Kerala High Court
P.Venu vs Union Of India on 18 December, 2019
Author: K.Vinod Chandran
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941
O.P(CAT).No.119 OF 2016(Z)
AGAINST THE ORDER IN O.A.180/2014 DATED 11.03.2016
OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER/S:
P.VENU, AGED 62 YEARS,
ASSISTANT SALT COMMISSIONER (RETIRED),
RESIDING AT NANDAVANAM, UDAYANAPURAM, VAIKOM,
KOTTAYAM DISTRICT - 686 143.
BY SRI. P.VENU (PARTY IN PERSON)
RESPONDENT/S:
UNION OF INDIA, THORUGH THE SECRETARY,
DEPARTMENT OF INDUSTRIAL POLICY & PROMOTION,
MINISTRY OF COMMERCE & INDUSTRY, UDYOG BHAVAN,
NEW DELHI - 110 011.
R1 BY SRI.P.VIJAYAKUMAR, ASG OF INDIA.
R1 BY SRI.KRISHNADAS P.NAIR, CGC
OTHER PRESENT:
ADV.SRI.S.RADHAKRISHNAN (AMICUS CURIAE)
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12-12-2019, THE
COURT ON 18-12-2019 DELIVERED THE FOLLOWING:
O.P(CAT).119 of 2016 - 2 -
K.Vinod Chandran & V.G.Arun, JJ.
-----------------------------------
O.P(CAT) No.119 of 2016-Z
-----------------------------------
Dated this the 18th day of December, 2019
JUDGMENT
K.Vinod Chandran,J:
We posted three Original Petitions [O.P.(CAT) Nos.119/2016, 16/2019 and 268/2019] together, from three separate orders of the Central Administrative Tribunal ["CAT" or "Tribunal" for brevity]. The same applicant before the Tribunal is a Government servant, who retired, as Assistant Salt Commissioner, on 30.06.2013. Two matters [O.P (CAT) Nos.119/2016 and 16/2019] are with respect to disciplinary proceedings initiated against the applicant, one of which ended with imposition of penalty. The Tribunal though found the allegation of misconducts having been proved, relegated the matter to the Disciplinary Authority for consideration of reduction of penalty. In the second Original Application ['OA' for brevity], in which the disciplinary proceedings had not concluded, the Tribunal found the initiation to be improper and allowed the OA, against which the Union of India is before us. While the above two matters were pending, the applicant was denied gratuity and commuted value of pension; the provisions O.P(CAT).119 of 2016 - 3 -
enabling such withholding was challenged as unconstitutional before the Tribunal, which OA stood rejected. The third Original Petition [O.P(CAT) No.268/2019] is filed by the applicant against that rejection order of the Tribunal. Though the very same applicant is before us, we pass separate judgments in the three Original Petitions. We refer to the parties from their status in the OA and Annexures as produced in the OA.
2. Here, the applicant was proceeded against on three allegations leading to three charges of misconduct, which were found to have been proved at the inquiry. The Disciplinary Authority imposed a penalty of reduction of 20% of the monthly pension payable to the applicant for a period of five years. The applicant has raised various grounds against the inquiry, from its inception. It is contended that the approval of the Disciplinary Authority in Annexure A-1 is not proper for reason of there being no explicit opinion expressed by the authority. There is a mandate for such expression of opinion as has been found by the Hon'ble Supreme Court in Chairman- Cum- M.D., Coal India Ltd. v. Ananta Saha [(2011) 5 SCC 142] and Union of India v. B.V.Gopinath [(2014) 1 SCC 351]. It is contended that there is also a mandate for a preliminary hearing in which the applicant had produced the decisions of the Tribunal & O.P(CAT).119 of 2016 - 4 -
the High Court having direct bearing on two charges, which would have been dropped, if properly considered. It is argued that Rule 14(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ['CCA Rules' for brevity] requires that the Disciplinary Authority, on consideration of the imputation of the misconduct or misbehaviour, arrive at an opinion that there are grounds for inquiring into it to find the truth. These grounds are raised on the initiation of inquiry itself.
3. The applicant does not have any allegation as to the disciplinary proceedings having been held in violation of the principles of natural justice. However, the applicant has very appealing arguments against Annexure A-3 order of the Disciplinary Authority, which is challenged as not being a speaking order. Rule 15(4) of the CCA Rules specifically require the Disciplinary Authority to enter into findings on the representation made by the Government servant as also on all or any of the Articles of Charges, on which findings alone can the penalties specified in Clauses (i) to (iv) of Rule 11 be imposed. There is absolutely no finding of the Disciplinary Authority discernible from Annexure A-3 order, which only records the findings of the Inquiry Officer and the recommendations of the Union Public Service Commission O.P(CAT).119 of 2016 - 5 -
['UPSC' for brevity]. Though representations were filed, both against the inquiry report and the advice of the UPSC, the order states that the later representation was received. Quite a contrary stand has been taken in the counter affidavit, which speaks of a representation having been received, but beyond the time stipulated; which is also asserted to have been considered in the order. The initiation of inquiry was improper and the final order passed is also vitiated, is the argument of the petitioner-applicant, who appeared in person before us.
4. Sri.P.Vijayakumar, learned Assistant Solicitor General appeared for the Union of India along with Sri.Krishnadas P.Nair, Central Government Standing Counsel. The learned ASG, at the outset, contended that the grounds raised to challenge the initiation of inquiry cannot now be urged by the applicant for reason of the same having been urged in other proceedings, which have acquired finality. Annexures A-5 and A-9 orders, of two different Benches of CAT, are pointed out to buttress this contention. It is submitted that though both the Tribunals did not consider the specific issue raised therein when such prayers were made and not considered, it is to be deemed to have been declined. The applicant took no proceedings from the orders of the Tribunal and as of now is estopped from raising such O.P(CAT).119 of 2016 - 6 -
a contention. It is argued that serious lapses of loss to the exchequer, insubordination, indiscipline and drawing of amounts beyond the officer's powers were alleged against the applicant. An inquiry was held, in which all the charges were proved and the officer does not have any complaint as to reasonable opportunity having not been afforded to put forth his defence. The limited jurisdiction available to the Tribunal and the High Court is specifically urged to dissuade us from causing any interference. It is argued that though the Tribunal ought not have directed reduction of penalty, the Government has not challenged the same. The findings of the Disciplinary Authority have been affirmed by the Tribunal and there is no question of a different view being taken by this Court on a re-appreciation of evidence. The penalty order is sought to be sustained on the ground that the Disciplinary Authority has considered the findings of the Inquiry Officer and the recommendations of the UPSC and concurred with the same to impose a penalty on the delinquent officer.
5. The Tribunal found the misconducts having been proved at the Inquiry. It was also found that there were mitigating factors persuading the Tribunal to hold the punishment to be grossly dis-proportionate. The medical O.P(CAT).119 of 2016 - 7 -
camps were found to have been well organized and conducted successfully. Though the applicant ought not to have split up the amounts, it was held that there was no allegation even of the applicant having received any pecuniary advantage. The decisions with respect to the LTC and the salt limit not being in existence also tones down the gravity of the offences alleged was the categorical finding. It is on this reasoning that the Tribunal remanded the matter to the Disciplinary Authority to consider whether there could be a reduction of the severity of the punishment imposed. There is no challenge to the said directions by the official respondents.
6. Annexure A-1 indicates the steps taken before initiation of the disciplinary proceedings. The Disciplinary Authority of the applicant is the President of India, which powers are delegated to the Union Minister, who, in the present case, is the Minister for Commerce and Industries. Annexure A-1 proposal is seen to have been signed by the Minister, without any expression of opinion or of approval. We have to first look at the preliminary objection raised by the learned ASG on this aspect.
7. Annexure A-5 is the decision of the CAT, Hyderabad Bench, wherein the applicant had contended that the initiation of disciplinary proceedings was without O.P(CAT).119 of 2016 - 8 -
taking into consideration all material facts. The Tribunal though did not find on this specific aspect, held that the respondents followed a fair procedure and there was a preliminary inquiry conducted by a Senior Officer. A request made by the applicant to drop the charges was also examined by the Salt Commissioner and based on the advise of the CVC and also the fact that new facts have not been brought before the respondents, a decision was taken to continue the inquiry. Noticing that the Inquiry Officer and the Presenting Officer have already been appointed, the Tribunal refused to interfere with the proceedings, having found no illegality or mala fide action on the part of the respondents. The OA was disposed of on 17.04.2013 directing expeditious completion of the inquiry, preferably within a period of two months from that date.
8. Again, the applicant approached the CAT, Ernakulam Bench after his retirement, which OA was disposed of by Annexure A-9. Therein, the applicant had specifically prayed for pronouncing the alleged approval granted by the Competent Authority for initiating disciplinary proceedings as null and void; which relief is extracted by the Tribunal in the order. The Tribunal, at that stage also did not advert to any of the facts or contentions and merely noticing the pendency of the disciplinary proceedings, O.P(CAT).119 of 2016 - 9 -
granted the respondents three months time to finalize the entire process and communicate the order of the Disciplinary Authority to the applicant. The order eventually was passed on 22.10.2014, which is produced at Annexure A-3.
9. We find that there is no explicit opinion expressed by the Minister as to there being any relevant materials for inquiring into the allegations levelled against the Government servant. There is not even a perfunctory recording of approval before affixing the signature. But, the applicant raised these grounds twice before the Tribunal and when the Tribunal refused to consider the said grounds, he ought to have taken further proceedings thereon. We cannot at this stage, after completion of the inquiry, consider the challenge against initiation of inquiry, since he is deemed to have acquiesced to the proceedings and waived the specific grounds available, especially since at two instances the judicial forum competent to look into such grounds of irregularity refused to look into it, which orders have attained finality.
10. Now we come to the allegations raised against the final order itself, which are the disparity between the allegations, in the charge memo and as extracted in the O.P(CAT).119 of 2016 - 10 -
order of the Disciplinary Authority as also the same being a non speaking order. Before we go further, we have to look at the allegations levelled against the applicant. The first article of charge was with respect to sanctioning of Leave Travel Concession ['LTC' for brevity] to the staff subordinate to him, amounting to Rs.55,730/- during the year 2003. The allegation was that the benefit of LTC was suspended on 02.03.2001 and restored only from 02.03.2003. The sanction made by the applicant was for the leave travel availed in the year 2003, of the benefit available for the block period 1998-2001. The second allegation is that in violation of condition No.18(c) of a lease agreement entered into with a Company, M/s.Century Chemicals Ltd. and in violation of written instruction issued by the Deputy Salt Commissioner, Ahmedabad, the applicant permitted removal of salt over and above the limit prescribed by the Department, thus attempting to promote commercial interests of the Company. The third allegation was with respect to drawing money from the Government exchequer unauthorizedly in excess of the delegation of financial powers granted to the Assistant Salt Commissioners. Detailed arguments were addressed before us on each of the allegations, which may not be relevant since we are not on a re-appreciation of evidence. Still, we have to notice certain compelling O.P(CAT).119 of 2016 - 11 -
contentions raised by the applicant against the very basis of the charges having been shaken to the extent of there being no misconduct discernible; which is inextricably connected to the ground of the impugned order being issued without any application of mind. The Tribunal itself had found that there were mitigating factors reducing the gravity of the offences/ misconducts and there should be a re-consideration of the penalty imposed.
11. The first charge is on LTC claims having been allowed in violation of the ban imposed by the Government. In this context, we have to first notice the Central Civil Services (Leave Travel Concession) Rules 1988 ['LTC Rules' for brevity], as produced before us by the applicant. Rule 10 enables carrying over of LTC and any person who is unable to avail it, during the particular block of two years or four years, can avail it within the first year of the next block of two or four years. Here, the block period; against which travel was undertaken, as evident from the charge-sheet itself is 1998-2001, a block period of four years. Hence, any person who could not avail the benefit during the said block period, could have availed it in the next year, i.e., till 31.03.2002. The Government suspended LTC for two years from 2001 by O.M.No.31011/3/2001-Estt(A) dated 02.03.2001 issued by the O.P(CAT).119 of 2016 - 12 -
Government of India, Department of Personnel and Training. On the basis of the budget speech, the OM was issued suspending all LTC benefits for a period of two years. It also stood restored, by an OM of even number, issued by the very same Department on 13.03.2003. The benefit was restored with effect from 02.03.2003. When the LTC benefits stood suspended from 02.03.2001, it interfered with the statutory rule conferring the benefit; within the block period itself of about 10 months and the grace period of one additional year after the block period is over ie:
between 02.03.2001 and 31.12.2002. When the benefits stood restored on 02.03.2003, definitely the Government servants who were prohibited from availing the facility would have their rights restored as the specific OM indicated. Hence, the period lost between 02.03.2001 and 31.12.2002 would stand restored between 02.03.2003 and 31.03.2004.
12. In this context, reliance can be placed on Annexure A-14, the order of the CAT, Ahmedabad Bench and Annexure A-15, by which the Gujarat High Court affirmed the order of the CAT. Annexure A-14 order was passed in a batch of OAs filed by the subordinate officers of the applicant from whom recovery was ordered on the ground of the ban having been violated. The CAT found no violation especially quoting Rule 10 of the LTC Rules and the Government orders O.P(CAT).119 of 2016 - 13 -
indicated above. A Division Bench of the High Court affirmed the said order. This was a very relevant consideration when deciding on the misconduct as per Article-I Charge levelled against the applicant. The Inquiry Officer has rejected the said contention on the ground that a subsequent order of the Tribunal or the High Court would not justify the earlier sanction and disbursement made by the applicant. We are unable to subscribe to the said view especially since the Tribunal and the High Court have found the Government servants to be eligible to LTC and, hence, there can be no illegality or irregularity alleged against the applicant for sanctioning and disbursing the same. The consideration was made by two judicial forums after looking into the ban and finding it to be inconsequential as far as the benefit availed after restoration. The Disciplinary authority, as argued, spoke nothing on these aspects.
13. Here we find it apposite to refer to Government of India, Department of Personnel & Training, O.M. No.F 11013/6/94-Estt (A), dated the 27th May, 1994, which is extracted hereunder:-
"The Ministry of Personnel, Public
Grievances and Pension and the Ministry of
Finance are the nodal Ministries responsible for formulating policies and framing rules and O.P(CAT).119 of 2016 - 14 -
regulations relating to service conditions and other aspects of personnel administration of Government servants. The administrative Ministries/Departments are responsible for considering individual cases of Government servants and issuing appropriate orders thereon in accordance with the rules and instructions on the subject.
2. Complaints have been received in this Department that litigation on service matters is on the increase due to non-implementation or incorrect implementation of laid-down policies and rules. Every Government servant is required to maintain at all times devotion to duty. Every Government servant is also required to act in his best judgment in the performance of his official duties or in exercise of powers conferred on him. It is thus enjoined upon all Government servants that they should faithfully implement the laid-down policies, rules and regulations, etc., in service matters. If the prescribed policies, rules orders, etc., on service matters are adhered to and implemented properly by Administrative Authorities, etc., litigation on service matters would be considerably reduced.
3. Ministries/ Departments are, therefore, requested to take necessary measures for proper and timely implementation of prescribed policies, rules, orders, etc., on service matters. It may be impressed upon all concerned that failure to do so will be viewed seriously."
O.P(CAT).119 of 2016 - 15 - This is what the applicant was attempting to pursue
diligently while enabling the benefit of LTC, to employees subordinate to him.
14. The second allegation is on the applicant having committed insubordination insofar as permitting a Company to remove salt over and above the limit prescribed by the Department and thus promoting commercial interest of the Company. We see from the inquiry report that the Deputy Salt Commissioner had directed the Inspector; the later a subordinate officer of the applicant who was the Assistant Salt Commissioner, to restrict the removal of salt by the Company to the limit prescribed. The applicant interfered with the same on the ground that there was no restriction and the licensing of salt had been removed by the Central Government as per a policy decision. As in the case of LTC, the said contention raised by the Company against the order of the Deputy Salt Commissioner had been upheld subsequently by the High Court in Annexure A-16 judgment. We find that this judgment was also brushed aside by the Inquiry Officer on the very same grounds as found in the case of LTC. The Disciplinary Authority also did not consider the same. We do find an extent of insubordination, despite the fact of the subsequent validation of the applicants stand, by the High Court. Though the applicant O.P(CAT).119 of 2016 - 16 -
erred in flouting the directions issued by a superior officer, such actions were in fact perfectly in consonance with law, as existing at that point of time; which has been declared by the High Court of Gujarat as seen from Annexure A-16. We also see from Annexure A-3 that the recommendation of the UPSC found no illegality or irregularity in the applicant having proceeded so. In that perspective there could be no allegation levelled of promoting the commercial interest of the Company especially since the restriction placed by the Deputy Salt Commissioner was found to be not sanctioned by law. These were very relevant aspects which were not considered by the Disciplinary Authority.
15. Now, we come to the third allegation, which is of the applicant having drawn more than the financial powers conferred on him. The applicant had obtained permission from the higher authorities for conducting four medical camps in association with a well-known hospital of the locality. The Department had also sanctioned Rs.30,000/- for each of the camps with a further stipulation that 80% of the amounts should be spent for purchase of medicine. The applicant actually incurred only far lesser amounts, of Rs.10,000/-, for each such camps. The allegation is on the fact that the applicant had split up the amounts for each camp to Rs.5,000/- for medicine and O.P(CAT).119 of 2016 - 17 -
Rs.5,000/- for other purposes, including transport facilities to the medical personnel. Thus, a total of Rs.40,000/- was drawn resorting to 8 sanctions of Rs.5,000/- each for the four different medical camps held.
16. The applicant had capacity only to draw an amount of Rs.5,000/-. The applicant had also, in his representation, specifically pointed out that there arose a problem when the sanctioning of the amounts was delayed by the higher-ups. It is the contention of the applicant that the hospital, which was carrying out the medical camp was supplying the medicines directly to the patients. There was no purchase effected prior to the camps, especially when the dispensation of medicine would depend on the Medical Officer's opinion. It was to meet the urgent situation that the applicant resorted to eight sanctions, each within his financial capacity. We observe that neither the Inquiry Officer nor the Disciplinary Authority or the Appellate Authority looked at the contentions in the proper perspective. It is also to be noticed that the appellant never exceeded the spending limit of 20% of the sanctioned amounts for matters other than medicine since for each camp it was confined to Rs.5,000/-, while the sanctioned amount was Rs.30,000/-. There is also no allegation of any misappropriation or the applicant having intended any O.P(CAT).119 of 2016 - 18 -
pecuniary advantage for himself.
17. We do not find any disparity in the charges levelled and those noticed by the Disciplinary Authority. But we find favour with the applicant on the contention raised, relying on Rule 15 of the CCA Rules, that the impugned order being non-speaking; is vitiated. Annexure A-3 is the order challenged in the OA. We see that the order extracted the Articles of Charges as I, II and III. The report submitted by the Inquiry Officer was sent to the delinquent officer and a representation received against the report. Then it was noticed that the inquiry report along with the representation of the applicant was forwarded to the UPSC. The Commission's recommendations were also noticed. It was then observed that the Commission found the charges having been established; which advice was also stated to have been forwarded to the applicant. The applicant is stated to have not submitted a representation against the advise of the UPSC. Without anything more, in the last paragraph the penalty was imposed referring to the Rules under the CCA Rules and CCS (Pension) Rules, 1972. There is not a whisper about the Disciplinary Authority's opinion on the charges and the evidence adduced or the representations placed before it against the inquiry report as also against the UPSC's recommendations.
O.P(CAT).119 of 2016 - 19 -
18. We first look at the statement made in the order that there was no representation received against the advise of the UPSC. We were taken to paragraph 9 of the counter affidavit dated 21.11.2016 filed by the respondent. Paragraph 9 says so:
"9. The Para 10 & 11 in the above OP are the factual position of the case. It is submitted that none of the grounds under para 121 is legally sustainable. The applicant did not submit his representation against the advice of UPSC within the prescribed period as per CCS (CCA) Rules. However, the same was also examined by relaxing the time limit before issuance of order dated 22.10.2014. Thus the contentions of the paragraph lack merit".
Despite the impugned order saying that no representation was received, the counter affidavit admits a representation having been received, but after the time limit prescribed. It also asserts the representation having been considered by the authority. Quite contrary stances are taken in the impugned order and the counter affidavit. Its trite that the counter affidavit cannot supplement or supplant the reasoning in an order under challenge and we have no hesitation in holding that the representations, both of which were submitted, ought to have been considered by the Disciplinary Authority; which was not done as the impugned O.P(CAT).119 of 2016 - 20 -
order reveals.
19. We also look at sub-rules (4) and (5) of Rule 15 of the CCA Rules, which are extracted hereunder:
"(4) The Disciplinary Authority shall consider the representation under sub-rule (2) and/or Clause
(b) of sub-rule (3), if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (5) and (6).
(5) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty".
20. Rule 15 has the nominal heading "Action on the inquiry report". Sub-rule (1) of Rule 15 speaks of the Disciplinary Authority by itself or through an Inquiring Authority appointed, carrying out a fact finding inquiry so as to submit a report according to the provisions of Rule
14. Sub-rule (2) provides for the Disciplinary Authority to forward the copy of the Inquiry Report, together with its tentative reasons of disagreement, if any, to the delinquent thus enabling a written representation to the Disciplinary Authority within 15 days. Sub-rule (3)(a) O.P(CAT).119 of 2016 - 21 -
requires the Disciplinary Authority, where it is necessary, to consult UPSC and transmit the entire materials available, to the UPSC. Sub-rule (3)(b) requires the Disciplinary Authority to furnish the advice of the UPSC received under Clause (a) to the delinquent and provide a further opportunity to make a written representation against the advice of the UPSC, again within 15 days of its receipt. Hence, there are two representations stipulated; one as against the inquiry report and the other against the advice of the UPSC. Sub-rule (4) as extracted herein above, require the Disciplinary Authority to consider both such representations and record its findings before proceeding further in the matter as specified in sub-rules (5) and (6).
21. We again look at Annexure A3 order. Admittedly there was a representation against the inquiry report, submitted by the applicant, which was also forwarded to the UPSC, in the consultation process. There was no reference to the grounds raised in the representation against the inquiry report, by the Disciplinary Authority when the final order was passed. Again, we notice that the representation against the advice of the UPSC is also said to have been received by the Disciplinary Authority prior to the order being passed. The counter affidavit also O.P(CAT).119 of 2016 - 22 -
states that a consideration was made in the impugned order, which, however, is startlingly absent from Annexure A-3. Hence, there is a total non-compliance of sub-rule (4) of Rule 15 as extracted herein above.
22. Now, we come to sub-rule (5) of Rule 15, where it is mandated that the Disciplinary Authority has to form an opinion as to the penalty to be imposed on the Government servant having regard to "its findings on all or any of the articles of charge". Hence, the Disciplinary Authority is required to independently apply its mind to the evidence adduced and the findings in the inquiry report to come to a conclusion that the charges are proved and on that basis impose such penalties as found fit. There should hence be a consideration of the evidence led at the inquiry and independent findings arrived at; the imposition of penalty being regulated by the decision arrived at on the allegations, ensuring that the punishment is not disproportionate to the proved allegations. None of these are seen from the impugned order and not even a casual statement that the Disciplinary Authority concurs with the findings of the Inquiry Officer. The Disciplinary Authority abdicated its powers and proceeded on the basis of the findings of the Inquiry Officer and the advice of the UPSC; in imposing the punishment, which is a stark infringement O.P(CAT).119 of 2016 - 23 -
of the statutory rule. There is, hence, a total violation of sub-rule (5) of Rule 15 also in the impugned order.
23. We find that the applicant had erred; but always erred on the side of law. The three instances of alleged misconducts can be viewed in another angle; a different perspective, both reasonable and righteous too. On the first misconduct of having sanctioned LTC for the ban period; for travel undertook after the benefit was restored, which was upheld by judicial forums: Can an Officer be penalized for protecting the rights of his subordinates? In interfering with the restriction placed on salt, which interference was upheld by the High Court; though there could be an element of insubordination found:
Is not the civil servant bound to protect the interest of the constituents within his jurisdiction? As to the drawing of amounts for the medical camps; the drawn amount itself being 1/3rd of the sanctioned amount: Can he be faulted for acting with expediency to ensure the successful implementation of a scheme aimed at public good, without doctoring the expenditure to comply with percentage stipulations made without any afterthought? We set aside the impugned order for total non application of mind which also vitiates the order for reason of violation of the statutory rule.
O.P(CAT).119 of 2016 - 24 -
24. Be that as it may, it is trite that when an illegality is found at any stage of the disciplinary inquiry initiated by an authority, the same has to be remanded back to the authority and the proceedings commenced from the stage at which such illegality or irregularity occurred. We found the initiation of disciplinary inquiry having been challenged twice by the applicant and the orders passed therein left unchallenged.
Hence there could be no further challenge entertained on that count before this Court at this stage. This Court has to confine itself to the challenge made before the Tribunal against the final order passed. We also notice that there is no allegation raised against the conduct of the disciplinary inquiry or any ground raised of violation of principles of natural justice. The irregularity or illegality on grounds of violation of the rule, in the Disciplinary Authority having not applied its mind on the allegations, the evidence, the findings in the inquiry as also the grounds raised in the representations made by the applicant, vitiates Annexure A-3 order.
25. When Annexure A-3 order is set aside, the proceedings are to be resumed from that stage. As of now, both the representations are with the Disciplinary Authority. The representations are produced here as O.P(CAT).119 of 2016 - 25 -
Annexure A-8 dated 04.09.2013 against the inquiry report and Annexure A-11 dated 21.09.2014 against the advice of the UPSC. The Disciplinary Authority shall consider the same in accordance with the procedure delineated in Rule 15 and pass a speaking order specifically entering into findings as required under sub-rules (4) and (5) of Rule
15. Needless to say that the observations made by us on the individual charges herein above are to be given due weightage while considering the representations of the applicant.
26. (2009) 15 SCC 620 [Coal India Ltd. v. Mukul Kumar Choudhuri] has succinctly held that the considerations weighing with a a reasonable employer while imposing a punishment on an erring employee are the measure, magnitude and degree of misconduct, eschewing any irrelevant circumstances specifically keeping in mind the doctrine of proportionality; the punishment not being grossly excessive of the alleged misconduct. The Tribunal has found the misconducts alleged to have been proved at the inquiry and has upheld the order of the Disciplinary Authority but caused limited interference to the penalty imposed finding that the gravity of the offences are not that warranting a punishment of withholding of 20% of pension for five years. The Union of India has not O.P(CAT).119 of 2016 - 26 -
challenged the order of the Tribunal and has conceded to the finding that there could be a reduction made. We have set aside the order of the Disciplinary Authority in toto and directed a fresh consideration pointing out serious discrepancies in the very charges framed. We have also found that the Disciplinary Authority at the initial stage itself had not properly considered whether the grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against the government servant exists. We refused to set aside the inquiry on that ground for reasons stated, of the proceedings having culminated and the applicant having raised such grounds in earlier proceedings; which were not pursued further. But the aspects the Tribunal found and we elaborated upon, as to the alleged misconducts, even if held to be proven in the inquiry, further tones down the gravity of the offences alleged, in which circumstance there could be no harsher penalty imposed.
27. We have already confirmed the Tribunal's order setting aside the second disciplinary inquiry in OP (CAT) 16 of 2019. In this case there could be no harsher penalty imposed now on remand. We notice that the applicant has retired six years back and his gratuity and commuted value of pension have not been paid. The Disciplinary O.P(CAT).119 of 2016 - 27 -
Authority shall pass an order within a period of three months from the date of receipt of a certified copy of this judgment, which receipt shall be deemed to be on the date on which the Central Government Standing Counsel receives the copy from the Registry of this Court. The gratuity and commuted value of pension shall be disbursed to the petitioner-applicant as directed by us in O.P(CAT) No.268 of 2019, which is also disposed of today.
The Original Petition (CAT) is allowed, leaving the parties to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vku/-
O.P(CAT).119 of 2016 - 28 -
APPENDIX
PETITIONER'S/S EXHIBITS & ANNEXURES:
EXT.P1: TRUE COPY OF ORIGINAL APPLICATION
NO.180/00997/2014 ALONG WITH ANNEXURE FILED BY THE PETITIONER.
ANNEXURE A1 TRUE COPY OF THE NOTE SHEET TO F.NO.18013/4/2006-SALT APPROVING THE INITIATION OF THE DISCIPLINARY PROCEEDINGS BY THE ORDER DATED 07/11/2011.
ANNEXURE A2 TRUE COPY OF THE CHARGE MEMO ISSUED BY THE RESPONDENT BY THE MEMORANDUM F.NO.18013/4/2006- SALT DATED 11/11/2011. ANNEXURE A3 TRUE COPY OF THE ORDER F.NO.18013/4/2006- SALT DATED 22/10/2014 ISSUED BY THE RESPONDENT IMPOSING THE PENALTY.
ANNEXURE A4 TRUE COPY OF THE PETITIONER'S STATEMENT OF DEFENCE DATED 23/11/2011.
ANNEXURE A5 TRUE COPY OF THE ORDER DATED 17/04/2013 IN OA 620/2012 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, HYDERABAD.
ANNEXURE A6 TRUE COPY OF THE WRITTEN BRIEF DATED 05/06/2013 SUBMITTED BY THE PETITIONER. ANNEXURE A7 TRUE COPY OF THE INQUIRY REPORT. ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED 04/09/2013 SUBMITTED BY THE PETITIONER. ANNEXURE A9 TRUE COPY OF THE ORDER DATED 11/06/2014 IN OA 206/2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
ANNEXURE A10 TRUE COPY OF THE ADVICE OF THE UPSC. ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED 21/09/2014 SUBMITTED BY THE PETITIONER. EXT.P2: TRUE COPY OF THE INTERIM ORDER DATED 19/11/2014 IN O.A.NO.180/00997/2014 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
O.P(CAT).119 of 2016 - 29 -
EXT.P3: TRUE COPY OF THE REPLY STATEMENT FILED ON
BEHALF OF THE RESPONENT IN
O.A.180/00997/2014.
EXT.P4: TRUE COPY OF THE REJOINDER IN O.A.997/2014
ALONG WITH ANNEXURE FILED BY THE APPLICANT. ANNEXURE A12 TRUE COPY OF THE SYNOPSIS DATED 09/07/2007 SUBMITTED TO SHRI S.C. ROY, THE THEN DEPUTY SECRETARY.
ANNEXURE A13 TRUE COPY OF THE LETTER DATED 11/07/2007 ADDRESSED TO S.C. ROY, THE THEN DEPUTY SECRETARY.
ANNEXURE A14 TRUE COPY OF THE ORDER DATED 6TH FEBRUARY 2009 OF THE CAT, AHMADABAD BENCH OAS 365/2007 AND 394/2007.
ANNEXURE A15 TRUE COPY OF THE ORDER DATED 24/12/2009 SCAS 4881/2009 AND 4883/2009.
ANNEXURE A16 TRUE COPY OF THE ORDER DATED 19/11/2010 OF THE HIGH COURT OF GUJARAT IN SCAS 12949/2000 AND 16763/2003.
ANNEXURE A17 TRUE COPY OF THE LETTER DATED 04/07/2007 FROM SRI. C.S. ROY, THE THEN DEPUTY SECRETARY.
ANNEXURE A18 TRUE COPY OF THE LETTER DATED 03/03/2014 FROM THE O/O THE DEPUTY SALT COMMISSIONER, AHMADABAD.
ANNEXURE A19 TRUE COPY OF THE AGENDA AND MINUTES OF THE 40TH MEETING OF THE GRAB FOR SALT HELD ON 28/01/2004.
ANNEXURE A20 TRUE COPY OF THE APPLICANT'S DEPOSITION ON 15/05/2013 AS HIS OWN WITNESS DURING INQUIRY.
ANNEXURE A21 TRUE COPY OF THE OM DATED 10/07/2003 FROM THE OFFICE OF THE ASSISTANT SALT COMMISSIONER, JAMNAGAR.
ANNEXURE A22 TRUE COPY OF THE LETTER DATED 23/12/2002 FROM THE OFFICE OF THE DEPUTY SALT COMMISSIONER, AHMADABAD.
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ANNEXURE A23 TRUE COPY OF THE SUMMONS DATED 22/04/2013
FROM THE IO ADDRESSED TO SRI. S.C. ROY
RETIRED DEPUTY SECRETARY.
ANNEXURE A24 TRUE COPY OF THE LETTER DATED 07/05/2013
ADDRESSED TO SH. PHILIP BARA, INQUIRY
OFFICER.
EXT.P5: TRUE COPY OF THE REPLY FILED ON BEHALF OF
THE RESPONDENT TO THE REJOINDER FILED BY THE PETITIONER.
EXT.P6: TRUE COPY OF THE WRITTEN SUBMISSIONS OF THE PETITIONER.
EXT.P7: TRUE COPY OF THE ORDER DATED 11/03/2016 IN O.A.NO.180/00997/2014.
EXT.P8: TRUE EXTRACT OF RULE 3 OF THE CCS (CONDUCT) RULES, 1964.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 TRUE COPY OF THE ORDER OF OA NO.620/2012. EXHIBIT R2 THE TRUE COPY OF THE COMMISSION REPORT. EXHIBIT R3 THE TRUE COPY OF THE ORDER IN OA NO.325/2008 DATED 16/09/2008.
[TRUE COPY]