Central Administrative Tribunal - Delhi
Dr. S. Mokkapati vs Director General on 13 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 4577/2011 Reserved on : 11.04.2012 Pronounced on : 13.04.2012 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Dr. S. Mokkapati, Ex-Scientist-F, ICMR R/o Quarter No.27, Type-V, Lodhi Road Opposite NBCC Tower, New Delhi-110003. Applicant (By Advocate : Shri Sudheer Kulshreshtha) Versus 1. Director General, Indian Council of Medical Research, V. Ramalingaswamy Bhawan, Ansari Nagar, New Delhi-110029. 2. Union of India Through Health Secretary, Department of Health Research, Ministry of Health & Family Welfare, 156-A, Nirman Bhawan, New Delhi-110108. 3. Sr. Deputy Director General (A), Indian Council of Medical Research, V. Ramalingaswamy Bhawan, Ansari Nagar, Post Box 4911, New Delhi-110029. ..Respondents (By Advocate: Shri V.K. Rao with Shri Ayushya Kumar) ORDER
Mrs. Meera Chhibber, Member (J) Applicant has challenged memorandum dated 29.07.2011 (page 26) whereby charge sheet has been issued to the applicant and order dated 31.10.2011 (page 32) whereby Inquiry Officer Prof. R.N. Salhan was appointed to enquire into the charges framed against the applicant.
2. It is stated by the counsel for the applicant that applicant has challenged these orders on the ground that his leave was already sanctioned on 03.09.2010 (page 67) and he was given No Objection on 26.08.2010 (page 42). In his application, he had clearly mentioned that he wanted to go to Spain (page 38). He had already applied for leave on 10.09.2011 (page 47) which was signed by the Administrative Officer, therefore, the charge levelled against him is absolutely wrong and illegal.
3. Learned counsel for the applicant further submitted that the charge sheet was issued to the applicant on the last date when he was being given the farewell as he was due to retire on 31.07.2011 but 30th and 31st were Saturday and Sunday. The said date was 29th of July, 2011. The charge sheet was only to harass the applicant with ulterior motive, even though no financial loss was caused to the department. The charge sheet could not have been issued on the last date when applicant was due to retire. Counsel for the applicant has placed reliance on the judgment in the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others reported in 1999 (3) SCC 666.
4. Respondents have opposed this OA on the ground that applicant has already taken part in the inquiry proceedings. The OA is premature because the charges have yet to be framed by the Inquiry Officer. The Tribunal cannot decide the correctness of the charge sheet. It is, therefore, liable to be dismissed on this ground alone.
5. On merits, they have stated that applicant is trying to mislead the Tribunal by relying upon the conditional approval granted by the DG, ICMR of his previous visit, as an approval for the current foreign tour to Spain. They have stated that the charges pertain to September, 2010 and the charge sheet has been issued in July, 2011. The time was taken primarily to make the relevant inquiries about the visit of the applicant unauthorisedly by taking Earned Leave without stating the purpose and where he was going despite the fact that such a visit requires the approval of the Competent Authority.
6. They have further stated that the proposal for seeking clearance, which was sent to the Ministry of External Affairs, does not bear the signatures of Shri C.S. Gupta, Ex-Administrative Officer. It thus seems that the proposal was not signed by the authorized person because Shri Gupta has clarified the position by stating that the proposal was not sent by him. Moreover, the signatures also does not match with the signatures on the alleged proposal letter dated 25.08.2010 which shows there is some manipulation. Even otherwise, under the Conduct Rules which are followed by ICMR, the Government servant is required to take prior permission/approval for visiting abroad. Instructions have also been issued in this regard making it clear that if any employee is found visiting abroad without prior approval of the Council, necessary action would be taken against him.
7. In the instant case, though applicant had applied for participation of 27th ISO TC157 meeting on Non-systematic Contraceptive and STI Barrier Prophylactic at Madrid, Spain, to be held during 13th to 17th September, 2010 on 28.07.2010. He himself initiated the file and it was processed by the concerned Division and placed before the competent authority for approval i.e. Director General, Indian Council of Medical Research (ICMR) who had asked certain queries from the concerned Division. It is thus wrong to state that any conditional approval was granted by the Competent Authority. Moreover, mere submission of the application does not mean that the leave has been granted. The applicant was not granted any prior approval to visit abroad by the Competent Authority. Moreover, in his leave application dated 10.09.2010, applicant had only stated that he may be granted leave from 13.09.2010 to 17.09.2010 with permission to leave the station. The purpose for leave was not even mentioned in the application nor the station or place, where he wanted to go, was mentioned. Since it had come to the notice of the respondents that applicant had travelled abroad without the necessary approval, applicant has rightly been issued the charge sheet. Since applicant has already participated in the inquiry, the OA may be dismissed as premature so that the charge sheet may be taken to a logical conclusion.
8. Applicant has reiterated the stand taken by him in the original application.
9. We have heard both the counsel and perused the pleadings also.
10. Admittedly applicant was due to retire on 31.07.2011, which is evident from page 49, which for ready reference reads as under:
Dr. Sitaramaiah Mokkapati, Scientist F will be retiring from the service of the Council on attaining the age of superannuation on the afternoon of 31st July, 2011. He will be granted provisional Pension w.e.f. 1.8.2011 on the basis of qualifying service as the departmental proceedings are pending against him.
11. On 29.07.2011 itself the charge sheet was issued to the applicant with the following allegations (page 28):
That the said Dr. S. Mokkapati while functioning as Scientist-F at ICMR Hqrs., New Delhi left the country without permission from the Competent Authority from 13th to 17th September, 2010.
Dr. S. Mokkapati, Scientist-F had applied for Participation of 27th ISO TC 157 Meeting on Non-systematic contraceptives and STI Barrier Prophylactics to be held at Madrid, Spain from 13th to 17th September, 2010. Even though, he was not given permission by the ICMR, he left the country. In his leave application dated 10.09.2010, he concealed the information that he was going to Spain from 13th to 17th September, 2010. As permission from Ministry of External Affairs and Ministry of Home Affairs is required for such purpose; these norms also have been violated.
By these acts of misconduct and misdeeds, Dr. S. Mokkapati had also violated the provisions of CCS (Conduct) Rules, 1964 and CCS (CCA) Rules, 1965 unbecoming of a Govt. servant.
12. Counsel for the applicant had basically taken two grounds to challenge the charge sheet. First that charge sheet could not have been issued on the last date of his retirement and he relied on the judgment referred to above to buttress this contention. However, perusal of the said judgment shows that in the said case charge sheet was served on the appellant on 22.07.1992. He retired on 30.06.1995 but the inquiry could not be completed. There is a specific finding recorded by the Honble Supreme Court in that case that no specific provision existed in the Orissa Financial State Corporation Staff Regulations, 1975 for continuance of departmental enquiry after superannuation. It was thus held that once appellant had retired, there was no authority with the department to continue the departmental enquiry and the enquiry had lapsed with his retirement. In view of above, appellant therein was held entitled to the full retiral benefits. This judgment, according to us, does not advance the case of the applicant at all because applicant has been issued the charge sheet under Rule 14 of the CCS (CCA) Rules. It has not been disputed by him that he is governed by the CCS (CCA) Rules and CCS (Pension) Rules.
13. There is no bar under CCS (CCA) Rules or CCS (Pension) Rules that charge sheet cannot be issued to a person on the last date of his retirement. On the contrary, under Rule 9 (2)(b) of the CCS (Pension) Rules, it is absolutely clear that departmental proceedings can be instituted even after retirement but only after taking sanction of the President under Rule 9 (2) it is clear that if DE is instituted while the Government servant was in service, it shall be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President, meaning thereby that the DE can be continued after retirement also. Rule 9 (6)(a) further explained that departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date. In the instant case, applicant was served with the charge sheet on 29.7.2011 when applicant was still in service. In view of above rule position, since applicant is governed by CCS (Pension) Rules, contention of the counsel for the applicant that charge sheet could not have been issued on the last date of his retirement is not sustainable in law. The same is accordingly rejected.
14. Counsel for the applicant next contended that the applicant was already given No objection by the Ministry of External Affairs by referring to page 42 whereas counsel for the respondents informed us that the said clearance was given by the Ministry of External Affairs on the basis of a letter which is stated to have been written by Ex-Administrative Officer, Shri C.S. Gupta on 25.08.2010, as annexed at page 89, but when the said Shri C.S. Gupta was asked to explain whether he had written any such letter, he had given the reply in writing on 18.01.2012 that he had not sent any such letter on 25.08.2010 relating to foreign visit of Dr. S. Mokkapati from 13th to 17th September, 2010 to Madrid, Spain addressed to the Secretary to the Govt. of India, Ministry of External Affairs. He had also specifically stated that the signatures on the letter are not his signatures (page 107).
15. In view of above, the allegations have become very contentious. They have also stated that the applicant while applying for leave had not even given the reason nor had mentioned the station where he wanted to go. On the contrary, he had simply mentioned as follows:
To The Director General, I.C.M.R., New Delhi-110029.
Through : Proper channel.
Respectable Sir, Please sanction me five days earned leave from 13th-17th September, 2010 and permit me to leave the station.
Thanking you, Yours faithfully, (Sitaramaniah Mokkapati) Sc-F, RHN 10/9/2010.
16. Similarly, when he joined the duties on 20.09.2010, he simply informed the Director General that after availing 5 days leave, he had joined duties on 20.09.2010. Even in this letter, he had not mentioned how he had availed the leave. All these material would have to be looked into by the Inquiry Officer. We cannot decide the correctness of allegation as that is within the domain of Inquiry Officer at the first instance.
17. Respondents have further stated that the ICMR has already issued instructions dated 30.06.2009 for seeking prior permission to visit abroad which reads as under:
To The Directors/Officers-in-Charge of all permanent Institute/Centre of the Council.
Subject: Prior permission to visit abroad.
Sir/Madam, It is to bring to your kind attention that as per Govt. of India CCS Conduct Rules all the employees of the Centre/Institute are required to take prior approval of the Competent Authority of the Council to visit abroad. While employees get prior permission for official visits, all are hereby informed that even if any employee of the Centre/Institute would like to visit abroad on personal visit, he/she should take prior approval of the Council.
It may be noted that if any employee is found visiting abroad without prior approval of the Council, necessary action will be taken against him/her as per CCS Conduct Rules.
This issued with the approval of the Competent Authority.
In these instructions, it was made clear that if any employee is found visiting abroad without prior approval of the Council, necessary action will be taken against him/her as per CCS Conduct Rules.
18. In view of above, if respondents felt that the applicant had visited abroad without taking prior permission/approval of the Council, they have a right to enquire into the matter. The purpose to issue charge sheet to an employee is to enable him to defend himself before the Inquiry Officer by placing all those documents which he wishes to rely upon, therefore, whatever defence applicant has, he should place it before the Inquiry Officer instead of rushing to the court.
19. The law is well settled that the Courts or Tribunals cannot interfere at the stage of charge sheet or to look into the correctness of the charges levelled against an employee because it is for the Inquiry Officer to enquire into the correctness of the charges after examining the evidence which would come on record.
20. At this juncture, it would be relevant to refer to the judgment of Honble Supreme Court in the case of Union of India and others vs Upendra Singh reported in 1994 (3) SCC 357, it was held as under:
In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into.
21. In the case of Union of India and Another vs Ashok Kacker reported in 1995 Supp (1) SCC 180, it was held as under:
The respondent has full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf. This was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet. The appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
22. Similarly in State of Punjab and Others Vs. Ajit Singh reported in 1997 (11) SCC 368, it was held as under:-
The High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.
23. The law is thus well settled that courts should not interfere at the stage of charge sheet. Even otherwise, contentious issues have been raised by the respondents disputing the very letters, which have been referred and relied upon by the applicant, therefore, we cannot entertain this OA at this stage as it is premature. The OA is accordingly dismissed as premature with liberty to the applicant to defend himself before the Inquiry Officer. Of course, if applicant is aggrieved by the official orders to be passed by the respondents ultimately, it would be open to him to challenge the same by filing an original application. We would like to clarify that we have not adjudicated the contentions of either side on merits of the disciplinary case. No order as to costs.
(Dr. Veena Chhotray) (Mrs. Meera Chhibber)
Member (A) Member (J)
/jyoti/