Saturday, November 3, 2012

TA no 222 / 2009 on ????/////-2011


          TRANSFERRED  APPLICATION No. 222 OF 2009

TODAY, THIS THE ............... DAY OF ............., 2011


HON'BLE SHRI V. AJAY KUMAR           ...                MEMBER (J)

Gayathri Bai,
W/o N.C. Narayana Rao,
Aged 55 years,
R/at No.9/2, 2nd Cross, 1st Floor,
Sivanchetty Garden,
Opp: Telephone Tower,
Bangalore – 560 042                                       ...                                 Applicant

(By Advocate Shri A.R. Holla)


1. Director,
   National Institute of Mental Health &
   Neuro Sciences (Deemed University),
   Bangalore-560 029.

2. Board of Management,
   National Institute of Mental Health &
   Neuro Sciences (Deemed University),
   By its Non-Member Secretary and
   Bangalore-560 029.                          ...                                 Respondents

(By Advocate Shri P.S. Rajagopal for Respondents)


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

            This matter was originally filed in the Hon'ble High Court of Karnataka as Writ Petition No.17967 of 2007 (S) on 15-11-2007 and on transfer to this Tribunal, this Bench has re-numbered it as T.A. No.222/2009 and taken under Section 19 of the Administrative Tribunals Act, 1985.  The prayer is for quashing the penalty imposed vide
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orders No.NIMH/PER(5)/GB/P.F./2005-06, dated 3-6-2005, issued by respondent No.1 Annexure-'F'  and confirmed by the Appellate Authority's order vide NIMH/PER(5)/GB/ PP/2005-06, dated 1-12-2005 Annexure-'H'.  The second prayer is for treating the period of suspension as duty period with consequential benefits of duty salary and increments.  The applicant also prayed for an interim order to restrain the respondents from making any recovery from her salary in pursuance of the Annexure-F and Annexure-'H' pending disposal of the OA.  However no interim stay was granted and as seen from her representation dated 10-11-2006 quited at para 2 of reply statement, the excess payment of subsistence allowance over what was due towards leave has already been recovered.  

2.         The brief facts are that the applicant was first appointed as LDC on 25-10-1982, then promoted as UDC with effect from 3-5-1995.  She was given a charge memo dated 27-6-2003 (Annexure-'A') under Rule 14 of the CCS (CCA) Rules, 1985.  The charge memo mentions thirteen instances alleging insubordination, grumbling, lack of devotion to duty, leaving the work-station, etc.  As a consequence to this charge memo, and not being satisfied with her preliminary reply, by order dated 29-7-2003, vide Annexure-'B', she was placed under suspension.  Thereafter another complaint was made by her superior Dr. Suresh Chandra on 22-7-2003 vide Annexure-'D',  resulting in a second charge memo issued vide Annexure-'C', dated 12-8-2003.

3.         The Disciplinary Authority called for her explanation for the alleged charges and not being satisfied with the explanation given by her, he ordered enquiry for major penalty and appointed Enquiry Officer, whose report was received on 10-01-2005, holding that all charges are proved. The enquiry was concluded on 28-02-2004 and after giving one more opportunity to explain, the Disciplinary Authority passed an order on   3-6-2005 imposing a penalty.  The Disciplinary Authority has recorded the details about
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charge sheet, etc. in the preamble to his order dated 3-6-2005 as below:
            "Hence, based on the above facts, articles of charge were framed vide this  office memorandum No.NIMH/PER(5)/gb/596/2003-04, dated 12-8-2003 and the charged official submitted her written statement of defence vide her letter dated 13-9-2003 wherein she denied all the charges framed against her.  Hence, not satisfied with her reply it is decided to inquire into the charges framed in memorandum dated 27-6-2003 & 12-8-2003, Inquiry & Presenting Officers were appointed and communicated vide this office orders dated 15-9-2003 &            20-3-2004.  A detailed inquiry was conducted on 30-9-2003, 22-10-2003,             4-11-2003, 9-6-2004, 14-7-2004, 19-7-2004, 26-7-2004, 26-7-2004, 29-7-2004,          4-9-2004, 24-8-2004, 21-9-204 & on 28-9-2004.  Enquiry report and findings were submitted on 10th January, 2005.  According to the findings, all the charges levelled against her have been proved.

Further, in the order he recorded that even though the action was initiated for imposing the major penalty, he would take a lenient view and impose a minor penalty under Rule 11(4) of CCS (CCA) Rules, 1965. 
"The Undersigned, Disciplinary authority, has gone through all the above mentioned records of Smt. Gayathri Bai, Upper Division Clerk (under suspension).  On perusal of the above records and the inquiry report dated 10th January 2005, the charges framed against Smt. Gayathri Bai, Upper Division Cerk and analysed the evidence with reference to the charge and considered the written briefs of Presenting Officer and the report of Inquiry Officer and after detailed examination of the matter, it became clear that the charge levelled against Smt. Gayathri Bai is proved.  However, taking a lenient view, and also to give her an opportunity to correct herself and her work style, imposing a major punishment is reconsidered and it is decided to impose minor penalty under Rule 11(iv) of C.C.S. (C.C.A) Rules, 1965 and the punishment of withholding two increments with cumulative effect is herewith imposed and also the Undersigned to have made the order of suspension in exercise of the powers conferred by clause (c) of sub-rule 5 of Rule 10 of the Central Civil Services Classification, Control & Appeal Rules, 1965, hereby revokes the said order of suspension of Smt. Gayathri Bai, Upper Division Clerk, with immediate effect."

Accordingly, he ordered withholding of two increments with cumulative effect  and the applicant's suspension  was also revoked.  The period of suspension from 29-7-2003 till the date of reporting back to duty was ordered to be treated as leave due (Annexure-'F').  The applicant reported back to duties on  7-6-2005.

            An appeal was preferred to the Appellate Authority viz., Board of Management,
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NIMHANS, dated 15-7-2005 (Annexure-'G') which came to be rejected by order dated   1-12-2005
4.         Under these situations, the applicant prays for treating the suspension period as duty and other consequential benefits. 
Issue of delay:-           It is seen from the reply statement that the respondents have pointed out to the delay in filing the WP, which was filed on 15-11-2007.  The order of the Appellate Authority was communicated to her on 1-12-2005. Further,  the matter was transferred from the Hon'ble High Court to this Tribunal on 23-3-2009 and the matter actually came up for final hearing on 1-12-2010. During the entire period the respondents have not pressed the point of delay, but proceeded to argue on merits.  Therefore, the delay is now irrelevant, it is equivalent to being condoned and we have heard the OA on merits.

5.         The consequences of penalty are as below:

(i)         While so rejecting the appeal, the Board of Management also suggested the authorities to consider her request for second ACP (Annexure-'H'). The same had been earlier placed before the DPC on 23-9-2003 and it was ordered that her case would be considered only after completion of the punishment period (Annexure-'K').

(ii)                The applicant made a request dated 7-1-2006 (Annexure-'J') for sanctioning of annual increments during the period of suspension.  However, this was not considered.
(iii)              Further, as per the office order dated   19-4-2006,  (Annexure-'K') the various types of leave available to her credit were adjusted and in the end Extra Ordinary Leave for 130+145=275 days had to be sanctioned for want of any other
leave to her credit. 

In view of the long period of extra ordinary leave, the subsistence allowance already paid to her was more than the leave salary which had to be recovered. She gave an application dated 10-11-2006 (Annexure-'L') for not causing any recovery which was also rejected on 7-12-2006 (Annexure-'M') and the recovery has since been made.  
            In view of all this, the applicant prays for :

(i)                  Issuance of a writ of certiorari or any other appropriate writ or order or direction and quash both the orders No.NIMH/PER(5)/GB/P.F./2005-06, dated   3-6-2005, issued by respondent No.1, Annexure-F and NIMH/PER(5)/ GB/PP./2005-06, dated 1-12-2005, issued by respondent No.2 Annexure-H,

(ii)                direct the respondents to treat the intervening period from the date of her suspension, 29-7-2003 till the date of her reinstatement on 6-6-2005, as on duty and extend consequential benefits to the petitioner accordingly including full salary and allowances during the suspension period and

(iii)              pass such other order as deemed fit having regard to the facts and circumstances of the case.

6.         The grounds mentioned in the OA for the prayer of treating the suspension period with full duty salary and increments are as below:

6.1       After due enquiry, instead of the proposed major penalty, the penalty actually imposed was a minor penalty viz., stoppage of two increments with cumulative effect.  It is the claim of the applicant that as per the settled position of law whenever the proceedings initiated for major penalty actually results in minor penalty, the period of suspension must be treated as duty period.  Hence, the order at Annexure-'F' treating the period of suspension as leave to the extent admissible and treating the balance being Extra Ordinary Leave is bad in law.  However, the learned counsel has not cited any case law about suspension period.

6.2.      The second set of grounds is for setting aside the enquiry itself for the reason that:
(i)                  a copy of the enquiry report has not been furnished to the applicant before imposing the penalty (para 8(i) of the OA).
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(ii)                During the enquiry, the Enquiry Officer has not examined the applicant as per the procedure prescribed under Rule 14 (18) of CCS (CCA) Rules, 1965. Hence, the enquiry is vitiated (para 8(ii). 

(iii)              The enquiry documents were not introduced through witnesses and their contents were not proved (para 8(iii). 

(iv)              The Appellate Authority has not considered any grounds extended by the applicant, but has merely passed the order without proper consideration (para 8(iv). 
(v)                Both the orders of the Disciplinary Authority as well as of the Appellate Authority are not speaking orders (para 8(v). 

6.3       The OA also mentions that the applicant had complained about sexual harassment caused to her by her superior Dr. J. Suresh Chandra, i.e., the same officer at whose complaint the 2nd charge sheet was given. However, we notice that nothing more than this one sentence has been stated in the whole OA.  Annexure-XI of the reply statement is a copy of one handwritten complaint by applicant dated 29-7-2003 which makes only a cursory remark about protecting working women from sexual harassment, but no specific instance of any harassment.  No rejoinder is filed.   So, we do not consider it necessary to delve upon that aspect.

7          The learned counsel for the applicant has relied upon the following judgments in support of his claim.
            7.1.   Decision of the Supreme Court in the case of  Ministry of Finance & Ors. Vs. S.B. Rameh in Civil Appeal No.3091 of 1995 AISLJ – 1998(2)67 regarding the procedures and provisions to be followed by the Inquiry Officer. 

            The issue in the above cited case was ex-parte proceedings.  In the case on hand, the applicant has participated in the inquiry on several dates.  Hence it is not the matter of exparte decision.
7.2              Decision of the Supreme Court in the case of Dharampal Arora Vs. Punjab
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State Electricity Board  & Anr. in Civil Appeal No.5162 of 2006 reported in AISLJ XI-2007(3)251.
In this case, the Hon'ble Supreme Court in para 4 has observed as below:

"4..........  The findings of the Courts below on issue No.1 are thus reversed and it is held that stoppage of annual grade increment with cumulative effect is a major punishment and the same, in the present case, having been inflicted without holding a regular inquiry in terms of Regulation 8 of 1971.  Regulations cannot legally be sustained.  The suit of the plaintiff-appellant is decreed to this extent."

            In the present case, the regular inquiry was held following the due process of law, and the Inquiry Officer has held that charges were proved.  Moreover, the stoppage of annual increment with cumulative effect is an important issue.   Whereas Rule 11 (iv) of CCS (CCA) Rules, 1965, which is for a minor penalty states only as below
"11 (iv) withholding of increments of pay"
thus, it does not state anywhere that for a minor penalty, the stoppage of increment should be without cumulative effect.  The citation (supra) is in disagreement with the stated rule and specifically mentions that any stoppage of increments with cumulative effect should be treated as a major punishment.  Hence, we look into the stand taken by the applicant.  The applicant has nowhere claimed that the punishment inflicted on her is a major punishment.  It suits the applicant to agree with the Disciplinary Authority's order and accept the punishment as a minor penalty because only then the applicant can agitate that the suspension period should be regularised as duty period.  We would also like to mention that even if it is a case of the applicant that the inquiry is vitiated because no inquiry report was supplied to her, it was also possible for her to obtain a copy of the inquiry report under the RTI Act and produce along wth OA, which she has not chosen from the date of the order i.e., 3.6.2005 till today.

7.3       Case of R.K. Singh Vs. Union of India & Ors. - AISLJ 1996(2)(cat) 460.

            In this case, the Patna Bench of CAT in OA No.55/100\\993 at para 13 has
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observed as under:
"13.  Rule 27 of the CCA Rules, 1965 deals with 'Consideration of Appeal".  Sub rule (2) of Rule 27 which is relevant in this case is reproduced:

(2)                In case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider:-

(a)        Whether the procuedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
13.1.......                     It is incumbent upon the appellate authority discharging quasi-judicial functions to consider (i) whether the procedure laid down in these rules have been complied with and if not, whether such non-compliance has resulted in violation of provisions of the Constitution of India, or in the failure of justice; (ii) whether findings of the disciplinary authority are warranted by the evidence on record and whether penalty imposed is adequate, inadequate or severe and pass orders........"

This will be dealt with by us in para 9 below.

8.                  On the other hand, the learned counsel for respondents has relied on the following four judgments in support of his contention:-
1. (2009) 13 SCC 102 – Union of India & Ors. Vs. Bishamber Das Dogra in Civil Appeal No.7087 of 2002

2.                   (1980) 3 SCC 309 – Union of India  & Ors. Vs. R.K. Tahiliani in Civil Appeal No.2008 of 978 and Union of India & Ors. Vs. M.M. Singh in Civil Appeal No.850 and 2008 of 1978.

3.                   (1980) 3 SCC 304 – Sunil Kumar Banerjee Vs. State of West Bengal & Ors. In Civil Appeal No.1277 of 1975

4.                   AIR 1965 Supreme Court 241 (1) – C. Beepathuma & Ors. Vs. Velasari Shankaranarayana Kadambolithaya & Ors. in Civil Appeal No.446 of 1960.

Out of above we find two citations would be sufficient to adequately answer the legal points raised by the learned counsel for the applicant.
            In the Hon'ble Apex Court in Civil Appeal No.7087 of 2007 in the case of Union of India & Ors. Vs. Bishamber Das Dogra reported in (2009)13 SCC 102,  it was a case
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in which the major issue before the Supreme Court was
what is the effect of non-supply of inquiry report, and
how far its doctrine of prejudice help the delinquent employee
and it was held that the delinquent has to establish real prejudice caused by non-furnishing of enquiry report – No such attempt made at any stage by respondent employee in the said civil appeal.  The judgment has elaborated as below:-
            "6.        .......  The learned Single Judge vide judgment and order dated 16-7-1991 allowed the writ petition, quashing the order of punishment on the ground that the copy of the enquiry report was not furnished and the respondent employee was not given the opportunity to file the objections to the same.  More so, his past conduct could not have been taken into consideration while imposing the punishment.  Aggrieved, the present appellants filed FMAT No.1370 of 1992 before the Calcutta High Court which was dismissed by the Division Bench by judgment and order dated 31-1-2002.  Hence, this appeal.
                        9........ only two questions arise for our consideration:
Whether the delinquent employee is not supposed to establish de facto prejudice in case the enquiry report is not supplied to him before awarding punishment?
(1)                Whether the order of punishment would be vitiated if the disciplinary authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment?
"21........  It is for the delinquent employee to plead and prove that non supply of such report had caused prejudice and resulted in miscarriage of justice.  (emphasis supplied)  If he is unable to satisfy the court on that point, the order of punishment cannot automatically (emphasis in original) be set aside."
21.               Thus, in view of the above, we are of the considered opinion that in case the enquiry report had not been made available to the delinquent employee it would not ipso facto vitiate the disciplinary proceedings as it would depend upon the facts and circumstances of the case and the delinquent employee has to establish that real prejudice has been caused to him by not furnishing the enquiry report to him.

2.                  Decision of the Supreme Court in Sunil Kumar Banerjee Vs. State of West Bengal & Ors. - (1980) 3 SCC 304.:
            Para 3:.....
....It is now well established that mere non-examination or defective examination under Section 342 of the 1898 Code is not a ground for interference unless prejudice is established, vide K.C. Mathew v. State of Travancore-Cochin;
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Bibhuti Bhusan Das Gupta vs. State of W.B.  We are similarly of the view that failure to comply with the requirements of Rule 8 (19) of the 1969 Rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice.  In this case the learned Single Judge of the High Court as well as the learned Judges of the Division Bench found that the appellant was in no way prejudiced by the failure to observe the requirement of Rule 8(19)."

            Thus, we find that the applicant's mere claim that copy of inquiry report was not supplied, has to be supported by stating how actually prejudice was caused to her even when the Disciplinary Authority has taken a lenient stand to impose minor penalty.

9.1       We have gone through the reply statement and also heard both the counsel at length.   It is seen that the Disciplinary Authority has issued charge sheet under Rule 14 of C.C.S.(C.C.A.) Rules, 1965, which might have resulted in imposing major penalty if charges were proved.  However, we find that the Disciplinary Authority, after carefully considering the inquiry report, has recorded in Annexure-'F' that all the charges have been held as proved.  Even then he has decided to take a lenient view and proceeded to impose only a minor penalty for which the whole procedure of chargesheet and the departmental enquiry is not mandatory.  Hence, the ground mentioned at para 6.2 supra do not survive.  Further, the Disciplinary Authority has proceeded to impose only a minor penalty under Rule 11 (iv) of CCS (CCA) Rules, 1965 and the pubnishment of withholding two increments with cumulative effect was ordered.  Under such a situation, the Disciplinary Authority's order regarding how to treat the period of suspension appears reasonable.  Therefore, we feel no need to interfere with his order. 
9.2 As far as the Appellate Authority's order is concerned, we accept what is recorded by the Appellate Authority that
".... During the consideration of  your appeal, the Director and Vice-chancellor, NIMHANS and Disciplinary Authority in your case has withdrawn from the proceedings with a view to facilitate free and fair deliberations.  On careful consideration of the material available on record

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Board of Management has felt that they found no ground to alter the punishment imposed by the Disciplinary Authority and hence decided to confirm the punishment imposed by the Disciplinary Authority, however resolved to suggest to the authorities to consider your request for second financial upgradation under "Time Bound Promotion Scheme" as per Rules and in accordance with provisions of Time Bound Promotion Scheme."

Therefore, it is not proper to say that the Appellate Authority has not applied their mind. Thus, the prayer to quash Annexures 'F' and 'H' is rejected.

10.1     Since the period of suspension was treated as leave of any kind available at the credit of the applicant and since 275days of leave was granted as Extra Ordinary Leave without pay, hence the recovery of the subsistenace allowance paid was ordered and the same was implemented as seen from Annexure-A/1.  We find no need to interfere with that either.

10.2     The order at Annexure-'K' where the adjustment of her leave is shown mentions that since her period of Extra ordinary leave begins only from 24-8-2004, therefore,  the increment which had become due on 1-10-2003 but was not given because of her suspension from 29-7-2003 is allowed.  However, since she is physically not on duty on 1-10-2003, the effect of the increment will remain notional and will be actually accrue to her from the date of her joining duties, i.e., from 7-6-2005. As for the next increment which would have become due on 1-10-2004, it falls on a day when she is not on any admissible leave, but on EOL.  Hence, the order at Annexure-'K' is silent about this increment.  The learned counsel for applicant has argued that the applicant is entitled to her increment from 1-10-2004 in the same way as her increment with effect from 1-10-2003 is granted.  However, we do not agree with this contention.  The increment due on 01-10-2003 is on a different footing as compared to the increment which due on          
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01-10-2004 because of the difference in the status of her leave.  She was on leave admissible on 01-10-2003, but, on EOL on 01-10-2004.  Hence, we feel that the Disciplinary Authority is correct in treating her as eligible to draw only one increment which became due on 01-10-2003 and that too notionally, and the actual benefit gets deferred upto 7-6-2005.

10.3     The benefit of ACP:  Regarding this, the Appellate Authority, viz., the Board had already asked the department to consider it as per Rules.  It is seen that the DPC held on 23-09-2003 had examined her case and rejected on the ground that during the period of punishment, no ACP benefits can be given.  However, this consideration was applied on a day when she was actually under suspension.  The subsequent order dated 19-4-2006 at Annexure-'K' which regularises her period of suspension gives her the benefit of admissible leave upto 23-8-2004.  Hence, the decision taken by the DPC held on 23-09-2003 deserves to be reconsidered.  Further,  We are of the opinion that during the period beyond 7-6-2005 in which the applicant is undergoing punishment (of stoppage of increment) is nonetheless the period during which she is rendering her service to the department.  Hence, that service must be counted towards ACP.  Her initial appointment is on 25-10-1982.  The period of completion of 24 years will be on 25-10-2006. However, the period of EOL will not be counted.  Thus, she becomes due for 2nd ACP on 01-07-2007.  Her punishment period also comes to an end on 1-7-2007 on which her next increment is released.  Therefore, we hold that she can be considered for 2nd ACP with effect from 1-7-2007 based on ACRs  as per rules.  We direct the department to decide this issue within three months from the date of this order.

11.              The OA is partly allowed to the extent that the claim for 2nd ACP will have to be

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reconsidered with effect from 1-7-2007 as directed above.  No order as to costs.

            (V. AJAY KUMAR)                                                   (LEENA MEHENDALE)     
                 MEMBER (J)                                                                     MEMBER (A)


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