Central Administrative Tribunal - Kolkata
Sanjib Das vs M/O Defence on 13 January, 2021
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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH. KOLKATA.
O.A. No. 350/ &C>3i. of 2020
In the matter of:
Sanjib Das, son of Late
Harekrishna Das, aged about 49
years, residing at River Queen
Apartment, Flat No. 41, 173,
Nimtala Ghat Road, Shyamnagar.
Post Office-Shyamnagar.
District- North 24 PGS, Pin
Code-743127.
••• Applioant/Petitioner.
-Versus- f
1, Union of India, .service
through the Secretary, Ministry
of Defence, New Delhi-110011.
2. The Director General of
Ordinance Factory & Chairman,
Ordnance Factory Board, 10A, S.K.
Bose Road, Kolkata-700001.
3. The General Manager. Rifle
Factory, Ishapore under Indian
Ordnance Factories, P.O.-
Ishapore-Nawabganj. North 24
PGS-743144.
4. The Works Manager/Admin,
(Now Deputy General
Manager/Admin), Rifle Factory,
Ishapore under Indian Ordnance
Factories. Establishment
jsllf'
laaS&f'- '
7
-2-
Section, P.O.-Ishapore,
Nawabganj, North 24 PGS-743X44.
5. Mr. Pradip Kumar Khan,
Additional General Manager-
cum-Xnquiring Authority, Rifle
Factory, Ishapore under Indian
Ordnance Factories, P.O.-
Ishapore, Nawabganj, North 24
PGS-743144.
6. The Additional General
Manager, Rifle Factory, Ishapore
A
under Indian Ordnance Factories.
P.0.-Ishapore, Nawabganj. North
24 PGS-743144.
••• Respondents.
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4r OA/350/0091/2020 Date of Order: 13.01.2021
M.A. No. 587/2020 :
V |% Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member
§
mm Hon'ble Dr. Nandita Chatterjee, Administrative Member
Sanjib Das Applicant
Vrs.
! Union of India & Ors. Respondents
For the Applicant(s) : Mr. A.Chakraborty & Ms. P.Mondal, Counsel
For the Respondent(s): Mr. B.B.Chatterjee, Counsel
ORDER (ORAL)
Bidisha Banerjee. Member (J):
This O.A. has been preferred by the applicant to seek the following reliefs:
"A) Charge-Memorandum being No. 09(17)/DLC dated 14.09.2017 issued by the respondent No.3 and the enquiry proceeding in connection with the said charge memorandum dated 14.09.2017 are not tenable in the eye of law and as such the same may be quashed.
B) An order do issue directing the respondents to allow the applicant to grant all consequential benefits in his favour at an earliest.
C) Costs and Incidentals.
D) Such further order............"
2. Ld. Counsels were heard.
3. The facts of the case are as under:
A show cause notice, dated 18.01.2017, was issued from the office of the 2 OA/350/0Q9V2O2O ir// respondent No.4 asking the applicant to explain his failure of submission of Wi !// mortgaged property paper and insured property paper in contravention of the rules as he obtained House Building Advance (henceforth referred as HBA) from the Department. T6 which, the applicant replied, vide letter dated 27.01.2017, ffS-% about the inconvenience faced by him in submitting the said papers. He was i i served with a Charge Memorandum No. 09(17)/DLC dated 14.09.2017 for gross misconduct and failure to maintain absolute integrity on the ground of his failure to mortgage his Ready Built Flat to the Govt, of India within 3 months from the date of receipt of Rs. 2,57,000/- as HBA for the purchase of the said flat, for his failure to submit original title deed & property insurance documents of the said flat in violation of the terms of the agreement, for keeping with him the Government money amounting to Rs. 2,57,000/- in an unauthorized manner from 09.11.2000 to 19.04.2005 (the date of registration of the said flat), with a deliberate intention to gainfully utilize the public money.
He duly replied to the said charge sheet denying the same, vide his letter dated 25.10.2017. The applicant even made a detailed representation to respondent No.2 ventilating all his grievance that Charge Meorandum cannot be permitted to sustain in the eye of law since the charges framed for failure to mortgage Ready Built Flat with the Govt, of India and failure to submit the original Title Deed and Property Insurance does not attract any disciplinary action. That, the House Building Rules, in such case, mandates mortgaging of the property and submission of title deeds and the non-compliance of the same only empowers the Department to get the amount of HBA refunded back by the applicant along with interest and not the initiation of any disciplinary proceeding.
3 OA/350/0091/2020 Further that the refunding back of the amount cannot be claimed at a belated stage since all the HBA amount had already been paid to the department along with the accrued interest, for which a no demand certificate had already been issued by the Accounts Department in favour of the applicant. Aggrieved I 7 with the non-action on such representation, this O.A. has been preferred.
4. Vide daily ordqr dated 01.07.2020, the respondents were directed to give a i detailed reply to indicate how the applicant had violated Rule 5(a)(i), 5(a)(3) & 5(a)(5) of Form No.5;of HBA Rules and whether it amounts to misconduct under CCS(Conduct) Rules. In compliance thereof, the respondents would aver as follows:
"(a) The applicant, Shri Sanjib Das, formerly designated as Chargeman Gr.ll(NT/Stores), now working as Junior Works Manager (NG/Stores), Per. No. 817714, had applied for HBA for purchasing a Flat at Ajoy Aptt., Maniktala, Ishapore.
(b) Priot to sanction of HBA, an agreement as per FORM No. 5 [Rules 5(a)(1), 5(a)(3) ad 5(a)(5) of HBA Rules] was executed on 18.08.2000 between the applicant (the borrower) and the President of India (the Government). He also submitted SURETY BOND as per FORM No. 6 (vide Rule 5 of HBA Rules).
(c) The applicant was granted HBA amounting to Rs. 2,57,000/- for purchase of a Ready Built Flat on 24.08.2000 vide Rifle Factory, Ishapore Memo No. 342/3/HB/Estt dated 24.08.2000 clearly mentioning conditions 4 OA/350/0091/2020 to be fulfilled and documents to be submitted after payment of the lst/Final instalment by him.
(i) The Original Title Deed of Land/Flat & Money Receipt from the Proprietor.
(ii) The Regd. Mortgage Deed or Receipt of Registration in original.
(iii) Surety Bond from permanent Govt, servant.
(iv) Copy of the Land Ceiling permission.
(v) A declaration in duplicate stating that he would fulfil certain conditions as mentioned against Point No. 5(i) to 5(iv) therein.
(d) The applicant had received HBA to the tune of Rs. 2,57,000/- in cash on 09.11.2000 for purchase of a Ready Built Flat.
(e) The applicant was requested to mortgage his Ready Built Flat to the Govt, of India and deposit the title Deed of the Flat immediately as required as per terms and conditions under HBA Rules vide RFI letter dated 07.02.2001, followed by reminders dated 13.08.2001 and 18.06.2002.
(f) In reply, he had given written assurance through his letter dated 04.03.2001 stating that the developer/promoter had assured the registration would be made as soon as possible (Appox. One year) and requested to allow him the reasonable time to hand over the Flat Deed after the same is duly registered by the appropriate authority.
5. The relevant rule on "Disbursement and Security" as laid down in Rule 5(a)(i), 5(a)(3) & 5(a)(5) of Form No.5 of HBA Rules placed by the respondents are K'# r '•'**
5 OA/350/0091/2020 / reproduced hereunder (with added emphasis for clarity);
"Rule 5(a)(1) An advance required partly for the purchase of land and partly for constructing a single-storeyed new house or enlarging living accommodation in an existing house shall be paid as follows:
j (I) An amount not exceeding 40 percent of the sanctioned advance ■ will be payable to the applicant for purchasing a developed plot of land on which construction can commence immediately on receipt of the loan, on his executing on agreement in the prescribed form (vide Form No. 5 or 5-A as applicable) for the repayment of the advance. In all cases in which part of the advance is given for the purchase of land, the land must be purchased and the sale deed in respect thereof produced for the inspection of the Head of the Department concerned within two months of the date on which the above amount of 40 percent is drawn or within such further time as the Government/Head of the Department may allow in this behalf, failing which the applicant shall be liable to refund at once, the entire amount to the Government together with interest thereon.
xxx xxx xxx | 5(a)(3) An advance required partly for the purchase of land and j partly for constructing a double-storied new house or enlarging : living accommodation in an existing house shall be paid as follows:
(i) An amount not exceeding 30 percent of the. sanctioned advance will be payable to the applicant for purchasing a developed plot of land on which construction can commence immediately on receipt of the loan, on his executing an agreement in the prescribed form (vide Form No. 5 or 5-A as applicable) for the repayment of the advance. In all cases in which part of the advance is given for the purchase of land, the land must be purchased and the sale deed in respect thereof produced for the inspection of the Head of the Department concerned within two months of the date on which the amount of 30 percent is drawn or within such further time as the Government/Head of the Department may allow in this behalf, failing which the applicant shall be liable to refund, at once, the entire amount to the Government with interest thereon.
xxx xxx xxx 5(a)(5) An advance required for purchasing a ready-built house shall i be paid as follows:
The Head of the Department may sanction the payment of the entire amount required bv. and admissible to, the applicant in one luma sum on the applicant's executing an agreement in the prescribed form (vide Form No.5) for the repayment of the loan. The acquisition of the house must be completed, and the f • >7
6 - ' OA/350/0091/2020 . .>/4 'k'j-.-:-?
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/louse mortgogec/ to Government within 3 months of the drawal fe. Of--the advance, failing which the advance together with the >3 interest thereon, shall be refunded to Government forthwith' unless an extension of this time-limit is granted bv the Head of the Department concerned,
6. The respondents have alluded that the applicant received HBA in one lump i sum on 09.11,2000 after executing an agreement in Form 5 prescribed by 601 incorporating the provisions of Rule 5(a)(i), 5(a)(3) & 5(a)(5) of HBA Rules. As per Rule 5(a)(5), the applicant was to have mortgaged the property within 3 months of the drawal of advance. He did not do so. He had given written assurance through his letter dated 04.03.2001 that the registration would be made within one year. Again, he failed to comply. As a matter of fact, he got the property registered in the office of the Addl. District Sub-Registrar, Barrackpore, North 24- Parganas on 19.|04.2005 in utter disregard to the assurance/commitment made by him vide letter' dated 04.03.2001. In spite of reminders dated 13.08.2001 and 18.06.2002 advising him to mortgage his property and deposit the Title Deed of his Flat, issued to him, he did not mortgage the property as per relevant terms and conditions as set out in Rule 5(a)(i), 5(a)(3) & 5(a)(5) of HBA Rules and agreement executed by him in Form 5 prescribed by Gol, which is a clear violation of the HBA Rules.
That, the applicant in his reply dated 27.01.2017 to the show cause notice dated 18.01.2017 issued by the respondent had admitted his mistake stating further that he would be more alert and careful in all respect relevant to his service. He also submitted photocopy of the Title Deed of the Flat.
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@P 7 OA/350/0091/2020
's
r Respondents would allege that utilization of the advance for a purpose
w other than that for which it is sanctioned shall render the Govt, servant liable to
suitable disciplinary action under the CCS(CCA) Rules, 1965. This provision is there in Rule 6(2)(ii) of HBA Rules.
That, the reply by the applicant was found unsatisfactory as he could not clearly explain why he had kept government money so long and flouted other norms in contravention to laid down provision of HBA Rules. Hence, departmental disciplinary proceedings were initiated against him for deliberately violating the terms of agreement signed by him in terms of Rules 5(a)(i), 5(a)(3) & 5(a)(5) of Form No.5 of HBA Rules, which amounts to gross misconduct, failure to mortgage his property to the Govt, of India, failure to submit Title Deed and Property Insurance document of the said Flat and failure to maintain absolute integrity on his part with a deliberate intent to gainfully utilize the public money.
Applicant j through his reply dated 25.10.2017 denied all the charges whereas in response to show cause notice dated 18.01.2017, he had clearly admitted on 27,01.2017 that he did not mortgage his property, beg pardon for the mistake and declared that he would be more alert and careful in all respect relevant to his service. On denial, a court of inquiry has been constituted on 25.09.2018 as per laid down rules.
That, the applicant has been resorting to dilatory tactics to avoid the proceeding on different pleas viz. technicalities of charge memo, biasness of I.O., allegation against the local management etc. His representations have been disposed of by the Disciplinary Authority vide letter dated 26.12.2019. The 8 OA/350/0091/2020 respondents have alleged that those are the futile attempt on the part of the applicant with an eye to stall the disciplinary proceeding on various pretexts at different point of time.
That, the applicant has taken legal recourse during pendency of disciplinary i I proceedings, which is a quasi judicial in nature where "he has been given ample opportunity for the sake of natural justice to prove his innocence".
7. The records were perused.
(i) The applicant in his letter dated 27.01.2017 had intimated as under:
pyr*'r-' Works Manager/Admin.
Thr:- ^
Sub.:- Reply
Ref.:- Your office letter no. 342/3/HBA/Show cause/E$U./16-17 dtd. 18/01/17 ; R/Sir, On starting, with a great shame, I beg your pardon for my unwilling mistake of non submission of mortgage paper due to out of memory for some family reason (medical reason). Sir; t have taken a loan of H8A for purchasing of a New flat and accordingly, t have utilised that money in proper manner by executing my property (flat) which.^has^lfeady been
- registered at belated stage due to some unforeseen reason at A.D.S.R.O. Barrackpore dated < 1 19/04/2005 bearing registered Deed of Sale No. 2362 and after that my property has also 1 been mutated in the records of North Barrackpore Municipality at Ward No. 4, Holding No. t ' '1496 and accordingly .since accusation of my fiat, I have been paying my municipal tax .(one Xerox copy of title deed & one Xerox copy of update municipal tax receipt for the period of 0ct.20l6 to Dec.2016 is enclosed for your ready reference.) 1 My present address also has been incorporated in my service book against which t have ,.-.taken a loan and my AOHAR CARD, VOTER CARD & RATION CARD also have'been issued by •'.the competent authority In support' of my residence. (One Xerox copy.of ADHAR CARD;
VOTER CARD & RATION CARD Is enclosed herewith for your ready reference.) It is also ensured that my property has not been re-mortgaged for any other purpose, i have sincerely maintained the all rules of HBA only except preparation of documentation for mortgaging my property and at the time of execution of my property, I had a tremendous financial hard ship for which extra financial burden for insurance of my property could not be possible to carried out and In this connection it is also confirmed that my property is in well condition till date.
However, if you want to take my mortgage paper right now then i can proceed for the same and original copy of title Deed may also be submitted as and when required basis. Honestly. I am intimating you that being a sincere, devoted, dedicated & senior responsible govt, servant, l did not have any intention to avoid submission of mortgage paper & insurance paper and also to violate any CCS Rules.
I do nothave any requirement of "No Demand Certificate" as property riot mortgaged. Sir, once again I am praying your pardon for my unwilling mistake and I solemnly declare that ■ • 1 will be more alert and careful in all respect relevant to my service in near future:
Therefore, I fervently request you to get rid of from the charge and to waive of the deduction money for unwilling mistake. If you will consider me, I shall be grateful to you forever. Sir, {.sincerely believe that you will be kind enough to consider me on sympathetic ground:
Awaiting-for your kind consideration please.
Thanking you in anticipation.
(SANJIB DAS) -
• JWM/ CWO,P. NO.-817714
,.01.^7/01/ 2017
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9 OA/350/0091/2020
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(ii) The provisions in HBA Rules stipulate the following:
I "(77; Utilization of the advance for a purpose other than that for : which it is sanctioned shall render the Government servant liable to ✓ suitable disciplinary action under the CCS (CCA) Rules. 1965 or under . any other rules of service applicable to the Government servant He may also be called upon to refund to Government forthwith, the entire advances drawn by him together with interest accruing thereon in accordance with Rule 6 of these rules.
(Hi) The period for producing the sale deed in respect of the developed plot of land referred to in sub-rules (a)(l)(i) and (a)(3)(i) may be extended by the Head of the Department by a reasonable time after satisfying himself that the applicant has either already paid the cost of the land or is likely to pay it immediately: that the extension of time will enable him to acquire the title, leasehold rights to the land and that he has every intention of building a : house and will be in a position to complete the construction of the house by the 18th month after the date of the drawal of the first ; installment of the advance or In such period by which the time for I the completion of the house is extended under Rule 7(a)(ii)."
(Government of India's Orders)
3. the Heads of the Departments should ensure, in consultation with the appropriate ieaal authority that the mortgage deeds have been duly executed and registered and also obtain the original mortgage deed, duly registered together with the original documents of title to the property, which should be kept in safe custody till the redemption of the mortgage."
8. It is evident from the provisions supra that a disciplinary action is attracted only if the HBA is utilized for a purpose other than for which it is sanctioned, whereas, in the-instant case, the applicant has evidently acquired the property for which HBA was1 taken and has repaid the loan amount with interest. Therefore, i i the disciplinary action under DAR is unwarranted. Further, the Head of the Dept. has the power to extend the time limit to mortgage the acquired property.
Therefore, it is trite, axiomatic and settled law that the respondents can have the right to charge interest or penalise the applicant with interest but no case for initiation of disciplinary proceeding under DAR is made out. Accordingly, the % !( • 10 OA/35070091/2020 ■:-x7 Charge Memo No. 09(17)/DLC dated 14.09.2017 (Annexure-A/2), impugned .^S herein, is quashed with liberty to act in accordance with law. r i In A.L Kalra -vs- Project and Equipment Corporation of India Ltd. [AIR 1984 SCC (L&S) 497 Hon'ble Apex Court noticed as under:
"Charge 1 refers to the drawal of a house building advance and failure to comply with the requisite rules prescribed for house building advance. According to the finding recorded by the inquiry officer, the failure of the appellant to refund the amount of advance to the respondent-corporation within two months of the date of the drawal would be violative of Rule 10 (1) (cj (i) of the House Building ■ Advance Rules and it would constitute misconduct within the meaning of the expression in Rule 4 (1) (Hi) of 1975 Rules. Rule 10 (1) provides that the advance shall be drawn in instalments as prescribed in various sub-clauses. The relevant sub- clause in this ) case is sub-clause (c) which provides that "when advance is required ] partly for purchase of land and partly for constructing a single storeyed new house thereon; (i) not more than 20 per cent of the . sanctioned advance on execution by the applicant employees (sic) an agreement in the requirement form for repayment of the advance. The amount will be payable to the applicant only for purchasing a developed plot of land on which construction can commence immediately and sale deed in respect., thereof be produced for the inspection of CPM/RM within two months of the date on which 20 per cent of the advance is drawn or within such further time as the CPM/RM may allow in this behalf failing which the employee shall be liable to refund at once the entire amount to the Corporation together with interest thereon". A bare reading of the relevant rule will show that it provides for obtaining advance which in this case was taken for purchasing a plot The inquiry officer accepts the evidence of Mr. Chugh that the appellant had negotiated with him for purchase of a plot but some dispute arose ' about some additional expenditure and the negotiations protracted over a period of six months. Now para 1 sub-clause (c) confers on ; CPM/RM power to extend the time for finalising the deal _or_call I upon the employee to refund the entire amount and he is liable to_ pay interest thereon. This is the only consequence of taking advance and failure to keep to the time-schedule."
Hon'ble Court observed that "If the rules for granting the advance themselves provided the consequence of the breach of conditions, it would be idle to go in search of anv other consequence by initiating any disciplinary 11 OA/350/0091/2020 ! action in that behalf unless theA975 Rules specifically incorporate o 1 rule that the breach of House Building Advance Rules would by itself j constitute a misconduct. That is not the case here as will be ; presently pointed out Seeking advance and granting the same under relevant rules, is at best a loan transaction. The transaction may itself provide for repayment and the consequence of failure to repay or to abide by the rules. That has been done in this case. Any attempt to go in search of a possible other consequence of breach of contract itself appears to be arbitrary and even motivated. However, the more serious infirmity in framing this head of charge is that according to the inquiry officer this failure to refund the advance within the time. Frame in which it was sanctioned : constitutes violation of Rule 4(l)(iii).
Let us turn to the charge-sheet drawn up against the appellant. Under the first head of charge it was stated that the : appellant was guilty of misconduct as prescribed in Rule 4(l)(i) and (Hi). Rule 4{l)(i) provides that every employee shall at all Times I maintain absolute integrity. How did the question of integrity arise j passed comprehension. The appellant applied for house building • advance. Inquiry officer says that the appellant had negotiated with Mr. Chugh for purchase of a plot There is not even negative evidence or evidence which may permit an inference that the house building advance was utilised for a purpose other than for which it was granted. Therefore Rule 4(l)(i) is not only not attracted but no attempt was made before us to sustain it. And as far as Rule 4(l)(iii) is concerned, we fail to see how an advance not refunded in time where it was recovered bv withholding the salary of a highly placed officer discloses a conduct unbecoming of a vtiblic servant. ! Therefore, the first head of charge is an eye-wash. It does not constitute a misconduct if it can be said to be one even if it remains unrebutted. The officer has not said one word how the uncontroverted facts constitute a conduct unbecoming of a public . servant, or he failed to maintain absolute integrity.
: According to the inquiry officer, failure either to produce the documents or to refund the amount within a period of one month from the drawaf of the conveyance allowance advance constitutes ! contravention of Rule 10 (1) of the Conveyance Advance Rules. Rule 10 reads as under:
10. (1) Where an employee after taking advance is unable to purchase the vehicle for any reason, he shall refund within one month of drawal of advance the full amount with interest thereon to the Corporation. If he fails to do so, he shall be liable to disciplinary action for misconduct in addition to liability for payment of additional interest in accordance with sub-rule (2).
(2) Where an amount of advance is retained by an employee beyond one month or where the employee fails to produce evidence of purchase, insurance policy or registration book, the 1^ 12 OA/350/0091/202U /'T normal rate of interest under rule 5 will be charged for the first w month and for the period in excess of one month in addition to the normal rate of interest, additional interest at a rate far equivalent to difference between the borrowing rate of the j Corporation and the normal rate chargeable under Rule 5 will ft ! be charged. The additional rate of interest will be compound interest and it will be merged with the principal at monthly intervals for the purpose of calculating interest for subsequent periods.
In this connection, our attention was drawn to Circular dated December 11, 1979 issued by the respondent-corporation which provides that henceforth a penal interest will be levied/charged "on the total drawn amount under the Conveyance Advance Rules in case vouchers or receipts are not produced to the Personnel Division Within the prescribed period, or in case the amount drawn is refunded without utilisation." It thus transpires that drawal of the advance. If not utilised within the prescribed period or if not refunded within the same time, will expose the drawer to a liability : to penal interest. And in this case, it has been so charged.
26. Now if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se , under 1975 Rules the respondent had neither the authority nor the j jurisdiction nor the power to impose any penalty for the alleged , misconduct An administrative authority who purports to act bv its regulation must be held bound by the regulation. "Even if these regulations have no force of law the employment under these corporations is public employment and therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulations." (Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi)"
9. Having noted that the advance was drawn as utilised for the purpose it was drawn, and that in terms of HBA rules, the applicant only made himself liable to pay penal interest, which also stood already realised, we hold initiation of proceedings as unwarranted. In the aforesaid backdrop, the proceeding initiated against the Applicant is quashed with liberty to the respondents to act in accordance with law.
10. The O.A. accordingly stands disposed of. Consequent upon disposal of the «v Si.
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IB OA/350/0091/2020 f
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a O.A., M.A. 587/2020, praying for od interim relief, also stands disposed of. No
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costs.
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(Dr. Nandita'Cnatterjee) (Bidisha Banerjee)
Member (A) Member(J)
RK