Saturday, November 3, 2012

OA No. 240 OF 2010 on ???????/-2010



DATED  THIS THE .........DAY OF .............., 2010



Mr. C.S. Raghavendra Rao,
S/o Late B. Srinivasa Rao,
Aged 51 years,
Working as Technician,
515 Army Base Workshop,
Ministry of Defence,
Halasuru, Bangalore-08,
R/a No.67/D, "sRINIVASA", II Main,
Vittal Nagar, Chamarajapet,
Bangalore.                                                       ....                                Applicant

(By Advocate M/s. Panchajanha Associates)


1. Union of India,
    Rep. By the Secretary to the Govt. of India,
    Ministry of Defence, South Block,
    New Delhi – 110 011.

2.  The Director General of EME,
    (MGO's Branch),
    Army Headquarters, DHQ Post,
    Kashmir House, New Delhi-110 011.

3.  The Commandant and MD,
    515 Army Base Workshop,
    Ministry of Defence, Halasuru,

4.  The SE(SG)&D.G.M(MED) &
    the Enquiry fficer, 515 Army Base Workshop,
    Ministry of Defence,
    Halasuru, Bangalore-08.

- 2 -

5.  The Deputy General Manager (CED) &
    The Presenting Officer,
    Ministry of Defence,
    Halasuru, Bangalore-08.                                         ....                    Respondents

(By Advocate Shri M.V. Rao,
Sr. Central Govt. Standing Counsel)


Hon'ble Smt. Leena Mehendale, Member (A) :

            The applicant working as a Technician MCM at the Army Base Workshop, Bangalore was issued a charge sheet on 6.4.2010 (Annexure-A/) having eight articles of charges, many of them being about the mannerism and insurbinate nature.  Respondents No.4 and 5 were appointed as the Enquiry Officer and Presenting Officer respectively to enquire into the charges and the applicant claims that there was no intimation to him about their appointment.  However, he received a notice of fixing the enquiry on 26.5.2010, in response to whih, he submitted a representation on 24.5.2010 to the Disciplinary Authority as per Annexure-A/4, questioning the authority of Respondent No.3, i.e., the Disciplinary Authority himself and Respondent No.4, i.e., the Enquiry Officer and intimating therein his intention not to appear before the Enquiry Officer on the 26th May, 2010.

2.         On the other hand, the Inquiry Officer, after giving due notices to the applicant on every occasion, has proceeded with the enquiry on 26.5.2010, 8.6.2010 and the third date of proceedings was fixed for 22.6.2010 which was also intimated to the applicant as being the last date for enquiry.  The applicant submitted his second representation to Respondent No.3, i.e., the Disciplinary Authority on 4.6.2010 (Annexure-A/8), in which he made lot of allegations against both the Presenting Officer and the Inquiry Officer on the ground of bias and thereafter he also approached this Tribunal for a stay to the enquiry proceedings by way of the present OA and was granted an interim stay on 17.6.2010 which had the effect of staying the enquiry proceedings which the Inquiry Officer had fixed up for final stage of hearing.

                                                                        - 3 -
3.         The applicant has prayed that this Tribunal may direct the Respondents to take an appropriate decision on the representations made by him as per Annexures-A/4 and A/8 mentioned above before proceeding with the enquiry.  He has also prayed that the Tribunal may issue necessary directions with regard to the change of Disciplinary Authority and the Inquiry Officer.

4.         We have heard the learned counsel for the applicant at great length and also examined the two representations made by the applicant at Annexures-A/4 and A/8.  We have carefully heard  his arguments and grounds for the reliefs sought in the OA.  We have also considered the reply statement as well as the arguments of the learned Sr. Central Govt. Standing Counsel for Respondents.

5.         As pointed out by the learned counsel for respondents, we find that the applicant has proceeded in the wrong direction in many ways.  First of all, the charge sheet issued at Annexure-A/1 makes it very clear that he has to specifically admit or deny the articles of charges in writing.  He was also informed about the documents relied and the witnesses through whom the charges will be examined.  He was further informed that he can also submit his own documents to rely upon or produce more witnesses in his defence.  Thus, the first step in a disciplinary enquiry proceeding seems to have been properly completed by the Disciplinary Authority.   It is pertinent to note that such aspect as above are prescribed as a standard format of Memorandum of Charges to be given to the charged officer who is thereby called upon to submit his written statement of defence within ten days. 

6.         We find that the applicant has not availed of this first opportunity.  He did not give his defence statement within ten days, or even till today.  Instead, he has submitted a representation on 24.5.2010 (Annexure-A/4) wherein at para 3(b), he has questioned the powers of the Disciplinary Authority.  The charges against him are related to his use of abusive language, insubordination and untrustworthiness and incompatibility with the office procedure and not maintaining proper peace and decorum in the office.  In one of the listed documents, a reference is made to the abusive language that he has used against the Disciplinary Authority himself to the higher authorities and the same is a matter of one of the
                                                                        - 4 -
charges.  The applicant has tried to claim this one Article of charge as a ground for asking the Disciplinary Authority to desist from functioning as Disciplinary Authority.  It is pertinent to note that the Disciplinary Authority is an administrative authority whose prime job is to ensure that the wheels of the system are run smoothly and if any incidence of insubordination arises, it is his job to ensure that a proper and judicious enquiry is made in order to ascertain the facts and take suitable action.  As per CCS (CCA) Rules, the Disciplinary Authority cannot be changed unless his superiors on being given representation and on having considered all aspects of justice and office expediency have passed a specific order to that effect.
7.         On the other hand, the Disciplinary Authority appoints the Inquiry Officer whenever conditions so necessitate. The Inquiry Officer is the quasi judicial authority. When they are appointed as Inquiry Officers, there is a presumption of their transparency and impartiality and there is also a presumption that the enquiry and  the report of the enquiry are done with proper norms of judicious decision making.  The Presenting Officer is like a counsel representing the case of the department.  Hence, both these officers cannot be impleaded if and when any disciplinary enquiry has to be challengd.  Ordering a disciplinary enquiry is an adminstrative decision taken by the Disciplinary Authority.  Similarly, the final award of penalty as an outcome of the enquiry is also an administrative action taken by the Disciplinary Authority.  When the DA receives the report, he/she has to study it judiciously, apply mind, give yet another opportunity to the charged officer and only then he/she comes to the stage of passing final order along with penalty.  Thus, all actions of the DA and the DA alone are subject of a judicial appeal or review,  but, not the action of the Inquiry Officer,  who is discharging a quasi judicial function.  Be that as it may, when a bias or a motive is attached to the enquiry proceedings, the applicant cannot agitate this point before the Inquiry Officer himself.  He has to agitate this point only before the Disciplinary Authority who may, in consideration of such representation,  change the Inquiry Officer.  If the DA does not respond to him favourably, he can appeal against the DA before the higher authorities, who are normally acting as Appellate Authority.  However, if

                                                                        - 5 -
no such relief is given to the applicant and the enquiry proceeds, the cause of action arises not against the Inquiry Officer, but only against the Disciplinary Authority. 

8.         As pointed out by learned Counsel for responents we find that the applicant has also not availed this opportunity as he has not made any representation to any officer  above the office of the Disciplinary Authority to seek the remedy of getting the enquiry officer changed. 

9.         The applicant has alleged that the Inquiry Officer is biased against him.    In support he has relied on three aspects which are untenable.  First he has objected to the prompt action taken by the Inquiry Officer and would like us to believe that prompt action means bias against him,  We cannot  accept this meaning.  We do not find any unreasonable haste in the action of the Inquiry Officer in fixing the dates of enquiry on 26.5.2010,  8.6.2010 and 22.6.2010.  Further on all these dates, as the applicant has remained absent, he has also taken care to intimate to the applicant the next date of hearing.  The second aspect which the applicant has raised is by questioning the non-action of the Disciplinary Authority in response to the Annexure A4 and A8.  Both of them are addressed to the Disciplinary Authority namely the Commandant and MD, Army Base Workshop at Bangalore, who   forwarded them to the Inquiry Officer and the Inquiry Officer has further endorsed them to the presenting officer.  We find nothing objectionable in the action of Inquiry Officer and no bias.  It is  the Disciplinary Authority who has to take action on  Annexure A4 and A8 and not  the Inquiry Officer.   Therefore, when he received them he has just  endorsed them to the presenting officer thereby leaving it to him if  at all  to make any use of  these documents regarding the charge.     The Inquiry Officer would take cognizance of said representation of Annexure A4 and A8 only if the presenting officer wants to refer to them or the applicant himself wants to refer to them as a part of enquiry documents.  Till then the  Inquiry Officer is not required to take any action.    The third aspect averred by the learned Counsel for applicant is that the Inquiry Officer is  subordinate  of the disciplinary authority.  This also cannot be considered as an indication of bias or objectionable.  Generally every disciplinary
                                                            - 6 -
authority is bound to appoint one of his subordinates only as Inquiry Officer whose job will be to go through all the details of the case, give appropriate chance to the charged officer to defend himself and prepare his judicious report in detail so that the disciplinary authority is facilitated through this detailed enquiry for taking final action in the matter.    Just because the Inquiry Officer is subordinate to the Disciplinary Authority, cannot mean he will write a report as per the wishes of the Disciplinary Authority by throwing  away his  own judgements about the  right or wrong done by the applicant.  Thus we find it difficult to accept the theory of bias shown by Inquiry Officer against the applicant. 

10.       The learned Counsel for the respondents in his MA No.272/2010 has rightly pointed out that the applicant has not even made any representation or filed any defence statement to the Memorandum of Charges dated 06.04.2010.  He only avoids the inquiry by making uncessary representations without any basis.   Further in all his representations he also refers to himself as Union Leader, which is objectionable in a D.E. If the contentions of Annexure A4 and A8 are perused, the applicant is not entitled for any reliefs before this Hon'ble Tribunal because cause of action by Tribunal has yet to arise.  Such representations at Annexure A4 and A8 are made only to prolong and protract the inquiry proceedings. The applicant will have all opportunities to defend during the proceedings and his allegations of bias or malafides are only after thought and imaginary.  The learned Counsel therefore requests, in the interest of administrative discipline,   that the OA may be dismissed of and enquiry may be allowed to continue.  He has also argued that the validity of Articles of charges cannot be gone into judicially except in exceptional cases  and the present case does not warrant such an exception.  He has also pointed out at Annexure R3 an unconditional oppology tendered by the present applicant for having made unfounded frivolous and malacious allegations against some officers and has argued that the present representation at Annexure A4 and A8 are also not so much in the spirit of representation as in the spirit of allegation.  He prayed that they  need not be taken cognizance of.

                                                                        - 7 -
11.                   The learned Counsel for the respondents has further pointed out that even if the applicant may not have received any notice of enquiry or of the appointment of the Inquiry Officer from the Disciplinary Authority himself, the Inquiry Officer has taken up  the enquiry only after duly informing the applicant and thus this aspect of the procedure can also be treated as complete.  He has quoted Rule 14 of CCS (CCA) Rules 1965,  which laid down that it is  the Inquiry Officer who will send a notice to the charged officer to present himself for a preliminary hearing at the appointed place on a date and time.  If    the charged officer does not submit his written defence statement within the time specified or does not appear before the Inquiry Officer or otherwise fails or refuse to comply with the provisions of the rules, the Inquiry officer may hold the Inquiry ex-parte. 

12.       On hearing both the sides, we find no merit in the case.  The matter is premature.  The department must be allowed to proceed with the departmental enquiry.  If applicant has any grievances against DA, then he must approach the Appellate Authority and not the DA himself.  It is for the Appellate Authority to grant the request or otherwise after considering the request.         The application is therefore dismissed.    The interim stay against the proceedings of the departmental enquiry is vacated.  No order as to costs.

            (LEENA MEHENDALE)                              (N.D.RAGHAVAN)
                        MEMBER(A)                                     VICE CHAIRMAN






          Draft judgement/order in the above said OA is placed below for approval /signature.

                                                                   (LEENA MEHENDALE)


No comments:

Post a Comment