conclusion discernable from Annexure A-13 is that the Tribunal did not deem it fit to accept the ground of Rule 14(18) as ground worth interference in the earlier round. Had this contention been advanced earlier or if this Tribunal had found the contention to be attractive, necessarily the order would have been to set aside not only the order of Revisional Authority, but OA No.180/00358/2017 -13- also that of Appellate Authority and remitting the matter to the disciplinary authority to afford the applicant reasonable opportunity to cure the breach of Rule 14(18). On the other hand the relief granted was a limited one to set aside the Revision order and the Authority was directed to consider the appeal on merit. In other words, Annexure A-13 indicates that the infraction of Rule 14(18) was either not advanced before the Tribunal or that if it was advanced, it was found not sustainable.
18. In the present circumstances, where after having one round of consideration, when the order of Revisional Authority is now sought to be challenged, it may not be appropriate for this Tribunal, that too, at this length of time to remand the matter to the disciplinary authority to enable the inquiry authority to afford an opportunity to the applicant of being heard under Rule 14(18) which would only be an empty formality now. This is more on the ground that the allegation against the applicant appears to be serious and seems to be established by evidence.
19. In the light of the above, we feel that it would not be appropriate to accept the contentions advanced by the applicant. Hence we find that the contention under Rule 14(18) is not sustainable at this stage.
20. In the light of the above conclusion, we find no reason to interfere with the order in revision. The learned counsel for the applicant however pointed out that considering the pendency of the matter before this Tribunal, OA No.180/00358/2017 -14- the monetary benefits due to him in the form of pension and other benefits have not been released to him. We feel it appropriate to give direction to release the entire dues to him as on this date within a period of two months from the date of receipt of copy of this order.
21. In the result the OA fails and is dismissed however with the direction to release the entire arrears due to the applicant. No costs.
(Dated this the 19th day of May, 2023)
K. V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
va
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List of Annexures
Annexure A1- A true copy of the Order No.01/19/2009:VIG; CSEZ/2675 dated 19.5.2010 issued by the 4th respondent Annexure A2- A true copy of the appellate order No.1/19/2009/VIG:CSEZ/3750 dated 23.06.2010 issued by the 3rd respondent Annexure A3- A true copy of the Order No.A-12/1/2010-SEZ dated 11.5.2016 issued by the 1st respondent alongwith the covering letter No.01/19/2009 Vig: CEPZ/2757 dated 17.5.2016 issued by the 4 th respondent Annexure A4- A true copy of the memo No.01/19/2009:VIG; CSEZ/7816 dated 23.10.2009 issued by the 3rd respondent Annexure A5- A true copy of the written statement of the applicant dated 30.10.2009 Annexure A6- A true copy of the defence brief submitted by the defence assistant dated 2.2.2010 Annexure A7- The true copy of the report of the inquiry under the CCS(CCA) Rules 1964 dated 24.03.2010 Annexure A8- A true copy of the representation dated 31.03.2010 Annexure A9- A true copy of the appeal dated 25.05.2010 Annexure A10- A true copy of the revision petition dated 28.11.2010 Annexure A11- A true copy of the Order dated 25.06.2012 in OA 494/2011 on the files of this Tribunal Annexure A12- A true copy of the communication letter No.A12/1/2010-SEZ dated 2.04.2012 issued by the 1st respondent Annexure A13- A true copy of the final order dated 17.2.2016 in O.A.190/2013 on the file of this Tribunal Annexure A14- A true copy of the representation dated 15.3.2016 Annexure A15- A true copy of the letter No.A12/1/2010-SEZ dated 7.04.2016 Annexure A16- A true copy of the written submission submitted by the applicant ***** OA No.180/00358/2017