Karnataka High Court
The Director General Of Central ... vs Dr Mrs Sania Akhtar on 29 June, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.13224/2020 (S-CAT)
BETWEEN:
1. THE DIRECTOR GENERAL OF
CENTRAL INSTITUTE OF PLASTICS
ENGINEERING AND TECHNOLOGY,
MINISTRY OF CHEMICAL AND
FERTILIZERS HEAD OFFICE,
GUINDY, CHENNAI - 32.
2. UNION OF INDIA,
THROUGH THE SECRETARY,
DEPARTMENT OF CHEMICAL AND
PETROCHEMICALS,
MINISTRY OF CHEMICALS AND
FERTILIZERS,
DR. RAJENDRA PRASAD ROAD,
"A" WING, SHASTRI BHAVAN,
NEW DELHI - 01.
...PETITIONERS
(BY SRI KUMAR M.N., CGSC)
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AND:
DR. (MRS) SANIA AKHTAR,
W/O MOHAMMAD ZUBAIR,
AGED ABOUT 59 YEARS,
EX-PRINCIPAL DIRECTOR,
(SENIOR PRINCIPAL SCIENTIST),
CIPET:SARP - APDDRL,
BENGALURU,
C/O MR. MOHD ZUBAIR,
HOUSE NO.2023, RAJIV NAGAR,
STAGE - 2, PHASE - 2,
MYSURU - 570 019.
...RESPONDENT
(BY SRI N.G. PHADKE, ADVOCATE)
***
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO QUASH THE IMPUGNED ORDER DATED 05.03.2020 IN
O.A.NO.170/00417/2019 PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH,
BANGALORE PRODUCED AT ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, K.S.HEMALEKHA J.,
MADE THE FOLLOWING:-
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ORDER
The issue involved in this petition is, whether the remittance of the matter by the Central Administrative Tribunal (hereinafter referred to as "the Tribunal" for the sake of convenience) to consider the issue in proper perspective, on the ground that the applicant was punished in a very disproportionate and biased manner by the respondent/authorities is justified.
2. The parties herein are referred to as per their ranking before the Tribunal.
3. This petition is preferred by the Union of India assailing the order dated 05/03/2020, passed in O.A.No.170/00417/2019 by the Central Administrative Tribunal, Bangalore Bench (hereinafter referred to as "the Tribunal" for the sake of convenience), whereby the application was allowed and the matter was remitted back to the authority to consider the issue in proper perspective and to pass appropriate orders confining to the direct supervisory lapses, if any, on the part of the applicant. -4-
4. Brief facts of the case are that the applicant, on promotion, was posted as Deputy Director and transferred from Lucknow to Mysuru and she joined the M/s. Central Institute of Plastic Engineering and Technology ("CIPET" for short) Mysuru, in the month of November, 2007. One H.N.Aravind who was working as a Technician Grade-I under the control of the testing department in CIPET in Mysuru, had opened an account in M/s.Cauvery Kalpatharu Grameena Bank, Mysuru, and has illegally diverted the Government funds of Rs.1.25 crore from CIPET. The act of the H.N.Aravind was not traced either by the internal or by the external audit from 15/10/2005 to 10/07/2008. This being so, after the applicant joined the department in the month of November 2007, on consultation for opening of an account in the nearest bank, it was found that H.N.Aravind had opened a fake account in M/s.Cauvery Kalpatharu Grameena Bank, Mysuru, in the name of CIPET Mysuru and a report was prepared by the applicant on 18/10/2008 -5- and informed respondent No.1/authority and in view of the report submitted by the applicant, and H.N.Aravind was issued with a show-cause notice and later on was suspended and thus, the applicant using the authority had concluded that there was fraud by H.N.Aravind to the extent of Rs.1.25 crore. However, respondent No.1/authority issued a charge memo and framed the charges against the applicant and penalized the applicant.
5. Respondent No.1/autority ordered to initiate disciplinary proceedings against the applicant alleging misconduct and disciplinary enquiry was ordered by appointing an enquiry officer. The charges against the applicant was that while functioning as the Deputy Director in the office of CIPET, Mysuru, during the period from August 2007 to July 2008, she was grossly negligent, lacked devotion of duty, failed to ensure the integrity of the subordinates resulting in H.N.Aravind, the then Technician Grade-I, fraudulently diverting 151 cheques/drafts amounting to Rs.40,30,205/- belonging the -6- CIPET, Mysuru, to his fraudulent personal account and there is lapses on the part of the applicant, that while the applicant was functioning in CIPET Mysuru, she facilitated H.N.Aravind for misappropriation of a sum of Rs.48,102/- and showed lack of integrity, devotion to duty and her prejudicial behaviour against the interest of the institution and that the applicant has approved for payment of full salary for the period from august 2007 to July 2008 to H.N.Aravind to the tune of Rs.19,591/- though he was unauthorisedly absent for a period of 46 days and as such, the applicant failed to maintain absolute integrity, devotion to duty and acted in gross negligent manner.
6. On holding disciplinary enquiry, the authority passed final order on the charges leveled against the applicant holding that charge Nos.1 and 2 are very grave in nature and imposed major penalty of "reduction to the lower stage in the time scale of pay by two stages for a period of one year with cumulative effect in the pay band and grade pay of Rs.37,400 - 67,000 and 8,900 (Grade -7- Pay) with effect from 15/06/2015 (order date)" and also reduced the pay by two stages from Rs.58,050/- per month to Rs.54,200/- per month in the Pay Band and Grade Pay of Rs.37400 - 67000 and Rs.8,900 (Grade Pay) for a period of one year with cumulative effect from 15/06/2015 and also proposed that the applicant will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing her future increments of pay permanently and that she will be eligible for regular annual increments only after completion of one year from the date of order from the pay of Rs.54,200/-.
7. The applicant being aggrieved by the action of respondent No.1 filed appeal before the appellate authority. The appellate authority vide order dated 27/03/2017 (Annexure-A19), exercising the power under Rule 2.11 (4) (b) of Conduct and Discipline Rules of CIPET, rejected the appeal of the applicant and confirmed the penalty issued by the disciplinary authority as per -8- Annexure - A15. Aggrieved by the charge major memo CIPET/HO/SA/DIS/2011-12 dated 18/01/2012 (Annexure A-01); report dated 23/04/2014 of the presenting officer (Annexure A-10); report of the enquiry officer HO/Admn. & Pers.-II/SA/Findings-IR/2014/341 dated 15/07/2014 (Annexure A-12), penalty order No.HO/PAF/SA/Final order/2015 dated 15/06/2015 (Annexure A-15) and appellate order C-16/1/2015-Org.Estt (FTS: 8149) dated 27/03/2017 (Annexure A-19), the applicant sought for setting aside before the Tribunal.
8. The Tribunal on re-appreciation of the material and evidence on record and on re-appreciation of the orders passed by the respondent/authority held that the conclusion arrived by the authorities and the applicant being penalized is very disproportionate and is in a biased manner. However, the Tribunal held that since diversion of the amount due to the organization was continuing during her time though she was no way directly connected, directed the respondent to reconsider the issue of penalty -9- by taking into consideration the explanation offered by the applicant and to pass appropriate orders confining only to the direct supervisory lapses on the part of the applicant. It is this order of the Tribunal which is assailed by the authorities before this Court.
9. Heard learned counsel for the parties to the lis.
10. Learned Central Government Standing Counsel, Sri Kumar M.N., while referring to the order of the Tribunal would contend that the Tribunal fell in error in remanding the matter to confine only to direct supervisory lapses of the applicant which is contrary to the disciplinary authority's order and the order passed by the appellate authority, whereby the authorities on affording proper opportunity to the applicant and the articles of charge levelled against the applicant having been proved, the penalty has been imposed against the applicant. It is further contended that due to the negligence on the part of the applicant to perform her duty and there being lapses on her part, the institute had to suffer loss of more than
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Rs.40.00 lakh, this aspect has not been considered by the Tribunal while setting aside the order passed by the disciplinary authority and the appellate authority. It is further contended that the quantum of punishment to the applicant is justified and the interference by the Tribunal to such gravity of misconduct is not acceptable.
11. Per contra, Sri N.G. Phadke, learned counsel for respondents sought to justify the order of the Tribunal and contended that the Tribunal has rightly remanded the matter to the authorities to reconsider the case of the applicant as the articles of charge issued against the applicant was only insofar as negligence, lack of devotion of duty and failing to ensure the integrity of the subordinates and it is not the case of the authorities that the applicant had at any time misappropriated the amount causing loss to the institution and that the applicant had taken action and prepared a report against H.N.Aravind for illegal account and misappropriation of Government fund and based on the above report, H.N.Aravind was
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suspended and major charge memo was issued. This having been done, it is contended that the authorities were not justified in issuing the charge memo to the applicant herself on the ground that she has failed in devotion to duty and lack of absolute integrity and that she is unbecoming of the servant of CIPET. It is further contended that the Tribunal has rightly held that the penalty imposed by the authority is disproportionate to the articles of charge issued to the applicant and sought to dismiss the petition filed by the authorities.
12. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully.
13. The charge memo dated 18/01/2012 (Annexure-A1) was issued to the applicant on the following articles of charge:
"Article-1: Dr. Mrs.Sania Akthar while functioning as Deputy Director/Head CIPET Mysore during the period August 2007 to July 2008 was grossly negligent, lacked devotion to duty, failing to ensure
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the integrity of her subordinates which resulted in Mr. H.N.Aravind the then Tech. Gr. I of CIPET Mysore Center (subsequently dismissed from service) in fraudulent diverting 151 cheques demand drafts, amounting to Rs.40,30,205/- drawn in favour of CIPET Mysore to Mr.H.N. Aravind's Personal Current Account No.19 maintained at M/s.Cauvery Kalpatharu Grameena Bank, Hebbal Layout Branch, Mysore. This illegal account was fraudulently opened and operated by Mr.H.N. Aravind in the name of a non existing firm M/s. CIPET Poly Consulting Engineers (CIPET Mysore) with his residential address.
This illegal diversion of 151 instruments (Rs.40,30,205/-) and consequent misappropriation by H.N.Aravind took place due to glaring lapses like mala fide non entry cheques/demand drafts in the tapalregister on several locations, deliberate maintenance of the said register in loose sheets and deliberate non supervision of Mr.H.N.Aravind by Dr. Sania Akthar.
Article-II: That during the aforesaid period and while functioning in the aforesaid office the said Dr.Sania Akthar had colluded with H.N.Aravind and facilitated misappropriation of money received by CIPET Mysore as detailed hereunder:
Pro forma invoice No.PTC/2007-2008/026C dated 26/04/2007 for Rs.49,214/- was issued to M/s.Jain
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Irrigation Systems, Jalgaon by H.N.Aravind. They had issued a HDFC Cheque No.856451 dt. 09/02/2008 for Rs.48,102/- (Rs.49,214 less 1,112/- TDS) and this amount was realized in CA- 19 on 27/02/2008. For this transaction Dr. Sania Akthar had issued Test Report No.3758 (S.No.5834, 5835, 5836, 5837, 5838, 5839) Dated 17/12/2007.
The above acts of Dr. Sania Akthar confirms her connivance which resulted in H.N.Aravind misappropriating the above sum of Rs.48,102/- showing her lack of integrity, devotion to duty and her prejudicial behaviour against the interest of the institute.
Article-III: That during the aforesaid period and while functioning in the aforesaid office the said Dr.Sania Akthar had approved payment of full salary for the period August 2007 to July 2008 to Mr.H.N.Aravind even though he was unauthorizedly absent for period of 46 days during the said period, resulting in a loss of Rs.19,591/- to CIPET which clearly shows that Dr.Sania Akthar failed to maintain absolute integrity, devotion to duty and acted in a gross and negligent manner.
By the above acts, Dr.Sania Akthar had failed to maintain absolute integrity, devotion to duty, and acted in a manner unbecoming of a CIPET Employee. She also acted in a gross and negligent
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manner, acted dishonestly and had failed to ensure the integrity and devotion to duty of her subordinates and acted in a manner prejudicial to the interests of the Institute in terms of Rule 2.1
(a) (b) (c) & 2.2(a) read with 2.4 (01)(09) & (12) of CIPET - Conduct and Discipline Rules."
14. Perusal of articles of charge unveil that the charges levelled against the applicant were in respect of negligence, lacking devotion to duty, failing to ensure the integrity of her subordinates. One H.N.Aravind (technical officer of CIPET) had illegally diverted Government fund of Rs.1.25 crore on 15/10/2005 prior to the applicant was transferred from Lucknow to Mysuru on 12/07/2007 and the fraud was detected by the applicant on 02/04/2008, when H.N.Aravind was transferred from testing department, Mysuru. The applicant was promoted to the post of Deputy Director and was never the reporting officer of H.N.Aravind at any point of time during the period August 2007 to July 2008 and the task of ascertaining and verifying the attendance of every employee is done by the accounts section under the approval of the center head.
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What could be gathered here is that, the applicant had made every single effort and action was taken by submitting her report on 17/10/2008. On the report of the applicant, H.N.Aravind was suspended on 20/10/2008. Surprisingly, the Disciplinary Authority issued charge memo to the applicant herself stating that there was supervisory lapses on the part of the applicant and finally imposed penalty. The penalty imposed by the Disciplinary Authority was confirmed by the Appellate Authority is disproportionate to the charges leveled against the applicant.
15. It is settled proposition of Law that the imposition of penalty must be commensurate with the gravity of misconduct and that any penalty disproportionate to the gravity of the misconduct is violative of Article 14 of the Constitution of India. In this regard, the Hon'ble Apex Court in the case of Union of India & others vs. J.Ahmed [AIR 1979 SC 1022], the relevant paragraphs read as under:
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"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster) (1886) 17 QBD 536 (at P.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) (2)] (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa Raza (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct".
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik (1966)2 SCR 434:
(AIR 1966 SC 1051), in the absence of standing
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orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute
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misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabin man signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life.
Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd. (1978)19 Guj LR 108 at P.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
(emphasis supplied)
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16. Keeping in view this proposition, considering the gravity of charges levlled against the applicant and that no loss to the authority was caused by the applicant, we are of the considered view that the order of remittance by the Tribunal for reconsideration is just and fair to meet the interest of justice and does not call for any interference.
17. In view of the above, we pass the following:
ORDER
(i) The writ petition is hereby dismissed as devoid of merit.
(ii) The order passed by the Tribunal dated 05/03/2020 made in O.A.No.170/00417/2019 remanding the matter to the authority to consider the issue raised therein is hereby confirmed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE S*