Central Administrative Tribunal - Delhi
Shri Devi Singh vs Govt. Of N.C.T. Of Delhi on 20 October, 2010
Central Administrative Tribunal Principal Bench : New Delhi O.A. NO.2236/2009 New Delhi, this the 20th day of October, 2010 CORAM: Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Devi Singh, aged 26 years, S/o Shri Hawa Singh R/o H.No.264, Bazitpur Thakaran, P.O.Nangal Thakaran, Delhi 110 049 Applicant (By Advocate: Shri S.C. Luthra) versus 1. Govt. of N.C.T. of Delhi, through Principal Secretary (Home), Delhi Secretariat, New Delhi 110 002 2. The Director General of Prisons, Prisons Headquarters, Near Lajwanti Garden Chowk, Janakpuri, New Delhi 110 064 Respondents (By Advocate: Ms Jyoti Singh) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a Warder in the Jail Department under the GNCTD, is challenging the penalty of reduction in pay for three years, along with treating him as entitled only to subsistence allowance during the period of deemed suspension and the period between his dismissal from service to his joining being treated as dies-non. This punishment has been imposed by the Appellate Authority, modifying the original penalty of dismissal from service ordered by the Disciplinary Authority, on the charge of the applicant having been caught with the smuggling of a prohibited article i.e. tobacco inside the Jail.
This is the second round of litigation. The initial order of the Respondents dated 2.8.2006 and the Appellate Order dated 15.3.2007 terminating his services under rule 5 of the CCS (Temporary Service) Rules, 1965, had been set aside vide the Tribunals order dated 30.11.2007 in the OA 874/2007, on the ground of the respondents not having followed the requisite procedures regarding departmental enquiry. However, at the same time, liberty had been given to the respondents to initiate departmental enquiry against the applicant at the earliest and finish the same within a reasonable period. It had also been directed that the applicant may be put under deemed suspension and the intervening period was to be decided after the conclusion of the enquiry. In pursuance of the directions of the Tribunal, the services of the applicant were reinstated w.e.f. 5.2.2008. Further, after initiating major penalty proceedings under the CCS (CCA) Rule 14 and conducting a regular enquiry, the aforesaid impugned orders have been passed. The OA seeks the following reliefs:-
to quash the order dated 26.9.2008 passed by the D.A. and the respondent no.2 awarding the penalty of dismissal (Annexure A/1);
to quash the order dated 2.2.2009 passed by the Appellate Authority and the Respondent No.1 modifying the penalty of dismissal to that of reduction in pay as specified in the order (Annexure A/2);
to quash the order dated 12.3.2009 passed by the Respondent No.2 treating the entitlement during the period of deemed suspension i.e. 8.2.2006 to 4.2.2008 as only to subsistence allowance already drawn and further the period between dismissal from service to the joining i.e. 26.9.2008 to 13.3.2009 to be treated as dies-non.
2. On behalf of the applicant, the learned counsel, Shri S.C. Luthra and for the respondents, the learned counsel Ms Jyoti Singh would appear before us. We have carefully considered the respective submissions of the learned counsels as well as the material on record.
3. The brief factual matrix of the case is as follows:-
3.1 The applicant had joined the Jail Department under the Govt. of Delhi as a Warder on 9.2.2005 on probation for a period of two years. After the setting aside of the orders regarding termination of his services by the Tribunal and subsequent to his reinstatement he was served a charge memorandum dated 24.3.2008 initiating a major penalty proceeding under rule 14 of the CCS (CCA) Rules, 1965 on the following article of charge:-
STATEMENT OF ARTICLE OF CHARGE FRAMED GAINST SH. DEVI SINGH, WARDER-1164 While functioning as Warder in Central Jail No.2, Tihar, Sh. Devi Singh, Warder-1164, reported at Deodhi for his duty on the intervening night of 18/19.07.06 at around 22.00 hrs. in the shift of 22.00 hrs. to 06.00 hrs. During the mandatory search by the TSP staff, loose tobacco approximately 50 gram was recovered from his shoes.
Thus, Sh. Devi Singh, Warder-1164 failed to maintain absolute integrity and exhibited conduct unbecoming of a Government servant, violating thereby the provisions of Rule 3 of CCS (Conduct) Rules, 1964. The Statement of Imputation further stated about the TSP (Tamil Nadu State Police) having made the seizure memo no.1164237 dated 18.7.2006 for the said recovery of tobacco and handing over the same to the Night Duty Officer, Shri Mangla Singh, Assistant Superintendent. As the relied upon documents (RUDs) the statements of the concerned TSPs as well as a copy of the aforesaid seizure memo were listed. Among the prosecution witnesses, besides the two TSP officials, the concerned Assistant Superintendent, Shri Mangla Singh, the Night Duty Officer, had been mentioned.
3.2 After a regular enquiry, in which the delinquent had participated, the charges were held as proved vide the inquiry report dated 10.7.2008. Considering the representation by the C.O. against this report and after a personal hearing, the DA vide its Order dated 26.9.2008, considering the gravity of the misconduct, imposed the penalty of dismissal as a deterrent punishment. The Appellate Authority while dealing with the appeal against this punishment and again hearing the affected official in person, by the order dated 9.2.2009 agreed with the fact of the charges having been proved as well as the gravity of the misconduct. However, considering the penalty of dismissal as too harsh, and taking a lenient view the same was modified to the penalty of reduction to the initial stage of pay i.e. Rs.3050/- for a period of three years in the time scale of pay of Rs.3050-75-4500 (pre-revised) with effect from the date when he joined the service after reinstatement by the DA. It was also ordered that during the period of reduction no increment was to be earned and on expiry of the same, the reduction was to have the effect of postponing the future increments of pay.
The aforesaid order was followed by an order dated 12.3.2009 passed by the DA, which in the light of the directions issued by the Appellate Authority, inter alia, stated regarding the deemed period of suspension between 2.8.2006 to 5.2.2008 to be treated as justified with further direction about the official being entitled only to the subsistence allowance. The period between dismissal from service to joining was to be treated as dies-non for all purposes.
4. On behalf of the applicant, there has been an attempt to project the impugned findings in the inquiry report as well as the subsequent orders of the DA and the AA as suffering from several flaws vitiating the entire action. The main thrust of the learned counsel, Shri Luthra would be to highlight alleged infirmities such as non-production of the report of the Duty Officer, Shri Mangla Singh; non-preparation of a search memo; the sealing of the seized tobacco on 19.7.2006 after a gap of 19 hours and non-obtaining of the signatures of either the frisking party or the delinquent. An element of doubt about the authenticity of the RUDs would also be sought to be created by the leaned counsel with his argument about neither of the Police officials of the frisking party (members of the Tamil Nadu State Police specially assigned for this job) knowing English and the authenticity of the said translation in English. The main plank of defence would be about the entire case being totally a false and fabricated one being manufactured at the instance of the Inspector, one Shri Ramaswamy and the so-called search as also the attendant necessary formalities associated with it being reduced to a mere mockery. Faulting the orders of the DA as well as the AA, the same being bald, non-speaking, laconic and not considering the contentions of the applicant would also be argued by the learned counsel.
5. On behalf of the respondents, however, the present action has been fully justified after due observance of prescribed rules and procedures and affording full opportunity for defence to the delinquent. It would also be submitted on their behalf that the findings of the Inquiry Officer are well reasoned, as are the orders of the DA and the AA. The modification in the quantum of the penalty at the Appellate level, reducing the rigor of dismissal to that in mere reduction in the scale of pay would also be submitted by the respondents as a testimony of their fairness and due application of mind. It would be the submission of the respondents that imposition of penalty after a proper disciplinary proceeding in accordance with rules was well within their legitimate domain and there was no justification for a judicial intervention by the Tribunal in the orders passed.
6.1 We have carefully gone through the inquiry report as well as the other related documents attached along with it. What we find from the report are clear evidences of a fair opportunity having been provided to the delinquent for submission of his defence version. This was a case in which the applicant had been defended by his defence assistant and the photo copies of all the documents requested for defence brief had been provided. Besides, a written defence brief, the examination of the delinquent along with production of defence witnesses (4 in number) and cross-examination of the prosecution witnesses on behalf of the CO had been allowed. Further, the IO had also conducted a general examination of the charged official as envisaged under rule 14 (18) of the CCS (CCA) Rules.
As was ruled by the Honble Apex Court in B.C. Chaturvedi vs Union of India & Ors {AIR 1996 SC 484}:
Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Further, the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the Court.
The Inquiry Report in the instant case does satisfy the aforesaid criteria of fairness in the manner of decision making.
6.2 A perusal of the analysis of the evidence as well as the findings and the conclusion clearly point out the IO as having duly considered the defence contentions sought to establish their case. In a critical appraisal of the defence brief, the I.R. states the following:-
DEFENCE BRIEF (at 61/c to 48/c) The Charged Official has submitted his Defence Brief on 30.06.2008. The findings given by the Charged Official are whimsical and without any facts. Sh. Mangla Singh, A.S. was present on duty in the intervening night of 18/19.07.2006 and the recovered prohibited item was handed over to him by TSP. The same was sealed having signature dated 18.07.2006 of Sh. Mangla Singh, A.S. and countersigned by Sh. G.S. Dhodi, D.S.-I & SCJ-2 on 19.07.2006. So far as tampering with the seized item is concerned, the same is quite incredible since there is nothing on record to suggest that there was any cogent reason for the same. Further, there was no instance of enmity or ill-will between Sh.Mangla Singh, A.S. & Sh. Devi Singh,W-1164/Charged Official to consider this submission. The depositions of 02 TSP witnesses are also unshaken and they have substantially corroborated the facts in regard to the recovery of prohibited items from the Charged Official. Further, the evidence of 03 defence witnesses are not worth reliance since their claims are merely afterthought which is clear from the fact that the alleged set of facts that the prohibited item was not recovered during initial search of the Charged Official and it was planted on him at belated stage were not disputed during examination of listed witnesses at any point of time. While holding the charges as proved, the IO has listed several facts proved during the inquiry from the testimony of the listed witness, defence witnesses, the facts confirmed from the listed documents on record as well as the additional documents supplied during the course of the inquiry. The IO has also taken care to deal with the defence contentions regarding the alleged smuggled tobacco having been shown planted at a belated stage at the behest of TSP officials. However, these have been rejected on the grounds that the charged official had failed to confront this issue with the listed witnesses during their examination. Further, absence of any reasons, even as per the delinquent, for any enmity or jealousy on the part of the TSP/duty officials has also weighed with the IO. Even the version of the defence witnesses has not been found to be credit worthy considering that one of them had disclaimed any awareness regarding the search in question and the other three, while deposing against any such recovery had still not been able to give a satisfactory reply as to why they had not reported to the superior officials against an allegedly wrong case of recovery of a smuggled good being framed against the delinquent. Concluding, the I.O. had found that from every point of view the charged official had taken various pleas to defend himself as afterthoughts.
The Honble Apex Court in North West Karnataka Road Transport Corporation vs H.H. Pujar {(2009) SCC (L&S) 251} had elaborated the touchstone of evidence to be applied in disciplinary inquires.
The simple point is whether there was some evidence or there was no evidence. Not in the sense of the technical rules governing regular court proceedings but in a fair, common sense way as men of understanding and worldly wisdom will accept. . All materials which are logically probative for a prudent mind, and having a reasonable nexus and credibility were held to be permissible.
Again in M.V. Bijilani vs Union of India & Ors {AISLJ X-2006 (3) 184}, contradictions and wrong inferences in the inquiry report, besides non-consideration of evidence favourable to the delinquent were held as serious factors vitiating an inquiry report.
Given the above yardsticks too, the inquiry report in the present case comes out clean. This was a case in which all the prosecution witnesses had clearly deposed against the charged official and supported the fact of the alleged prohibited item being smuggled by him under his shoes. We find ourselves unable to accept the contentions in the OA of the charges having been proved by the IO on surmises.
6.3 The defence plea regarding various technical flaws in the manner of the charges being proved by the prosecution do not help the case either. It is trite in law that in disciplinary enquires where the standard of proof is preponderance of probability as distinguished from proof beyond doubt in criminal cases; the strict rules of Evidence Act cannot be evoked. In its recent decision in U.P. State Transport Corporation vs Suresh Chand Sharma {(2010) 2 SCC (L&S) 239} the apex court reiterated the settled law as propounded in State of Haryana vs Rattan Singh {(1977) 2 SCC (L&S) 298}:
In a domestic inquiry complicated principles and procedures in the Code of Civil Procedure Code and the Evidence Act do not apply. The delinquent employee is only entitled to be informed of the charges and to defend himself against the same.
With due respect to the learned counsel for the applicant, we find the multiple averments raised in the nature of an endeavour to bring by the back door these very complicated principles and procedures, which as per the Honble Apex Court, have no scope in the disciplinary proceedings.
6.4 Even on the point of the orders of the DA and the AA not being reasoned and non-speaking, we do not find a merit in the contentions of the applicant.
6.5 To conclude, after a detailed scrutiny as above, we do not find any justification to interfere with the impugned orders of the Disciplinary Authority or the Appellate Authority regarding the penalty imposed in this case.
7.1 As regards the reliefs claimed under para 8.2 concerning the entitlement for only subsistence allowance during the period of deemed suspension (2.8.2006 to 5.2.2008) and treating the period between his dismissal i.e. 26.9.2008 and joining on 13.2.2009 being treated as dies-non; the OA has contended the same to be in violation of the provisions under the Fundamental Rules and, therefore, deserving to be quashed.
7.2 As regards the treatment of the period of deemed suspension, para 5.26 avers regarding the previous termination being set aside on merit and as such as per the mandate of FR 54-A(3), the applicant being entitled for the intervening period to be as on duty for all purposes. Again, with regard to the decision of dies-non also, invoking the provisions of FR 54-B (5) and the principles of natural justice, it has been contended that such an order visiting an employee with civil consequences could not be passed without putting him to notice in the first instance.
7.3 We note that the while setting aside the initial order of termination vide its Order dated 30.11.2007 in the OA 874/2007, the Tribunal had only done it on the limited ground of non-observance of the procedures of Departmental Inquires under Article 311. Again while giving liberty to the respondents to initiate departmental inquiry, the Tribunal had thought it appropriate to give a limited direction to the respondents to put the applicant under deemed suspension, in the case of initiation of a departmental inquiry. As regards the treatment of the intervening period, the same was to be decided after the conclusion of the inquiry.
In this case, the penalty of dismissal imposed by the DA subsequent to the inquiry was set aside by the AA and substituted by a lesser punishment of reduction in pay. Even the order of the Appellate Authority had not given any directions with regard to these two aspects of treatment of the period of deemed suspension or of the intervening period between the date of dismissal and that of his joining after reinstatement.
What we note is that the DA subsequent to the order dated 9.2.2009 of the AA, passed the impugned order dated 12.3.2009 taking the decision on these two aspects also without any further show cause notice to the applicant.
7.4 In the matter of treating the period of deemed suspension, though the applicant has relied upon the provisions of FR 54-A(3); however, the same would not be applicable here. These provisions pertain to a case where the dismissal has been set aside by the Court on merit of the case; which as stated above, was not the case in the instant OA. On the other hand, the present case falls within the provisions of FR 54-A (2)(i) which states about the dismissal being set aside by a Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution. In such cases, the rules provide regarding the competent authority determining, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, within a stipulated period, the treatment regarding entitlement of such period.
7.5 Similarly, the matter of dies-non also, the FR 54-B, sub-rule (5) provides about the competent authority determining the treatment of period only after giving a notice to the concerned employee. As these conditions have not been fulfilled, the impugned order dated 12.9.2009 is not found to be in consonance with law to the extent of the directions in Paras 3 and 4 thereof.
8. To conclude, the OA is partly allowed. We do not find any basis for interfering with the findings of the I.O. or the modified penalty imposed by the AA. However, the decision with regard to treating the period of deemed suspension and the intervening period between dismissal and reinstatement can only be taken after giving a due opportunity to the concerned official to make his submission against the proposed action. The impugned order dated 12.3.3009 is accordingly quashed to the limited extent of the directions as contained in paras 3 and 4 thereof. The respondents are directed to pass fresh orders after giving due opportunity to the applicant in accordance with the provisions of the FR in this regard. This may be done within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
/pkr/