CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
: BANGALORE
ORIGINAL APPLICATION No. 240 OF 2010
DATED THIS THE
.........DAY OF .............., 2010
HON'BLE SHRI N.D. RAGHAVAN ...
VICE-CHAIRMAN
HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)
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)
Vs.
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,
Bangalore-08.
4. The
SE(SG)&D.G.M(MED) &
the Enquiry fficer, 515 Army Base Workshop,
Ministry of Defence,
Halasuru, Bangalore-08.
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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)
O R D
E R
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.
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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
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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
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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
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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.
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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
sd.
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
: BANGALORE
ORIGINAL APPLICATION No. 240 OF 2010
Draft
judgement/order in the above said OA is placed below for approval /signature.
(LEENA MEHENDALE)
MEMBER(A)
HON'BLE VICE
CHAIRMAN
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