O.A. No. 674 of 2015. Case: Suresh Kumar Mehra Vs Union of India and Ors.. Central Administrative Tribunal
| Case Number | O.A. No. 674 of 2015 |
| Counsel | For Appellant: Yogesh Sharma, Advocate and For Respondents: C. Bheemanama, Advocate |
| Judges | Shekhar Agarwal, Member (Ad.) and Raj Vir Sharma, Member (J) |
| Issue | Administrative Tribunals Act, 1985 - Sections 17(4), 19; Code of Civil Procedure, 1908 (CPC) - Order XII Rule 1, 2, 2A, XII; Constitution Of India - Articles 309, 311(2), 320(3)(c); Indian Evidence Act, 1872 - Sections 3, 58 |
| Judgement Date | April 06, 2017 |
| Court | Central Administrative Tribunal |
Order:
Raj Vir Sharma, Member (J), (Principal Bench At New Delhi)
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By order and in the name of the President, Memorandum dated 25.6.2010 was issued by respondent No. 1 proposing to have an inquiry held against the applicant under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as "CCS (CCA) Rules". Statement of articles of charge, statement of imputations of misconduct, list of documents by which the articles of charge were proposed to be sustained, and a copy of the first stage advice of the Central Vigilance Commission (CVC) for instituting major penalty proceedings against the applicant were also enclosed with the Memo dated 25.6.2010, ibid. A blank list of witnesses was also enclosed with the Memo dated 25.6.2010. The applicant was called upon to submit a written statement of his defence, and also to state whether he desired to be heard in person. The alleged misconduct in respect of which the inquiry was proposed to be held against the applicant pertained to the period from April 2004 to February 2010 when he worked as Superintending Engineer (Electrical), BSNL, W.B. Circle, Kolkata. There were six articles of charges against the applicant. The applicant submitted his reply dated 16.8.2010 denying all the charges framed against him. In his reply dated 16.8.2010, ibid, the applicant desired to be heard in person and also required copies of all the documents mentioned in the list of documents enclosed with the Memo dated 25.6.2010, ibid. Thereafter, Inquiring Authority (IA) and Presenting Officer (PO) were appointed. Nomination of the Defence Assistant was admitted by the applicant. Some of the additional documents requested by the applicant to defend himself in the departmental enquiry, vide his letters dated 30.3.2011 and 30.4.2011, were furnished to him. The documents at Sl. No. 2 of letter dated 30.3.2011 and at Sl. Nos. 2, 4, 6, 8 and 10 of the letter dated 30.4.2011 of the applicant were not made available by the PO as such records were not available in the office of the custodian authority, and therefore, the same were not supplied to him. The listed documents were marked as Exhibits P-1 to P-30 and taken on record of the inquiry. The defence documents were marked as Exhibits D-1 to D-29 and taken on record of the inquiry. Though the applicant requested for examination of three witnesses to explain and clarify the departmental procedure to disprove the charges, vide his letter dated 30.4.2011, yet the IA allowed only Sri T.K. Haldar, SE (E), CTD, Kolkata, to be the Defence Witness. Accordingly, the said Shri T.K. Haldar was examined during the departmental enquiry as DW 1. After evaluating the documentary evidence adduced both by the Department and the applicant, and the oral evidence of DW 1, as well as other materials available on record, the IA submitted its inquiry report holding that all the Articles of Charges were not proved. The advice from the Chief Vigilance Officer (CVO), BSNL, was obtained by the DA. The CVO, vide its letter dated 23.5.2013, advised that Article I was partially proved, and Articles V and VI of the charges were proved against the applicant. By order and in the name of the President, a disagreement note dated 31.7.2012, along with the inquiry report, was issued by respondent No. 1 stating Article I as partially proved, and Articles V and VI of the charges as proved, and calling upon the applicant to make a representation thereto. The applicant made a representation dated 5.9.2012 against the disagreement note. The materials available on record, including the applicant's representation dated 5.9.2012 against the disagreement note dated 31.7.2012, as well as the advice of the Union Public Service Commission (UPSC), vide its letter dated 23.5.2013, were considered. By order and in the name of the President, the order dated 14.8.2013 was issued by respondent No. 1 imposing on applicant the penalty of 'reduction to a lower stage in the time scale of pay by two stages for a period of one year with further direction that on expiry of this period the reduction will not have the effect of postponing his future increments of pay'. The UPSC's letter dated 23.5.2013, ibid, was enclosed with the punishment order dated 13.8.2013, ibid. The applicant filed a review petition dated 14.1.2014 against the punishment order dated 14.8.2013, ibid. By order and in the name of the President, order dated 16/21.7.2014 was issued by respondent No. 1 rejecting the applicant's review petition dated 14.1.2014 as being devoid of merit. Hence, the present O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the penalty order dated 14.8.2013 (Annexure A/1), Review order dated 15/21.7.2014 (Annex. A/2), UPSC Advice dated 23.05.2013 (Annex. A/1), Disagreement Note (Annex. A/6), Charge Sheet dated 25.6.2010 (Annex. A/3) and entire disciplinary proceedings declaring to the effect that the same are illegal, arbitrary, against the rules and against the principle of natural justice and consequently the applicant is entitled for all the consequential benefits including restoration of his pay with arrears of difference of pay and allowances with interest.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
1.1 In the above context, the applicant has contended, inter alia, that at the behest of the CVO, BSNL, the disciplinary proceeding was initiated by the DA against him on false and fabricated charges. The charges were vague and did not specify any misconduct on his part. After evaluating the materials available on record, the IA rightly arrived at the conclusion that the charges were not proved against him. The DA not only failed to apply its mind to the materials/evidence available on record, but also disagreed with the findings of the IA and issued the disagreement note solely on the basis of advice of the CVO, BSNL, stating Article I as partially proved and Articles V and VI of the charges as proved against him. The finding that Article I was partially proved and Articles V and VI were proved, was arrived at by the DA in the disagreement note before giving him an opportunity to explain the justifiability of the findings of the IA. Copy of the advice of the CVO, BSNL, on the basis of which the DA issued the disagreement note, was not furnished to him. He has been discriminated against by the DA inasmuch as no disciplinary action has been taken against Shri S.N. Mishra, the other member of the TPC. The DA did not consider the contentions raised by him in the representation made against the disagreement note. Copy of the advice of UPSC was not furnished to him by the DA before passing the order of punishment. The review petition was rejected by the DA without considering the grounds urged by him therein.
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In their counter reply, respondent Nos. 1 and 2 have stated, inter alia, that there was no infirmity in the charge-sheet. The report of the IA is only a guiding factor and not binding on the DA for deciding the charges. Taking comments from the CVO, BSNL, is an integral part of the disciplinary proceedings. The CVO is an institutional mechanism established by the Department of Personnel & Training to provide advice on the disciplinary matters. The allegations made by the applicant against the CVO are totally baseless. After considering the entire matter in true perspective, tentative findings were arrived at, and the disagreement note, along with the inquiry report, was issued to the applicant for making representation thereto. The DA did not take any final decision at that stage. As per Rule 32 of the CCS (CCA) Rules, 1965, the UPSC's advice was enclosed with the penalty order communicated to the applicant. The DA took into consideration the pleas and submissions of the applicant, and passed the penalty order. After considering all the relevant materials available on record and the grounds urged by the applicant in the review petition, the Reviewing Authority rejected the applicant's review petition. The disciplinary proceedings were initiated and conducted strictly as per the provisions of the CCS (CCA) Rules, 1965, for definite charges as conveyed in the charge sheet, and opportunity was given to the applicant at every stage to put up his defence. Thus, the grounds urged by the applicant are beyond the pale of judicial review.
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The counter reply filed on behalf of respondent No. 3, i.e., CVO, BSNL, contains more or less the same assertions as in the counter reply filed on behalf of respondent Nos. 1 and 2. It has also been stated that the DA, in order to form its opinion on the enquiry report, sought for the advice of the CVO, BSNL, on 12.12.2011. Accordingly, the CVO, BSNL, submitted a self contained note with details for disagreement with the findings of the IA in tabular statement, and opined that Article I of the charges stood partially proved, and Articles V and VI of the charges stood proved.
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In the counter reply filed on behalf of respondent No. 4, i.e., the UPSC, it has been stated, inter alia, that the UPSC is an advisory body and its advice was sought for in the case in accordance with the requirement of consultation with them as laid down in Article 320(3)(c) of the Constitution of India, read with Regulation 5(1) of the UPSC (Exemption from Consultation) Regulations, 1958. The basic tenet of provisions for seeking advice of the UPSC is to ensure that a case is assessed independently with the prime focus on upholding the principles of natural justice. The advice of the UPSC was tendered independently on the basis of all the relevant facts and circumstances of the case, findings of the IA, representations of the charged officer, the evidence on record, and...
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