Central Administrative Tribunal - Delhi
Dr. M.R.Diwan vs Union Of India Through Secretary on 31 October, 2013
Central Administrative Tribunal Principal Bench OA No. 3660/2012 Reserved on: 22.07.2013 Pronounced on:31.10.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Dr. M.R.Diwan, IFS (Retd), Adv. S/o late Sh. D.R. Diwan, Luv-703,Aggrasen Awas, I.P. Extn., Patpar Ganj, Delhi 110 092. Applicant (Applicant in person) Versus 1. Union of India through Secretary, Ministry of Environment & Forests, Paryavaran Bhawan, CGO Complex, Lodi Road, New Delhi 110 003. 2. The Joint Cadre Authority for AGNUT Cadre from 03.04.1989 Thorough the Additional Secretary, Incharge (I/C) UTS Division, Ministry of Home Affairs, Central Secretariat, North Block, New Delhi 110 001. 3. The Joint Cadre Authority for AGNUT Cadre from 25.04.1995 Thorough the Director General (Forests) Ministry of Environment & Forests, Paryavaran Bhawan, CGO Complex, Lodi Road, New Delhi 110 003. 4. The Secretary Forests/PCCF, Department of Environment & Forests, Van Sadan, Haddo, Port Blair, Andaman & Nicobar Islands 744102 (Respondent No.4 to be served through Resident Commissioner posted at Andaman & Nicobar Bhawan, 12-Chanakya Puri, New Delhi. Respondents (By Advocate: Shri R.K. Sharma) O R D E R Honble Dr. B.K. Sinha, Member (A):
The applicant has filed the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 being aggrieved with the order of the respondent organization dated 25.09.2012 awarding the punishment of forfeiture of full pension and entire gratuity on permanent basis upon the applicant.
2. The applicant has prayed for the following reliefs:-
Call for the entire records of the case;
Quash and set aside the office impugned charge Memo dated 15.11.1993 and impugned penalty order dated 25.09.2012 with all its consequences;
Declare that the action of the respondents in issuing the impugned charge memo and penalty order as illegal, arbitrary, malafide unjustified, without jurisdiction and untenable in law with all its consequences;
Direct the respondents to restore all the benefits to the applicant including the release of the Gratuity and Proper calculation of pension as stated in due & drawn statement (Annexure A-39 herein) after releasing the seniority above all those who were promoted to STS of IFS (On 26.7.1989 or 1.8.1978) after 1.3.1978 i.e. the date of promotion of the applicant and all due promotions upto the next higher grades i.e. S.G., CF, CCF, Add PCCF & PCCF w.e.f. 1.1.1982, 04.12.1985, 16.06.1992, 06.11.2002 & 4.2.2004 respectively as if no such aforementioned charge memo or penalty orders have ever been issued.
Allow costs of all the applications, present and all others relating to OR relying of the impugned charge memo dated 15.11.1993, since 10th Feb., 1992 i.e. the issuances of the order of suspension.
Direct the respondents to pay all the due amount along with interest @ 18% p.a. of salary dues, leave encashment, TTE bills, LTC, Medical reimbursement after releasing all due promotions wef the dates given to his junior officers (promoted to IFS from SFS to IFS on or after 1.3.1978 within a reasonable period as fixed by the Honble Tribunal.
Pass any other order or orders, which this Honble Tribunal may deem just & equitable in the facts and circumstances of the case to compensate the losses suffered not only by the applicant but also by his family members especially by his only daughter as stated in above paras.
3. The case of the applicant, briefly stated, is that he joined the Indian Forest Service (IFS) as Probationer in the year 1974 and since then, it appears, he has spent his entire service career and the period thereafter contesting cases and making rounds of the Courts as a full time occupation. However, we do not wish to overburden this order by narrating his entire tale of woes and confine ourselves only to the essential facts for the sake of brevity.
4. The Respondent No.1 initiated a departmental proceeding under Rule 8(1) of the All India Services (Disciplinary & Appeal) Rules, 1969 [hereinafter referred to as AIS(D&A) Rules, 1969] by issuing a Charge Memo dated 15.11.1993. This Charge Memo was issued, as per the applicant, without having issued a prior show cause notice and given to him and given an opportunity to have his representation. On 03.07.2001, the applicant was dismissed from service. He challenged this order before this Bench of the Tribunal by filing OA No. 181/2002 on the ground that being a Member of the AGMUT Cadre, he could not have been dismissed by anyone other than the Joint Cadre Authority constituted vide the Notification dated 3.4.1989 and that the proceedings had been conducted ex parte without having been informed to him the date of hearing and providing him the documents, which had been relied upon, the recommendation of the UPSC, and the advice of the CVC prior to the date of the order. This Tribunal, vide its order dated 29.05.2003, quashed the order of dismissal and remanded the case to the department for initiating the proceedings from the stage the ex parte proceedings were conducted on 06/07.02.1996. The Tribunal relying upon the single ground that while the Disciplinary Authority had taken into consideration the recommendations of the UPSC and the advice tendered by the CVC before passing the order without having provided the applicant copies of the same with reasonable opportunity to him to defend himself or to offer his comments over this, found that this was fatal to the proceeding and, hence, the order.
5. Subsequent to this order, on 21.09.2003, the applicant was placed under deemed suspension w.e.f. 03.07.2002 under Rule 6(3) of AIS(D&A) Rules, 1969. On 27.10.2003, the applicant protested against the appointment of an officer junior to him as enquiry officer, non-release of due promotions as given to his juniors and to revoke his deemed suspension. On 31.03.2004, the order of deemed suspension was revoked and he joined his duty in the following month on 12.04.2004 as OSD to PCCF at Port Blair. The applicant, in the meantime, superannuated from service w.e.f. 30.4.2004.
6. On 29.05.2007, the applicant filed OA No.1043/2007 challenging the validity of the order dated 24.10.2003 appointing an officer junior to him from the 1975 batch of the IFS who had earlier served under him, as the enquiry officer under Rule 8.2 of the AIS (D&A) Rules, 1969, which was disposed of vide order dated 13.12.2007 with a directive to the respondents to afford an opportunity to the applicant to represent against the enquiry report. Thereafter, the respondents were to pass a final order within two months from the date of receipt of the order. A copy of the enquiry report was served upon the applicant vide the letter dated 16.2.2008 which he found not clear and the time provided to furnish the reply short. He, hence, filed an interim reply on 18.2.2008 praying for the documents requested and in the case the respondents did not find it satisfactory, he would be filing a detailed reply. No documents were provided, as requested, as a result of which, the applicant could not file any reply. Instead, the applicant alleges, the order was passed after a lapse of two years and four months. The applicant further alleges that a copy of the order dated 8.4.2010 was filed before this Tribunal on 20.4.2010 without accompanying any affidavit or Vakalatnama whereby the penalty of withholding the entire Gratuity and full Pension had been imposed upon him.
7. On 04.05.2010, the applicant applied under Right to Information Act, 2005 for inspection of all files relating to him in the Vigilance Cell which was allowed to him after inordinate delay and that too partially. On 23.5.2010, the applicant filed yet another OA bearing No.1826 of 2010 challenging the validity of the impugned order dated 8.4.2010 on the ground that it had been conducted de novo U/R 8(2) of the AIS (D&A) Rules. 1969 by appointing a new IO, who was junior to the applicant in service instead of doing further enquiry U/R 9(1) as directed vide the order dated 29.5.2003. The applicant had also challenged the propriety of the Appellate Authority passing its order without having served the advice of the UPSC and the CVC upon the applicant. This Tribunal quashed and set aside the order dated 8.4.2010 vide its order dated 12.5.2011 in OA 1826 of 2010 on grounds of the CVC advice being not furnished to him with a directive: we quash order dated 8.4.2010 with liberty to the respondents to proceed against the applicant from the stage where the CVC advice shall be given to the applicant to file his representation.
8. The respondents in compliance of the above order dated 12.5.2011 passed the penalty order dated 25.09.2012, impugned in this case. The instant OA has been filed, as stated, challenging the impugned order on the grounds stated below. It is clarified that the examination of the grounds is pre-qualified by the fact that the applicant in his OA has adopted a large number of grounds numbering almost 30 in support of the OA. However, the grounds adopted by the applicant have been clubbed together for the sake of brevity and easy understanding and are being so taken up as enumerated below:
The order of penalty has been issued without having supplied copies of the recommendations of the UPSC and the advice of the CVC. The applicant has placed his reliance upon the following cases to support this ground:
UoI & Others vs SK Kapoor, 2011(4)SCC 589;
SN Narula vs UoI & Others, 2011 (4) SCC 591;
SBI & Others vs DC Agraawal, SLJ 1993(2) SC 88;
MD ECH Hyderabad vs B Karunakaran SLJ 1993(3) SC 193;
Ravinder Kumar IPS vs UoI & Another in OA No.2207/2005 decided on 20.12.2007;
Syed Sajid Ali vs UoI in OA No.728/2009 decided on 22.9.2010;
M.R. Dewan vs UoI in OA No 1826/2010 decided on 12.5.2011;
The impugned Memo of Charge dated 15.11.1993 had been issued without the prior approval of the Minister of Environment & Forests, Union of India on behalf of the President, which is clearly illegal and without jurisdiction. This ground is supported by:
SK Srivastava in OA No. 1434/2008 decided vide order dated 18.12.2008 upheld by the Honble High Court in WP (C );13223/2009 UoI vs SK Srivastava;
BV Gopinath in OA No.800/2008 decided vide the order dated 5.2.2009 as upheld in UoI vs BV Gopinath, WP (C) No.10452/2009 decided on 2009;
Keshavlal Trikamal Maru in OA No. 3271/2010 decided vide order dated 29.8.2011;
Rajesh Kumar in OA No.2694/2010 decided vide order dated 5.9.2011;
S Ramu & Others in OA No. 3732/2010 decided vide order dated 26.8.2011;
The Charge Memo dated 15.11.1993 was served upon the applicant without having issued a proper show cause notice/memo and without considering the representation of the applicant in violation of the service jurisprudence. This is supported by:
State of Punjab vs VK Khanna, AIR 1993 SC 1478;
State of Punjab vs Bhagat Ram, AIR 1974 SC;
UoI & Ors vs KK Dhawan, AIR 1993 SC 1478;
UoI & Ors vs Upendra Singh, 1994(3) SCC 357;
Baljit Singh Sondhi vs UoI & Ors in OA No.288/2010 of the PB decided vide the order dated 16.3.2011;
The Charge Memo dated 15.11.1993 had been issued without the prior approval of the Competent Disciplinary Authority, that being the State Government or the JAC for the Joint Cadre as reported in SLJ CAT Guwahati SLJ 2003(1) CAT Guwahati.
The impugned penalty order dated 25.09.2012 has not been passed by the disciplinary authority, that being the JCA for Joint AGMUT Cadre for IFS but instead has been passed by the Minister for Environment & Forests, who is the Appellate Authority. The applicant contends that the Minister of Environment & Forests being the Appellate Authority, he stands deprived of his right of appeal which is the statutory right. The applicant relies upon the following cases for support:-
a). Surjit Ghose versus CMD, UCO Bank [1995(2) SLR SC 11.
b. Electronic Corporation of India versus G. Murlidhar [2001 (1) SCT 391.
c. Manjit Singh versus State of Punjab [2008 (6) SLR-P&H-39.
The applicant contends that the Appellate Authority had come to a definite conclusion that the applicant is found guilty of certain procedural irregularities, but no malafide intention on the part of the official has been establishedand, accordingly proposed a minor penalty of withholding of two increments for a period of two years may be imposed on the officer. In other words, he is not held guilty of any grave misconduct or causing heavy losses to his employer. These findings stand reversed by the UPSC and CVC without having been provided any justification or tenable reasons. The decision of the Appellate Authority, who is the representative of the President of India, can only be changed by a measure of review. Even the President of India is not competent to review his own decision as well since review is not permissible under law.
The enquiry has been conducted by an officer junior to him under the provision of Rule 8(2) of the AIS(D&A) Rules, 1969 as a fresh enquiry whereas what had been directed by the Tribunal vide its order dated 29.05.2003 in OA No. 181/2002 was to conduct further enquiry under Rule 9(1) of the AIS(D&A) Rules, 1969. Here the applicant seeks support from the following cases:-
Suresh Narain Awasthi versus State of UP [ATR 1988(2)-SC-211].
Ajeet Singh versus State of Haryana [1984 (Supp) SCC 708].
Hardev Singh versus State of Haryana [JT 1987 (3) SC 417].
The memorandum of charge dated 15.11.1993 was issued by respondent no.2 i.e. Additional Secretary In-charge (UTS Division), Ministry of Home Affairs i.e. JCA for AGMUT Cadre, whereas it should have been issued with the prior approval of the Minister under whom the respondent no.2 was working.
The applicant alleges non-application of mind on the part of the respondent authority and repeatedly ignoring the directives issued by this Tribunal. The applicant also alleges malafide on the part of the respondent organization as he was the first directly recruited Indian Forest Service officer to have been placed in the Cadre whereas all other officers had been promoted from the State Forest Services. Hence, they have hounded the applicant and subverted his career prospects.
9. The respondent nos. 1 & 3 have filed their separate counter affidavits opposing the Original Application. The respondent no.1 has submitted that the instant OA is hit by principles of res judicata. The plea of the applicant that he came to know about the charge memo being not approved by the Minister of Enviornment & Forests only on 27.04.2011 is devoid of any merit in the light of the order dated 30.10.1994 passed by this Tribunal in OA No.1876/1994. The applicant has participated in the departmental enquiry on several occasions based upon the very memorandum of charge but he never chose to challenge the same. The counter affidavit further assails the OA on the ground of being self-contradictory. While on one hand the applicant argues that the JCA was competent authority to initiate disciplinary proceedings against him, on the other hand, he submits that the charge had not been approved by the Minister of Environment & Forests. The respondent no.1 contends in his counter affidavit that the Minister of Environment & Forests had indeed approved the charges and, therefore, it is legally valid. Further, the applicant has not availed of all the remedies of review/revision/memorial available to him under the AIS(D&A) Rules, 1969 and, therefore, the instant OA is not sustainable. The counter affidavit states that a total number of 11 charges were framed against the applicant out of which, 3 charges were found proved; 5 partially proved and the rest of 3 not proved. The report of the enquiry officer was considered by the respondent Ministry and an order of dismissal from service was passed in consultation with the UPSC and with the approval of the competent authority on 03.07.2001. The Tribunal, however, quashed the dismissal order on technical ground remanding the case for continuing the proceedings from the stage of ex parte proceeding having been taken on 06/07.02.1996 and accordingly the orders were issued on 24.10.2006.
10. On the issue of appointment of one S.S. Chaudhary, a junior officer to the applicant, as enquiring authority, the counter affidavit states that the applicant did not cooperate/participate in the enquiry except on a few occasions despite a number of opportunities having been granted to him. The enquiry report was submitted on 16.11.2006 finding 8 charges as fully proved and 3 charges as partially proved against the applicant. The competent authority considered the charges and the enquiry report was served upon the applicant twice over i.e. on 30.04.2007 and again on 04.06.2007 to submit his representation. However, the applicant did not prefer any representation. It was then the matter was referred to the UPSC. The applicant filed yet another OA No.418/2006 for quashing of the departmental enquiry which was allowed to be dismissed as withdrawn on 30.04.2007. He filed another OA on 13.12.2007 pleading for opportunity for submitting his representation. Accordingly, an opportunity was given to him vide letter dated 04.02.2008 in respect to which he submitted his representation dated 18.12.2008. It was on examination of this representation of the applicant and the findings of the enquiry officer that the disciplinary authority decided to impose the punishment of withholding his entire pension and gratuity applicant under Rule 6 of the AIS(D&A) Rules, 1969 in consultation with the UPSC. This led to issue the order of penalty on 08.04.2010. The applicant filed another OA namely OA No.1826/2010 challenging the penalty order dated 08.04.2010 on various grounds including non-supply of a copy of the CVC advice to him, which OA came to be disposed of vide order dated 12.05.2011 by quashing the impugned penalty order dated 08.04.2010 with liberty to the respondents to proceed against the applicant from the stage from where the CVC advice shall be given to him to file his representation. The order of the competent authority to initiate proceedings against the applicant from the stage where CVC advice was communicated to him and a copy of the advice of the CVC was provided to him on 17.10.2011 asking him to submit his representation, if any, by 08.11.2011. The last chance was given to him vide OM dated 12.11.2011 in respect to which he failed to submit any representation. The respondents were thereby compelled to treat the letters dated 05.10.2011 and 20.11.2011 as his representations and after having taken the facts and circumstances into reckoning, the impugned order dated 25.09.2012 was passed. The respondent no.1 has also submitted that this OA is barred by Rule 10 of the Central Administrative Tribunal (Procedures) Rule, 1987 in as much as the applicant has claimed multiple reliefs with plural demands. The respondent no.1 has strongly contended that as directed by this Tribunal in OA No. 1826/2010, the CVC advice was duly provided to the applicant before continuing with the departmental proceedings and imposing the penalty upon him. As regards the advice of the UPSC, it is required to be furnished to the members of the Service under Rule 29 of AIS (D&A) Rules, 1969 along with a copy of the penalty order. Under this provision, a copy of the UPSC advice has been provided to the applicant along with the impugned order of penalty dated 25.09.2012. The respondent no.1 has also relied upon the judgment passed in Civil Appeal No.2067 of 2005 decided on 19.04.2007 wherein the Honble Supreme Court has clearly held that the provisions of Article 320(3)(c) of the Constitution are not mandatory and they do not confer any right on the public servant so that the absence of consultation or any irregularity in consultation process of furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in the court of law.
11. The applicant has submitted a rejoinder to the counter affidavit of the respondent no.1 where he has denied all the submissions of the respondent no.1 and has repeated his contentions raised in the Original Application.
12. The respondent no.3 has filed a separate counter affidavit wherein he has contended in respect to the averments contained in paragraph 4.1b of the OA that JCA for all the three All India Services of the joint AGMUT cadre was notified by the Department of Personnel & Training vide Notification dated 03.04.1989. Subsequently, the JCA for the three Indian Administrative Services, was constituted vide DOP&T OM dated 25.04.1995. It was decided therein that the matters relating to vigilance cases, departmental proceedings and such other matters, which are being dealt with at the Central level, would remain with the Ministry of Home Affairs (UT Division) in the interest of the morale of the serving officers as well as maintenance of uniformity in decision making. As such, the Ministry of Environment & Forests is fully competent to initiate disciplinary proceedings with the issue of the charge sheets and conducting departmental inquiry as well as imposing the penalty in consultation with the UPSC. The respondent no.3 has also enclosed a copy of the Agenda Note of the above meetings in support of his contention.
13. We have carefully considered the pleadings and such documents as have been submitted by the parties to this proceeding. We have also listened very patiently the oral submissions made by the respective counsels. However, we make a particular mention that the oral submissions made by the applicant spread over for four days. We take a note of the fact that this case is much litigated one as the applicant is doing the fifth round of litigation before this Tribunal. On the basis of the above documents and submissions, we find that the following facts in issues are emerging:-
Whether the case of the applicant is barred by res judicata qua the impugned charge Memo dated 15.11.1993?
Whether the charge memo dated 15.11.1993 is legal and valid?
Whether the appointment of an officer, junior to the applicant, as the enquiry officer vitiates the departmental proceedings?
Whether holding the enquiry under Rule 8(2) of the AIS(D&A) Rules, 1969 in place of Rule 9(1) of the Rules ibid vitiates the enquiry proceedings?
Whether the punishment of forfeiture of full pension and entire DCRG on permanent basis is hit by the doctrine of proportionality?
What relief, if any, could be granted to the applicant?
14. In so far as the first of the issues is concerned, it is an admitted position that the entire proceeding is being conducted on the basis of the charge memo dated 15.11.1993 issued to the applicant. Further, admittedly, that in so far as this departmental proceeding is concerned, this is 6th round that the applicant has come before this Tribunal. This does not include the rounds of litigation which he has done earlier on issues like promotion, joining etc. prior to the instant Original Application. For the sake of clarity, we would like to place on record the charges framed against the applicant:-
Article: I Un-authorized absence from duty:
Shri M.R.Dewan, IFS, AGUMT:74, while working as Deputy Conservator of Forests (DCF) consequent upon his transfer on 6.8.1988 from Arunachal Pradesh to Forest Department, Andaman and Nicobar Islands Administration, and reporting due on 21.10.1988 was posted as DFI, Nicobar Division, Campbell Bay. Shri Dewan, nevertheless, disobeyed the transfer orders and did not join the said posting and applied for casual leave instead. Casual leave was not granted to him. He was again asked to join duty at Campbell Bay. The orders were again disobeyed by Shri Dewan and he left the duty and the station on 05.11.1988, without any permission from the competent authority and joined duty only on 30.03.1992. Shri Dewan, thus, remained absent from duty unauthorisedly for the period from 05.11.1988 to 29.03.1992.
Shri Dewan reported for duty on 30.3.1992 consequent upon which, he was directed on 09.04.1992 again to report for duty at the place of posting at Campbell Bay. Shri Dewan again showed disobedience to the orders and applied for ten days casual leave and, he left the station without waiting for the sanction of the leave that was applied for. Subsequent to this, he applied for leave twice on 21.4.1992 and 15.5.1992 on the ground that he has been recommended hospitalization. Shri Dewan, however, was directed to appear before the Medical Board, Ram Manohar Hospital, New Delhi, but he did not appear before the designated Medical Board, and reported for duty at Campbell Bay, only on 15.6.1992. No medical and fitness certificates were, nevertheless, submitted by him fro the period of his absence from duty till 14.6.1992. Instead, he requested for regularization of absent period by granting casual leave, earned leave restricted leave and joining time. The period from 9.4.1992 to 14.6.1992 was, thus, the second spell of un-authorized absence from duty by disobeying the orders.
Shri Dewan again left the place of duty at Campbell Bay without permission and sanction of any leave and arrived at Port Blair on 3.7.1992 and left for the mainland to return only on 13.7.1992. Even after return from the mainland, he did not proceed to the place of duty at Campbell Bay. He was asked on 28.7.1992 and 31.7.1992, respectively, to explain the reasons for his unauthorized absence for the period 9.4.1992 to 14.6.1992 and 3.7.1992 to 13.7.1992. No reply, was, however, received from him.
Shri Dewan has, thus, violated the provisions contained in Rule 3 of AIS (Conduct) Rules, 1968, and is, therefore, liable for disciplinary action.
Article-II Irregular drawl of pay advanced other financial irregularities:
During his posting at Andaman and Nicobar Islands, Shri Dewan during June, 1992 had drawn the pay advance under Rule 223 of G.F.R. consequent upon his transfer from Arunachal Pradesh on 6.9.1988 without production of L.P.C. and without application for the same. An amount of Rs.7,325/- as pay advance was sanctioned by Shri Dewan to himself by misusing his official position and other financial powers while functioning as DDO.
Shri Dewan had also not allowed the deduction of contribution towards the GPF as well as UTGEIS in his own case from the pay himself for the months from April, 1992 to November, 1992 (except May, 1992). Shri Dewan thus, willfully violated the rules 171 and 180 of Receipt and Payment Rules by misusing the powers of (sic).
Article-III Irregular drawl of House Rent Allowances.
While functioning as DFO, Campbell Bay and DDO, Shri Dewan sanctioned to himself the HRS @ Rs.800/- and Rs.533/- for the months of April and June, 1991 respectively, without the sanction of the competent authority.
On his transfer from Nicobar Division to Port Blair, Shri Dewan released his own LPC on 29.12.1992 without handing over the charge and without showing the recoveries of advances taken by him and other recoveries like GPF, AIGIS, Income Tax etc., deliberately in the said LPC.
By the above acts, Shri Dewan gain misused his official position as Head of Office and DDO and violated the Government of India decision No.1(iii) of Rule 6 of GFR.
Article IV Irregular sanction of advance of Transfer TA:
Shri Dewan was sanctioned an amount of Rs.13,400/- as transfer TA to bring his family to Andaman & Nicobar Islands from Arunachal Pradesh consequent upon his transfer for which he was supposed to submit the necessary adjustment bill after performing the journey, but the same was not done by him.
Instead of submitting the adjustment bill for the above advances, on 10.4.1992, he applied for another advance of Rs.82,287/- as a transfer grant which was not agreed since he had already been sanctioned the advance of transfer TA. On taking over the charge of DFO, Nicobar Division on 15.6.1992, he sanctioned to himself, being DDO, another advance of Rs.72,579/- as Transfer TA. Shri Dewan was directed to refund the said illegally drawn advance immediately and he did not do so.
He had drawn another advance of Rs.9,883/- on account of tours to attend the training courses at New Delhi without proper sanction from the competent authority and on completing the journey in October, 1992, submitted the TA bills without air tickets as supporting document.
Article V Misuse and exceeding the limits of financial powers and the terms of contract:
Shri Dewan, while working as DFO, Nicobar Division, had exceeded the powers of his financial limits of Rs.10,000/- and made payments to the extent of Rs.48,752/- in a contract with a transport carrier and also failed to deduct the income tax from the amount of the contract.
Further, he acted beyond the limits of his official authority by violating the terms of contract in hiring the transport carrier beyond the 3 months period of the contract and continued to hire the said carrier for full 4 months without any review of the contract.
By commissions of the above act, Shri Dewan willfully violated Rule 12 (2) of GFR and displayed lack of integrity.
Article VI Misuse of Financial Powers for the Purchase of Stores for Building Material :
While functioning as DFO, Campbell Bay, Shri Dewan placed the orders for the procurement of the stores valuing Rs.34,579/- by splitting the indents keeping the value of each splitted indent within his financial limits which was a deliberate action on the part of CO to bypass the sanction of the competent authority for the purchase of store items worth Rs.34,579/- and thus violated Rule 104 of GFR.
Article VII Misappropriation in the purchase of sawn timber from a private saw mill for construction of a building:
Shri Dewan has shown the purchase of sawn timber of 26,366 cum. For the construction of Type-II and Type-III quarters and repair work of the value of Rs.96,953/- without following the laid down procedure for such purchase, i.e. calling of quotations etc. Shri Dewan as DFO was not competent to approve the purchase of stores beyond the value of Rs.10,000/- Shri Dewan made the payment by fraudulent manner to the extent of Rs.96,593/- by restricting the amount of each bill below Rs.10,000/- i.e. within the powers of his financial limit.
From the actual place and execution of work, it was revealed that only about 6 to 8 cum. Of timber have been actually used against the purchases of sawn timber shown as 26,366 cum.
Shri Dewan as thus, willfully, violated the Rule 104 of GFR by purchasing sawn timber from private saw mill for Rs.96,953/- without the approval of competent authority and without observing the codal formalities.
Article VIII Unauthorised demolition of residential Government building:
Shri Dewan, while functioning as DFO, Campbell Bay, unauthorisedly on verbal order got demolished the government residential building No.T/2-III, T/9-II A & B situated at Campbell Bay. Most of the dismantled materials from the demolished building were disposed of without bringing them into the record. Demolition was shown on the plea that the building had been damaged during the cyclone.
By the above acts, Shri Dewan has violated Rule 24 of DFPR.
Article IX Disposal of the seized red corals:
Seized red coral reefs of 118 gunny bags were handed over by Shri OA Reddy, DFO, in his charge note to the succeeding DFO, Shri M.R.Dewan. Corals of 103 gunny to the seizure of these corals have also been found misplaced from Range Office, Campbell Bay as well as Divisional office. This happening shows that there was a close nexus between the DFO, Shri Dewan and the Deputy Range Officer (Shri K.P.Aboobeker) in disposing the major portion of the seized material for their personal gains.
Further, the officer did not even bother to inform the loss of the red corals to higher authority, in terms of Rule 16 of GFR.
By the above acts, Shri Dewan had displayed lack of devotion to duty, integrity and violated the provision of GFR and Rule 3 (1) of AIR (Conduct) Rules, 1968.
Article X Illegal felling of trees and misappropriation of timber out of it:
Shri M.R.Dewan, while functioning as DFO, Campbell Bay, permitted illegal felling of 10 trees and lifting of 5 logs estimated as 60 cum. Of timber which was supplied to M/s Elephants Saw Mill in the A & N Islands, in connivance with the Range Officer. The said timber was supplied to the above firm for conversion into sawn timber. Since the DFO had already purchased huge quantity of sawn timber from the same firm, there was no need/justification for making felling of so many trees for producing sawn timber in a private saw mill without observing the codal (sic).
It was noticed that out of 60 cum. round timber supplied to the above said firm, only 9.995 cum. of sawn timber was recovered whereas, the rest of the quantity of timber was misappropriated by Shri Dewan.
Article XI Leaving the Headquarter, Port Blair, during suspension without (sic).
Shri Dewan left the declared Headquarter of Port Blair sometimes aroung 18.2.93 during the period his suspension ordered by the Government of India on 10.2.93 without permission and is continuing to station in Delhi.
15. We have already taken a note of the various orders passed by this Tribunal in five earlier rounds of litigation arising from the afore Memorandum of charge dated 15.11.1993. Therefore, to repeat these arguments and the orders made earlier by this Tribunal would only add to the bulk of the order without having attributed necessarily to its clarity. However, in order to decide the present issue, it is mandatory to mention the prayers made and the operative portion of the orders passed by the Tribunal in all the previous five Original Applications, which are given hereunder in tabular form:-
Sl.
No. OA No. Main Prayer Decision 1 181/2002 i) Quash the Office Order dated 03.07.2001 with all its consequences;
ii) declare that the action of the respondents in passing the impugned penalty order as illegal, arbitrary, malafide, unjustified, without jurisdiction & untenable in law with all consequences;
iii) direct the respondents to restore all the benefits to the applicant including reinstatement to the post, pay, seniority, promotion to the next higher grades from their due dates, as if no such aforementioned penalty has ever been imposed with all its consequences. 29. Accordingly, we are of the considered view that in view of the Apex Courts judgment in D.C. Agarwal (supra) and consistent view held by the Tribunal in Raj Kamal (supra) and R.K. Mishra (supra) since the applicant has not been supplied the copy of the advice of the UPSC, which has been used at the time of pasing of the final order. So the final order cannot be sustained and the same is liable to be quashed.
30. Accordingly, we hereby quash the impugned order and the OA is allowed. The case is remanded back to the department for proceeding from the stage the ex parte proceedings were taken on 6/7.02.1996. The quashing of impugned order will not amount to automatic reinstatement of the applicant and the respondent may pass appropriate order in accordance with rules and instructions. No costs.
2 418/2006 i) Quash and set aside the impugned order dated 18.01.2006 at Annexure A-1, order dated 30.01.2006 at Annexure A-2 and 24.10.2003 at Annexure A-6.
ii) Quash and set aside the de novo enquiry initiated by the respondents in pursuance of the order dated 24.10.2003.
iii) Direct the respondents to give all consequential benefits on the basis of the above prayers. This Original Application is dismissed as withdrawn with leave and liberty as asked for if permissible under the law.
3 1043/2007 i) Quash and set aside the impugned order dated 24.10.2003 at Annexure A-1 and order dated 24.10.2003 at Annexure A-9;
ii) Quash and set aside the appointment of a new Enquiry Authority to conduct the de novo enquiry initiated by the respondents in pursuance to the order dated 24.10.2003. Also to quash/set aside the entire proceedings in view of the law laid down by HT reported as SLJ 1991 (1) CAT-PB-463.
iii) Direct the respondents to give all consequential benefits including all pending promotions of SG, CF, CCF, Add. PCCF & PCCF along with financial benefits on the basis of aforesaid prayers. Directions to the respondents vide order dated 13.12.2007 are to afford an opportunity to the applicant to represent against the inquiry report and thereafter, the respondents shall pass a final order within two months from the date of receipt of this order.
4 1826/2010 i) Quash and set aside the office order dated 8th April, 2010 with all its consequences;
ii) Declare that the action of the respondents in passing the impugned penalty order as illegal, arbitrary, malafide, unjustified, without jurisdiction & untenable in law with all its consequences;
iii) Direct the respondents to restore all the benefits to the applicant including the release of the gratuity and proper calculation of pension after releasing the seniority above all those who were promoted to STS of IFS after 1.3.1978 and all due performa promotions upto the next higher grades i.e. SG, CF, CCF, Add PCCF & PCCF from 01.01.1982, 04.12.1985, 16.6.1992, 06.11.2002 & 04.02.2004 respectively as if no such aforementioned penalty has ever been imposed with all its consequences; We quash order dated 08.04.2010 with liberty to the respondents to proceed against the applicant from the stage where the CVC advice shall be given to the applicant to file his representation.
5 925/2012 i) Quash and set aside the office impugned Charge Memo dated 15.11.1993 with all its consequences;
ii) Declare that the action of the respondents in issuing the impugned charge memo as illegal, arbitrary, malafide, unjustified, without jurisdiction & untenable in law with all its consequences;
iii) Direct the respondents to restore all the benefits to the applicant including the release of the gratuity and proper calculation of pension after releasing the seniority above all those who were promoted to STS of IFS after 1.3.1978 and all due performa promotions upto the next higher grades i.e. SG, CF, CCF, Add PCCF & PCCF from 01.01.1982, 04.12.1985, 16.6.1992, 06.11.2002 & 04.02.2004 respectively as if no such aforementioned Charge Memo has ever been issued. Disposed of as withdrawn with the permission to file a fresh original application challenging the penalty order dated 25.09.2012 along with the impugned Charge Memo dated 15.11.1993.
16. From the above, it emerges clearly that the earlier five successive rounds of litigation have been decided on the basis of the Charge Memo dated 15.11.1993. Now, the applicant has sought to question that the charge memo had been issued without proper approval of the competent authority and without issue of show cause notice as also having considered the representation of the applicant. It is further contended that it is the JCA, which is the only disciplinary authority. We also take note of the fact that the issue of res judicata has been raised by the learned counsel appearing for the respondents on the ground that the charge memo dated 15.11.1993 has been consistently the platform for all these legal contestation in the five earlier successive rounds, which have been considered and decided. Therefore, its validity cannot be questioned at the present moment. For this, it is necessary to go into the genesis of the term res judicata and its principles. As per the interpretation by Craig R. Ducat, in Constitutional interpretation it means a matter adjudged; the legal principle that prevents interminable re-litigation of the merits of a case by foreclosing other than the pertinent appellate tribunals from deciding the merits of a case once a Court of competent jurisdiction has rendered judgment. It refers to a general term which lumps under a single name two quite different effects of judgments. The first is the effect of foreclosing any litigation of matters that never have been litigated, because of the determination that they should have been advanced in an earlier suit. The second effect relates to foreclosing re-litigation of matters that have once been litigated and decided. The first goes under the name true res judicata or merger and bar. The second is also called as collateral estoppel. In Indian law, the rule of res judicata was first introduced by Section 17 of Bengal Regulation 3 of 1793 which effectively prohibited the Zila and City Courts for entertaining any cause which appears to have been heard and determined by any Judge earlier having competent jurisdiction. It was included in the Code of Civil Procedure, 1908 when enacted under Section (2). On introduction of doctrine of estoppels, the Code was again revised and the bar was no longer confined to re-trial of a dispute relating to the same cause of action but the prohibition was extended against re-agitating an issue which had been heard and finally decided between the same parties in a former suit by the competent court. Before it assumed its present form, the principle of res judicata as provided in Section 11 of the CPC envisages certain conditions. These conditions must get fulfilled in order to attract this principle. The first of these conditions is that the matter should have been directly and substantially in issue; secondly there should have been a former suit or litigation between the same parties or the parties under whom they claim or any one of them litigates under the same title; and the issue should have been substantially raised, heard and finally decided by such court. Explanation IV to section 11 provides that any matter, which might or ought to have been made ground of defence or attack in such former suit so that it may be deemed to have been directly and substantially in issue in such suit.
17. The matter has already been the subject to a series of judicial decisions by the Honble Apex Court. In the matter of M. Nagabhushana versus State of Karnataka & Others [AIR 2011 (SC) 1113], Honble Apex Court, after considering the issue of res judicata in detail, has noted that the principle behind the res judicata is to prevent the abuse of the process of law. The general principle underlined the res judicata is ultimately based on consideration of public policy decisions pronounced by the courts of competent jurisdiction should be final unless they are modified/reversed by the appellate authorities and that no one should be made to face the same kind of litigation twice over as the same would be contrary to the considerations of fair play and justice.
18. In the matter of Bihar State Government Secondary School Teachers Association versus Bihar Education Service Association & Others [2012(11) Scale 291] wherein the Honble Court held that where the State Government had passed a Resolution as per the directives issued by the Apex Court, the Honble Single Judge of the High Court has no business to re-open the entire controversy. Relevant part of the decision reads as under:-
45. For the reasons stated above, these appeals (arising out of SLP Nos.26675-76 of 2010) are allowed. The judgment and order passed by the Division Bench of Patna High Court in LPA No.418/2009 and other LPAs dated 21.5.2010, and that of the learned Single Judge dated 31.10.2007 in CWJC No.8679/2002 are set-aside and the said Writ Petition is hereby dismissed. Consequently the notification dated 19.11.2007 issued pursuant to the decision of the Single Judge will also stand quashed and set-aside. The State Govt. Resolution dated 7.7.2006 is upheld. The state shall proceed to act accordingly. I.A. Nos.19-20/2011 are dismissed. As stated by Mr. Patwalia, learned senior counsel for the appellants, the appellants no longer press for the action for contempt arising out of CWJC No.8679/2002. Contempt Petition Nos. 386-387/2011, will also accordingly stand disposed of, as not pressed.
46. The attitude of the State Govt. in this matter has caused unnecessary anxiety to a large number of teachers. The State Govt. must realize that in a country where there is so much illiteracy and where there are a large number of first generation students, the role of the primary and secondary teachers is very important. They have to be treated honourably and given appropriate pay and chances of promotion. It is certainly not expected of the State Govt. to drag them to the Court in litigation for years together.
19. In view of the above, we find that since the question of validity and legality of the charge memo dated 15.11.1993 had consistently been running through the earlier five rounds of litigation apart from the one in the present 6th round, the applicant must have gone through the charge memo on enumerable number of times. We find it very difficult to believe that it was for the first time that the applicant came to know about the charge memo in the year 2011. Moreover, as would be apparent from the Table given above that as the charge memo has been the basis of all decisions having been assailed consistently, it is not now open for the applicant to re-open the question of legality of the charge memo as the bar under Section 11 of the Code of Civil Procedure, 1908 would fully apply, to our mind.
20. However, we find that this Tribunal vide order dated 11.10.2012 in OA No. 925/2012 had permitted the applicant to challenge the charge memo dated 15.11.1993 along with the impugned order dated 25.09.2012 to which the learned counsel for the respondents had raised no objection. For the sake of clarity, we reproduce the Tribunals order hereunder:-
During the course of arguments the applicant, who appears in person, submitted that the respondents have recently passed another order on 25.09.2012 whereby they have, relying on the advise of the UPSC, inflicted punishment of forfeiture of full pension and entire gratuity on permanent basis on him. He, therefore, submits that instead of getting the pleadings amended, he may be given leave to file another OA with appropriate pleadings and also assailing the aforesaid order dated 25.09.2012. Learned counsel for the respondents has no objection to the prayer. The prayer is, therefore, allowed.
2. Accordingly, the OA is permitted to be withdrawn with liberty to the applicant to file fresh Original Application challenging the subsequent order dated 25.09.2012 passed by the respondents along with the charge sheet. However, it would be open to the applicant to raise all the grounds while challenging the charge sheet and the punishment order.
21. In the case of S. Nagaraj (Dead) by L.Rs & Others versus B.R. Vasudeva Murthy & Others Etc. [(2010) 3 SCC 353], the matter involved was that 3 Guntas of Inam land was allotted by the State Government to an Association of Teachers for construction of houses, which was challenged by the Bangalore Development Authority as it had a sanctioned layout plans for the same. Two persons, namely, Sreenivas Rao and Babu Rao, Inamdars, had claimed for registration of the land in their names as per the provisions of the Inam Abolition Act, 1954 and questioned the grant on the ground that both of them had occupancy right in respect of the land in question which had been confirmed by the State Government. It was held by the Hoble Supreme Court that the action of the State Government in allocation was barred by doctrine of constructive res judicata as explained in Explanation IV to Section 11 of the Code of Civil Procedure, 1908. For the sake of clarity, the above provisions are being reproduced hereunder:-
11. Res judicata.
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
The Honble Supreme in the aforesaid decided case has, however, held as under:-
35. We now come to the argument of Mr. Dave that the order dated 15.6.1979 of the State Government sanctioning grant of land in favour of Sangha for house sites was void abinitio because of the prohibitions in Sections 79-A, 79-B and 80 of the Land Reforms Act and that if the Court holds that the order dated 15.6.1979 was void ab initio on this ground, the earlier decision dated 15.9.1998 of the Division Bench of the Karnataka High Court in Writ Appeal No.7574/1996 would not operate as res judicata. This argument of Mr. Dave is based on the observations in Mathura Prasad Bajoo Jaiswal and Others. v. Dossibai N.B. Jeejeebhoy (supra) that "when the earlier decision declares valid a transaction which is prohibited by law" it does not operate as res judicata. We find from a reading of the order dated 15.9.1998 of the Division Bench of the Karnataka High Court in Writ Appeal No.7574/1996 that a contention was raised on behalf of the legal representatives of the Inamdars that there was no power to grant land for house sites under the Karnataka Land Grants Rules, 1969 but the Division Bench of the Karnataka High Court negatived the said contention and held that under Rule 20 of the Karnatka Land Grants Rules, 1969, the State Government had the power to grant land to the Sangha for house sites. We do not find from the judgment of the Division Bench of the Karnataka High Court in Writ Appeal No. 7574/1996 that any contention was raised on behalf of the legal representatives of the Inamdars that grant of land in Survey Nos.45 and 47 of Jakkasandra village could not be sanctioned in favour of the Sangha for house sites because of the restrictions in Sections 79-A, 79-B and 80 of the Land Reforms Act. If this ground of attack had not been taken by the legal representatives of the Inamdars while challenging the order dated 15.6.1979 of the State Government sanctioning the grant of land in favour of the Sangha, this contention could not be raised by them before the High Court in a subsequent proceeding because of the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure which has been applied to writ petitions. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Others [(1990) 2 SCC 715] a Constitution Bench of this Court observed at Page 741:
"The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri [(1986) 1 SCC 100] further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case."
36. Nonetheless, as the Division Bench of the Karnataka High Court had not decided this question in the judgment dated 15.9.1998 in Writ Appeal No.7574/1996 and the High Court has decided this question in the impugned common judgment dated 22.12.2006, we think it necessary to examine this question in these Civil Appeals against the impugned common judgment dated 22.12.2006. We find that Chapter V of the Land Reforms Act is titled "Restrictions on holding on transfer of agricultural lands" and the language of Sections 79- A, 79-B and 80 shows that these provisions apply to only "agricultural lands". We also find from the provisions of sub- sections (2) and (7) of Section 95 of the Karnataka Land Revenue Act, 1964 (for short `the Land Revenue Act') that the land held for agricultural purpose can be permitted to be diverted for other purposes on payment of fine. In the order dated 15.6.1979 of the State Government sanctioning the grant of the land in favour of the Sangha, it is clearly stipulated that the Sangha shall pay such conversion fine to be levied as per the rules made under the Revenue Act. The Karnataka Land Grants Rules, 1969 made under Section 179 of the Land Revenue Act and in particular Rule 18 has also made elaborate provisions for grant of building sites on payment of price. Justice G.P. Singh in Principles of Statutory Interpretation, 12th Edition at page 298 says:
"..............a statute must be read as a whole as words are to be understood in their context. Extension of this rule of context permits reference to other statutes in pari materia, i.e. statutes dealing with the same subject-matter or forming part of the same system."
36.1. Sections 79-A, 79-B and 80 of the Land Reforms Act, therefore, have to be read together with Section 95 of the Land Revenue Act as all these provisions deal the same subject matter, namely, agricultural lands. We therefore hold that the law permitted the grant of the agricultural land in favour of the Sangha for house sites on payment of conversion fine and the grant made by the State Government in favour of the Sangha by the order dated 15.6.1979 was not void ab initio on this count.
22. Of course, we take full cognizance of the fact that, as noted above, it was this Tribunal which had granted liberty to the applicant to raise the issue relating to the charge memo dated 15.11.1993. The argument of the applicant is that since the liberty has been granted, the issue is being raised. However, what the Tribunal had granted the applicant was the liberty to raise the issue which he has rightly done. This did not amount to accepting the plea of res judicata raised by the respondents. The liberty granted by the Tribunal, which stands to reason, cannot overcome the express provisions of law and get better by the pronouncements of the Apex Court and other superior courts.
23. We also pause here to consider that what would be the effect of principle of res judicata. Would it throw out the entire case or shall be limited only to the parts of it? What is to be the scope of application of the principle of res judicata? We take full cognizance of the fact that the impugned order dated 25.09.2012 is a new order. Therefore, it has to be dealt with on its own merit. The principle of constructive res judicata would only apply to the extent that the validity and legality of the charge memo is being questioned for the reasons stated above. This issue is accordingly decided.
24. In so far as issue no.2 is concerned, it has already been covered in respect to the issue no.1 which having been decided, the way it has been, leaves the instant issue as redundant.
25. In so far as issue no.3 is concerned, in this regard sub-clause 6(a) of Rule 8 of the AIS (D&A) Rules, 1969 provides for appointment of the enquiry officer, which reads as under:-
(6) (a) On receipt of the written statement of defence, the disciplinary authority may appoint under dub-rule (2), and inquiring authority for the purpose of inquiring into such of the articles of charge as are not admitted, and, where all the articles of charge have been admitted by the member of the Service in his written statement of defence, the disciplinary authority shall record its finding on each charge and shall act in the manner laid down in Rule 9. It is significant to note that no qualifications for appointment of the enquiry officer have been provided. This clause does not prescribe anywhere as to whether the enquiry officer should necessarily be senior to the charged officer. Here, it is to be noted that in para 5.8 of the Original Application while discussing the grounds, the applicant has submitted both the facts that an officer of 1975 batch, junior to the applicant, had been appointed as the enquiry officer and who had conducted the enquiry under Rule 8.2 of the AIS(D&A) Rules, 1969 as a fresh/de novo enquiry instead under Rule 9.1 of the Rules 1969. In this regard, the applicant has relied upon the decisions in the matter of Suresh Narain Awasthi versus State of UP [ATR 1988 (2)-SC-21]; Ajit Singh versus State of Haryana [1984(Suppl) SCC 708] and Hardeep Singh versus State of Haryana [JT 1987 (3) SC 417]. The case of Ajit Singh versus State of Haryana (supra) merely quashes the order of dismissal of the applicant but does not discuss the rationale or lays down any ratio. The decision in the case of Hardeep Singh Vs. State of Haryana (supra) also quashes the order of dismissal in respect of 425 Constables where no show cause notice had been given nor any chargesheet issued. These decisions, in our view, are not relevant to the facts of the case in hand. To the contrary, the same issue had been discussed by the Honble Supreme Court in the matter of Pankajesh versus Tulsi Gramin Bank & Another [(1997) 7 SCC 68] where the petitioner had been chargesheeed for dereliction of duty and punished by withholding three increments with cumulative effect. Here, the only legal question, when the matter came up in SLP, was whether the enquiry officer has to be higher in rank than the delinquent officer. In the afore case, it was the argument of the applicant that there was a provision under Rule 30 (3) of the Staff Service Regulation that the enquiry officer had to be higher in rank than the delinquent officer. The Honble Supreme Court has held as under:-
6. Thus an enquiry, under the Regulation may be delegated to a person higher in rank than the delinquent officer, in the case of an officer. But in this case we do not find any substantial miscarriage of justice prejudicial to the petitioner for the reason that though it is always desirable that an officer higher in rank than the delinquent officer should be directed to conduct an enquiry, the enquiry is conducted as a delegate of the disciplinary authority. Therefore, the ultimate decision is to be taken by the disciplinary authority. By mere delegating the enquiry whether the enquiry officer is of the same cadre or of higher grade than that of the petitioner, it did not cause any material irregularity nor resulted in any injustice to the petitioner. Under these circumstances, we do not find any illegality warranting interference.
26. Here, it is to be noted that the enquiry officer was the Principal CCA of Andaman, Nicobar Islands. He was the highest authority available in the department. We take a hypothetical case where the senior-most officer of the Cadre is departmentally proceeded against, then the question would arise from where the Cadre Authority would get an officer senior to the charged officer. Therefore, without going further into the facts, we take the view that the enquiry officer being junior to the charged officer in years of service put in does not take away the validity of the fact that the charged officer had already stood superseded in terms of promotion. We have to consider that where an officer consistently gets superseded and is subsequently departmentally proceeded against, can he be allowed to take the plea that the officer is junior to him. It is also well established fact that the seniority as decided by the UPSC with which the officer is borne into the cadre will not last for the entire service period of the officer. Where he has been superseded and the officer superseding has served, one cannot wish to put the clock back unless it is otherwise expressly provided in the service regulations.
27. In so far as issue no.4 is concerned, it is necessary to look at the provisions of Rules 8 & 9 of the Rules 1969 as to how the disciplinary and appeal matters relating to all India Services are to be dealt with Rule 8 of the Rules, 1969 lays down the procedure for imposing major penalties. It is approximately equivalent to Rule 14 of CCS (CCA) Rules, 1965. These rules are to be recoursed to when the question of awarding minor penalty as determined under Rule 6(1) of the Rules, 1969 are concerned. Rule 8(1) of the Rules ibid lays down:-
8. Procedure for imposing major penalties. 8(1) No order imposing any of the major penalties specified in rule 6 shall be made except after an inquiry is held as far as may be, in the manner provided in this rule and rule 10 or provided by the Public Servants (Inquiries) Act 1850 (37 of 1850) where such inquiry is held under that Act. It relates to a basic enquiry. On the other hand Rule 9 of the Rules, 1969 deals with the action on the enquiry report. One of the options open to the disciplinary authority is where he feels that there is a case for further enquiry.
28. When we look at the successive orders of the Tribunal, we find that, as stated in the Table above, in OA No. 181/2002, the order of dismissal dated 03.07.2001 had been quashed and the case was remanded to the respondents to proceed further from 06/07.02.1996. In OA No. 1043/2007, there was an order dated 13.12.2007 to afford an opportunity to the applicant to represent against the enquiry report and thereafter to pass a final order. In OA No. 1826/2010, the Tribunal had struck down the order dated 08.04.2010 granting the respondents liberty to proceed with from the stage of giving the CVC advice to the applicant. Relevant portion of the order reads as under:-
4. In the result, we quash order dated 08.04.2010 with liberty to the respondents to proceed against the applicant from the stage where the CVC advice shall be given to the applicant to file his representation. No order as to costs. Accordingly, the proceedings were conducted from the stage of giving the CVC advice to the applicant. Therefore, we see no contradiction or illegality in the process. In fact, we find substance in the arguments of the learned counsel for the respondents that the enquiry has been conducted as per the directives of this Tribunal. We let this issue rest at this.
29. In so far as issue no.5 is concerned, the applicant has challenged the punishment on ground of proportionality. The applicant has relied upon the opinion of the competent disciplinary authority (after 03.04.1989) wherein he, while recording that there was no malafide intention on the part of the official respondents, proposed a minor penalty. The applicant has argued that this decision is perfect and binding as there had been no note of disagreement submitted by the respondent authorities subsequent to this note and served upon the applicant, which was the mandatory requirement before taking any action. It has, however, not been complied with. Therefore, the punishment of forfeiture of full pension and entire gratuity on permanent basis is disproportionate and beyond the decision of the disciplinary authority. The learned counsel appearing for the respondents has challenged this assertion on the ground that the opinion expressed by the disciplinary authority in this case being the Minister of Environment & Forests does not hold good for all times to come. This observation had only been made in respect of a particular proceeding. After that the proceedings have been conducted and re-conducted on several occasions under the orders of this Tribunal. Therefore, whatever relevance this observation might have had, it stood extinguished. The applicant cannot use this as a character certificate for all times to come. In these rounds of proceedings, the evidence has been appreciated and re-appreciated. The advice of the CVC and UPSC are also there. It is true that the disciplinary authority is not bound by the advice of the CVC and/or the recommendations of the UPSC and is free to form its own opinion. However, when the directives of this Tribunal in its order dated 12.05.2011 in OA No.1826/2010 had been to provide a copy of the advice tendered by the CVC to the applicant and then to conduct the proceedings thereafter, it implies that what this Tribunal had in its mind was that the question of punishment was left wide open. This had to be considered afresh by the disciplinary authority. Hence, we are of the firm opinion that the option of the CVC was not burdened by the opinion expressed earlier by the Minister of Environment & Forests.
30. However, having said this, we find that the challenge of the applicant to the punishment has to be decided on the touchstone of proportionality by this Tribunal. We have already enumerated the Article of Charges against the applicant in earlier part of this order. However, we observe that Article of Charge no.1 relates to unauthorized absence; Article of Charge no.2 relates to irregular drawl of pay; Article of Charge no.3 pertains to irregular drawl of house rent allowance; Article of Charge No.4 relates to irregular sanction of advance of transfer TA; Article of Charge no.5 goes to alleged misuse and exceeding the limits of financial powers and the terms of contract; Article of Charge no.6 relates to misuse of financial powers for the purchase of stores for building material; Article of Charge no.8 is for unauthorized demolition of residential government building; and Article of Charge no.11 relates to leaving the headquarter, Port Blair, during suspension without permission. It is only Article of Charge no.7 - misappropriation in the purchase of sawn timber from a private saw mill for construction of a building; Article of Charge no.9 - disposal of the seized red corals; and Article of Charge no.10 - illegal falling of trees and misappropriation of timber out of it, relate to the integrity of the applicant.
31. We are conscious of the fact that this Tribunal is not competent to venture into the domain of re-appreciation of evidence as it will be assuming the role of super appellate authority. It has only to confine itself to the procedural irregularities, violation of statutes and malafide. Even without re-appreciating evidence, we may state that we find looking at the papers of the departmental proceedings and the impugned order dated 25.09.2012 that Article of Charge Nos.1, 6 & 11 have been fully proved. The unauthorized absence from duty for a limited period can hardly be construed to be a charge so as to warrant dismissal of the charged officer. The charge relating to misuse of financial power for purchase of stores was for building construction and the applicant was not charged with misappropriation or embezzlement of funds or to accept illegal gratification. The position is no different with charge no.11 which is for leaving the headquarters during suspension unauthorizedly. The charges, which have been partially proved though relate to financial irregularities but cannot be equated to misappropriation. Even if pay has been drawn unauthorizedly, it is not beyond accountability and recovery. The same also holds good for the house rent allowance and traveling TA. Article of Charge No.5 is for exceeding the financial limits is again not for misappropriation of funds of the government by the applicant. Article of Charge No.7, which relates to misappropriation in purchase of sawn timber from a private saw mill for construction of building, again stands partially proved but even then it has due seriousness. The remaining charges No. 8, 9 and 10 have not been proved.
32. In view of the above discussions, it is quite clear that the punishment awarded does not appear to be proportionate to the gravity of the charges proved against the delinquent officers. Of course, we fully concede that it is a matter of judgment of the disciplinary authority but what this Tribunal has to see is as to whether the punishment awarded to the delinquent officer shocks its conscience. We do not, for a moment, propose to substitute the appellate authority as the quantum of punishment to be decided remains the preserve of the disciplinary authority and the chain of the appellate authorities or the Honble Supreme Court of India under Article 141 of the Constitution. We are not armed with any such powers. Therefore, we desist from passing any such order.
33. Coming to the last issue, we only take note of the fact that admittedly the applicant being the first directly recruited IFS officer, instead of fighting against the poachers, had been fighting court battles against his own department. It has been his life time of wastage. Without reflecting on the merit of the case, we only like to infer that for the offences discussed, proved, partially proved, and not proved, the punishment of dismissal does not appear to be proportionate at all to the gravity of the offences. Of course, there is no yardstick by which the misconduct can be measured to its perfection. Yet we have no hesitation in holding that the punishment of forfeiture of full pension and entire gratuity on permanent basis is jarring to our judicial conscience. There is no place for vindication and settling scores while deciding the punishment in a departmental proceeding. However, we are increasingly convinced that punishment of compulsory retirement would have been more in order and befitting the circumstances of the case as the view taken by the Honble Supreme Court in the matter of Chandra Vilash Rai versus State of Bihar [(2003)-11-SCC-741].
34. In totality of facts and circumstances of the case and in view of our above discussion, we allow the instant Original Application with the following directives:-
1. The impugned order dated 25.09.2012 is quashed and set aside being excessive and bad under law and the case is remanded to the disciplinary authority for taking a fresh decision on the quantum of punishment in the light of our discussion within.
2. The disciplinary authority is directed to complete the directions, as ordained above, within a period of two months from the date of receipt of a certified copy of this order.
3. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/