Saturday, November 3, 2012

XX OA NO.322 / 2010 incomplete here



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


Sri Rajeev Shrivastava,
S/o Late O.P. Shrivastaqva,
Aged about 47 years,
Defence Estates Officer,
Indian Defence Estates Service,
Karnataka & Goa Circle, T-56 Assaye Lines,
K. Kamraj Road, Bangalore – 560 042.               ...                     Applicant

(By Advocate Shri N.G. Phadke)


1. Union of India,
   Represented by the
   Defence Secretary,
   Ministry of Defence, South Block,
   New Delhi – 110 001.

2. The Director General,
   Defence Estates, Ministry of Defence
   Government of India,
   Raksha Sampada Bhawan,
   Palam Road, Delhi Cantt.,
   New Delhi – 110 010.

3. Shri Balsharn Singh,
   Director General, Defence Estates,
   Ministry of Defence, Government of India,
   Raksha Sampada Bhawan,
   Ullanbatar Marg, Delhi Cantt.,
   New Delhi – 110 010.                               ...                                 Respondents

(By Advocate Shri S. Prakash Shetty, Addl. Central
Govt. Standing Counsel for R-1 to 3)


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

            The OA is filed on 30-7-2010 under Section 19 of the Administrative
- 2 -
Tribunals Act, 1985, for quashing a charge memo against the applicant issued on 22-02-2010, Annexure-A/14.

2.         Brief Facts:-  The applicant was working as DEO (Defence Estates Officer), Karnataka and Goa Circle at Bangalore since 16.06.2008.  By impugned order No.5(2)/2010-D(Lab) (Annexure-A/14) issued by Respondent No.1, i.e., the Union of India, represented by Defence Secretary, Ministry of Defence, a charge sheet was issued to him for holding enquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.  There are 5 articles of charges all pertaining to his behaviour in the office in regard to one junior employee.  All allege that he acted in a manner unbecoming of a Govt. servant.

3.            Applicant has therefore prayed to quash the said memo dated 22-2-2010 (Annexure-A/14) for departmental enquiry.  He also prayed for interim relief by way of staying the proceedings of enquiry which was granted.  The applicant has a grievance against the then Director General, Defence Estates, who is impleaded as Respondent No.2 in official capacity and by name as Respondent No.3 (Shri Balsharn Singh), who has since retired on 31-10-2010. The Secretary Defence is impleaded, as Respondent No.1 in his official capacity.  The Disciplinary Authority is the President of India on whose behalf Respondent No.1 carries out the disciplinary proceedings.  Applicant claims that Respondent No.3 has been able to pursuade the Disciplinary Authority for charge memos against him.

4.            Applicant claims that there is a brief background to the present charge-
- 3 -
sheet.  Earlier, the applicant has survived two charge memos and one suspension order and the present charge sheet is the 4th event in the series. 
4.A.     The first charge sheet was served with a charge memo dated 6.8.2009. The brief charges therein were four namely:-
 1) Production of false medical certificate dated 10.7.2004,
2) Unauthorised absence for six days during July 2004 and 2 days in May, 2005,

3)  Writing a number of discourteous, disrespectful and impertinent letters against the superior officers in June 2005 and

4)  Failure to give intimation regarding a transaction pertaining to investment exceeding Rs.20,000/- for the financial year 2004-2005.

He challenged the same in OA No.66/2010, and memo was quashed by order of the Tribunal dated 03.02.2011. 

4.B.     In the meantime, the second charge memo dated 8.12.2009 was served on him.  The charge therein was that the applicant caused to issue various VIP references to the respondents for getting desired places of posting.  He challenged this memo in OA No.65/2009 and once again the 2nd charge memo was quashed by order dated 03.02.2011. 

4.C.     Again in the meantime, he was served with a suspension order dated 21.12.2009 which he challenged in OA No.01/2010 and which order was quashed by order dated 5.5.2010. 

4.D.     Now, the 4th event is the present charge memo which he again challenges with a prayer to quash the charge sheet.

4.E.     A continuum can be seen in the actions of Respondent No.3 that goes
- 4 -
back to the year 2004.  In the 1st charge sheet dated 6.8.2009, the statement of imputation of misconduct in support of the Articles of Charges framed goes to quote that an explanation was called from him by the then Principal Director, Defence Estates, Western Command (i.e, Respondent No.3) vide letter dated 14.7.2004, who subsequently became Director General at the time of issue of the charge sheet.  Thus a notice calling explanation given in 2004 is one of the actions which has culminated in framing one of the charges.  Other charges also pertained to the period 2004-05 for the purpose of charge sheet on 6.8.2009.

4.F.      Similarly, a show cause notice was issued on 4.3.2008 prior to issuance of the 2nd charge memo dated 8.12.2009, on the allegation of bringing VIP references are ranging from 2000 through 2004, 2006, 2007, last being 21.11.2007 for the purpose of the charge sheet which is issued on 8.12.2009.  The present charge sheet also seems to be a part of the same series in which  the Respondent No.3, who, by now, has become the Director General  has used certain instances of his office performance pertaining to May, 2009.

5.         Therefore, the main ground urged as quoted in para 5 of the OA is that Respondent No.3 has been causing harassment, humiliation and hardship to the applicant since be became Director General in the year 2007 and even prior to that, when the applicant had been directly under him at Chandigarh in 2003.  The hardship inflicted by Respondent No.3 is seen from such actions as with-holding TA bills, refusing EL, recovering penalty from salary, etc., when Respondent No.3 was his direct supervisory officer.  The harassment continued in bigger proportion when the 3rd Respondent became Director
- 5 -
6.         One immediate reason for the anger of Respondent No.3 is that the same Respondent No.3 had once threatened the applicant in 2005 with reference to his career and again in 2007 when he became Director General.  Hence, the applicant had complained to Respondent No.1 in his representation dated 8-1-2008.

7.         The charge memo has been timed so as to prevent the further promotion of the applicant due in 2010 and the charge sheet is issued on the recommendation of Respondent No.3, thus being illegal, discriminatory and with malice.

8.         The learned counsel for the applicant through several instances quoted in the OA would urge that the Respondent No.3 was the Director General of Defence Estates on whose submissions and recommendations, Rrespondent No.1, the Defence Secretary and the Disciplinary Authority has issued the charge sheet.  There has been a protracted acrimony between the applicant and Respondent No.3 which dates as back as 2003, the applicant has worked directly under Respondent No.3 as his junior on different occasions.  In one of such instance when the  Respondent No.3 was the Principal Director, DEO, Chandigarh, had recommended disciplinary action against the applicant.  But, the then Director General had not thought it fit to pursue it.   On becoming the Director General, Respondent No.3 tried to revive the matter, as a result the charge memos dated 6.8.2009 and 8.12.2009 mentioned in para No.4 supra got issued after a lapse of 2-3 years from actual event, but, coinciding with the time frame when the applicant was due for his higher promotion of Non
- 6 -
Functional Selection Grade.  Those two charge memos were quashed by this Tribunal on the ground that there was a delay of more than 20 months in issuing the charge sheet coupled with the fact that the charge memos were issued when the applicant was due for his promotion. 

9.         In the present OA also, it is the same Director General and the same Disciplinary Authority and there appears a certain malafide on the part of the Director General and thus the Disciplinary Authority was carried away by his recommendations. 

10.       It is also his argument that after the show cause notice was issued to him on 23.10.2009 (Annexure-A/1) and he replied to it by his letter dated 7.12.2009, (Annexure-A/4), despite his elaborate reply which runs into more than 100 pages along with several Annexures, the Disciplinary Authority, without considering the points raised by the applicant in his reply, has issued the charge sheet dated 22.2.2010 (Annexure-A/14).

11.       The malafide by Respondent No.3, it is urged, is seen from two aspects. First, as discussed in earlier paras, the acrimony between the two goes back to as early as 2003 and the Respondent No.3 always had the advantage of being senior officer.  Second, there is a battery of charge sheets issued against the applicant through the month of December, 2009, when he was due for promotion to higher scale in 2010.  This Tribunal has, in two earlier charge memos considered it fit to quash them.  The third in the series was the suspension order issued on 21.12.2009 which was also set aside and the fourth is the prsent charge memo issued in February, 2010, which also should
- 7 -
be quashed. 

12.       The learned counsel urges further that the earlier two charge memos were on frivolous grounds and so also is the present charge memo.  The learned counsel would plead that some of the events quoted by Smt. Perti in her report are in fact different in terms of facts as elaborated in his reply to the show cause notice but have apparently not been considered by the Disciplinary Authority while issuing the charge sheet.

13.       Now, we come to the actual articles of charges:
1.         That Shri Rajeev Shrivastava while working as Defence Estate Officer, Karnataka & Goa Circle, Bangalore during the period June, 2008 to December, 2009 misused his official position and prevented Smt. Rashmi Prasad, Junior Hindi Translator working in the Defence Estate Office, Bangalore from discharging her official duties.  The Charged Officer has also obstructed her entry into the Defence Estate Office, Karnataka & Goa Circle, Bangalore with intention to initiate disciplinary action against her.  The Charged Officer has also prevented Smt. Rashmi Prasad, Jr. Hindi Translator from signing attendance in the Attendance Register thereby causing undue harassment to a female employee.  Shri Rajeev Shrivastava, the Charged Officer has displayed discriminatory attitude towards a female employee.

2.         That  Shri Rajeev Shrivastava while working as Defence Estate Officer, Karnataka & Goa Circle, Bangalore during the period June, 2008 to December, 2009 deliberately altered sitting arrangement of Smt. Rashmi Prasad, JHT in order to disadvantage her and forced her to sit with other male employees in the Defence Estate Office, Bangalore thereby causing harassment, discrimination and giving reasonable ground to Smt. Rashmi Prasad to believe that she has been discriminated in connected with other female employees working in Defence Estate Office, Bangalore.

3.         The said  Shri Rajeev Shrivastava while working as DEO, Karnataka & Goa Circle, Bangalore during the period June, 2008 to December, 2009 misused his official position and displayed discriminatory attitude towards Smt. Rashmi Prasad, Jr. Hindi Translator.  The Charged Officer has issued innumerable letters calling explanation of Smt. Rashmi Prasad, Jr. Hindi Translator on flimsy and dubious grounds on the pretext of discipline thereby causing mental harassment to a female employee.
- 8 -

4.         That  the said Shri Rajeev Shrivastava while working as DEO, Karnataka & Goa Circle, Bangalore during the period June, 2008 to December, 2009 indulged in highly discriminatory, biased and hostile attitude towards a female employee viz. Smt. Rashmi Prasad, Junior Hindi Translator.  The Charged Offier has also failed to provide conducive working atmosphere to the subordinate staff in the Defence Estate, Bangalore including Smt. Rashmi Prasad, which resulted in mental harassment to Smt. Rashmi Prasad.

5.         That the said  Shri Rajeev Shrivastava while working as DEO, Karnataka & Goa Circle, Bangalore during the period June, 2008 to December, 2009 misused his official position and deliberately with malafide intention caused harassment to a female employee.  The Charged Officer has compelled Smt. Rashmi Prasad, Jr. Hindi Translator to stay alone beyond office working hours.  The Charged Officer has also forced her to attend the work which was not a part of her official duty as Junior Hindi Translator.(underlining emphasis our's).

            On all the above 5 grounds, the applicant's actions are unbecoming of a government servant, without maintaining devotion to duty and he failed to maintain absolute integrity contravening the provisions of Rule 3(1) (i) (ii) and (iii) of CCS (Conduct) Rules, 1964.

14.       Now, we come to certain details of  the present charge sheet issued on 22.02.2010.  This charge sheet is based on two complaint letters dated 11.05.2009 and 13.05.2009 made by the JHT (Junior Hindi Translator) Smt. Rashmi  Prasad working in the Defence Estate Office, Bangalore.  It appears from the sequence narrated by the applicant that based on these two complaints, the DEO, Mumbai, Smt. Geeta Perti, who held the same rank as that of the applicant, was directed by the Principal Director, Southern Command, Pune, to investigate into the complaints.  She arrived in Bangalore immediately, made enquiries on 14.05.2009 and submitted her report on 21.05.2009, based on which, a show cause notice was issued to the applicant on 23.10.2009.  In reply, the applicant requested for some documents. However, finally, in the absence of those documents, he prepared and

- 9 -
submitted his reply on 7.12.2009 where-upon a charge memo was issued to him on 22.02.2009.

15.       The applicant would submit that he joined Bangalore office on 16th June, 2008 and the said  lady employee Smt. Rashmi Prasad had joined as JHT in January, 2008.  On 22nd April, 2009, he received a so-called complaint letter written by one Shri Ramashray Singh to the Defence Minister alleging certain act of bigamy by Smt. Rashmi Prasad and referring to some police investigations against her in Danapur (Bihar).  The applicant sought to investigate into the complaints resulting in some occassions of displeasure between the two, starting from 6.5.2009 and pertaining to the official duties of Smt. Rashmi Prasad whereupon she wrote two complaints dated 11.5.2009 and 13.5.2009 to the Principal Director, Southern Command, Pune.  By then, the Respondent No.3 had already become the Director General and he used this complaint as a tool.  Acting with great speed on 13.5.2009 itself, he directed Smt. Geeta Perti, the DEO from Mumbay office to fly to Bangalore and enquire.  She submitted her report on 21.5.2009, based on which the applicant was asked to show cause as to why disciplinary action should not be initiated against him for violation of Conduct Rules.   The haste shown in the entire matter avers to intentions of Respondent No.3.

16.       The learned counsel for the applicant points to some apparent contradictions in Annexure-R/2.  Firstly, the applicant has joined the office of DEO, Bangalore in June, 2008 and had to take cognizance of the minor or major laches of duty by the subordinate staff.  Towards this end, the applicant
- 10 -
received a complaint in April, 2009, which alleged that Smt. Rashmi Prasad, Jr. Hindi Translator who was appointed in the office of DEO, Bangalore, as a fresh candidate in February, 2008, had claimed to be belonging to Backward category, but was actually not from the Backward category and also not un-married.  There was an allegation of bigamy against Smt. Rashmi Prasad which went back to the posting of one Shri Vishwanath Prasad, from the office of DEO, Port Blair,  who was earlier posted at Danapur. The respondents in their reply have averred to this letter and alleged that it was a creation of applicant himself in collusion with said Ramashray Singh. However, towards this, they have produced Annexure-R/2 which itself appears to be a creation by respondents.  The letter, on its face value, is a retraction, written by Ramashray Singh.  However the date shown in the said letter is 02-01-2004 as can be seen from the faxed copy of the letter sent to landline No.080-25544028 which is the office number of DEO, Bangalore.  This letter makes certain repenting remarks about how Ramashray Singh was misled by the applicant and it avers to the so-called harassment of Smt. Rashmi Prasad by the applicant.  However, the very first complaint by Smt. Rashmi Prasad against the applicant is dated 06-05-2009.  Therefore, the so-called 2nd letter of Shri Ramashray Singh appearing to retract his 1st complaint dated 22.4.2010 against Smt. Rashmi Prasad, but, bearing the date 02-01-2004 must be a falsehood.   The counsel also points to page 116 of the OA, where he seems to have sent notices to two staff members asking form certain information which is primarily required for the office record.  It contained questions such as marital status, etc.  While, the other employee furnished such information, the said Rashmi Prasad did not.  He therefore sought
- 11 -
instructions from the Principal Director of Defence Estates as to how to proceed in the matter in view of non furnishing of the information coupled with the complaint of Ramashray Singh but for which no reply has been received. 

17.       The learned counsel for applicant argues that the vulnerable position of the said lady employee has been used to hoist false allegations by the Respondent No.3 to get the applicant placed under suspension.  When he sought to investigate the complaint received from Ramashray Singh, a spate of complaints was then started by Rashmi Prasad against the applicant from 7.5.2009 onwards and the two complaints dated 11.5.2009 and 13.5.2009 were also part of the same.   On his part, the applicant had also been issuing notices to Rashmi Prasad.  Thus, there was a reason for Rashmi Prasad to have bias against the applicant and hence her allegation as well as the report of Smt. Geeta Perti are not dependable.  The charges by Smt. Rashmi Prasad are of frivolous nature and have been used only to somehow charge sheet the applicant and stall his chances of  promotion when some of his juniors are already promoted.

18.       In support of his contentions, the learned counsel for the applicant has relied on the following judgment:

18.1    Judgment of Apex Court in R.C. Sood Vs. High Court of judicature at Rajasthan & Ors. (1998) 5 SCC 493

            Unfair exercise of disciplinary proceeding was not bonafide, then disciplinary proceedings can be quashed.  Shri Sood was eligible for promotion to High Court and a disciplinary was started against him with malafide intention of making him ineligible in the zone of consideration. 

"We have no doubt that all those complaints were procured solely with a view to show that apart from the original complaint of Vijay Singh there
- 12 -

were other complaints against the petitioner which represented new material justifying a fresh enquiry.  These vague and general allegations could not, in our view be regarded as fresh material which required disciplinary proceedings being initiated.  The said complaints did not merit any serious considerations and reference to them by the High Court was uncalled for."

18.2    Badrinath Vs. Govt. of Tamil Nadu & Ors. - (2000) 8 SCC 395:

            This deals with the issue of "consequential orders".  Once the basis of the proceedings is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime – like the recommendation of the State and by the UPSC and the action taken thereon – would fall to the ground.  The principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders.  In otehr words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given his decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order."

19. On the other hand, the Respondents have submitted that the applicant has alleged malafide against the respondent No.3  and there is no case of any malafide against  Respondent No.1, who is the Secretary Defence and  Disciplinary Authority and hence the ground of malafide is not available as far as Annexure-A/14 is concerned.  Secondly, since the enquiry is still at the stage of charge sheet only, it must be allowed to take its own course and the cause for adjudication by CAT arises only after the inquiry is over.  Incidentally, we also notice that the reply statement has been verified and signed by one Shri Bhaskar Reddy, who is now the DEO of Karnataka and Goa and he has failed to mention on whose behalf he is filing the reply statement and whether he has the authority to do so. 

20.         The respondents have also relied on the following judgments in support of their claim:-
- 13 -

1.            Union of India & Ors. Vs. Upendra Singh – (1994) 3 SCC 357.

            Tribunals cannot intervene or examine the correctness of charges at the stage of framing of charges itself. 

"In the case of charges framed in a disciplinary inquirythe tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law.  At this stage, the tribunal has no jurisdiction to go into the correctness of truth of the charges.  The tribunal cannot take over the functions of the disciplinary authority.  The truth or otehrwise of  the charges is a matter for the disciplinary authoriy to go into.  Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."

2.            Union of India & Ors. Vs. A.N. Saxena – (1992) 3SCC 124.

"Interim order – Stay of disciplinary proceedings – Tribunals must be very cautious and careful in granting – where cahrge sheet against Income Tax Officer (respondent) showing charges of very serious nature which if proved would establish misconduct, held, Tribunal erred in granting injunction restraining Union of India from taking disciplinary action against the officer in terms of the charge sheet – Departmental enquiry."

21.       At this stage, it is worthwhile to quote from the judgment of this Tribunal in OA No.66/2010:
10.         ....... As already stated, in the present case no explanation is forthcoming from the respondents for their failure to proceed against the applicant during the period 2005-2009 for the irregularities committed by the applicant during 2004-2005.  it is also seen that after the issue of the charge memorandum dated 6th August, 2009, the respondents are in a great hurry to proceed with the enquiry and conclude the same as is evident from the fact that instead of granting extension of time to give a reply to the charges as requested by the applicant in his letter dated 24th August, 2009 (Annexure-29), the respondents have appointed an enquiry officer on 9th October, 2009 without waiting for a detailed reply to the charge sheet.  Further, in the said letter respondents have stated that he has to submit his denial or accept the charges.  The applicant has every right to give detailed reasons for denying the charges and the respondents can decide regarding continuing with the enquiry only after going through the reply to the charge sheet and if the disciplinary authority is convinced that the applicant has made out a case for dropping the charge sheet he has to drop the proceedings.   In State of
- 14 -

Punjab vs V.K. Khanna and Others, 2001 SCC (L&S) 1010, the Hon'ble Apex Court observed:
“34...................................  It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge sheet or show cause as the case may be, as to whether a further enquiry is called for.  In the event upon deliberations and due considerations it is in the affirmative – the inquiry follows but not otherwise”.

11.       The Hon'ble High Court of Delhi in Than Singh vs. Union of India and Others,  2003 (3) ATJ 42 has listed the following as the grounds upon which the charge sheet can be questioned:-

“(i)If it does not disclose any misconduct.
(ii)If it discloses bias or pre-judgement of the guilt of the charged employee.
(iii)There is non-application of mind in issuing the charge sheet.
(iv)If it does not disclose any misconduct.
(v)If it is vague.
(vi)If it is based on stale allegations.
(vii)If it is issued malafide”.

22.       At this stage, it is also important to deal with the Rules regarding charge-sheet.   We would first of all like to examine what are major penalties and minor penalties and under which situations and with what consequences these penalties can be imposed. 

23.       Major penalties and minor penalties are specifically mentioned in Rule 11 of CCS (CCA) Rules, 1965.
            Major penalties:

(v)           save as provided for in Clause (iii) (a), reduction to a lower stage in the time scale of pay for a specific period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whetehr on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;

(vi)         reduction in lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or Service from which he was reduced, with our without further directions regarding conditions of
- 15 -

restoration to the grade or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service;

(vii)        compulsory retirement;

(viii)       removal from service which shall not be a disqualification for future employment under the Government;

(ix)         dismissal from service which shall ordinarily be a disqualification for future employment under the Government.

            These penalties can be imposed only after following the elaborate procedure of show-cause notice, charge memo, Inquiry through an Inquiry Officer, and  another chance of explanation as mentioned in Rule 14 of CCS (CCA) Rules, 1965.

            Minor penalties are :

(i)            censure;
(ii)           withhold promotion;
(iii)         recovery from his pay of the whole or part of any pecuniary loss               caused by him to the Government by negligence or breach of                  orders;
[(iii)      (a)    reduction to a lower stage in the time-scale of pay by one         stage for a period not exceeding three years, without cumulative        effect and not adversely affecting his pension.]
(iv)     withholding of increments of pay;

and these penalties are imposed under Rule 16 of CCS (CCA) Rules, 1965 by adopting following procedure:-
16.(1)  Subject to the provisions of sub-rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in Clause (i) to (iv) of Rule 11 shall be made except after:-

(a)  informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal.

Thus, where a minor penalty is to be imposed , Rule 16 (1) ibid leaves it to the
- 16 -
discretion of Disciplinary Authority to decide whether an inquiry should be made or not.  The Govt. of India decision dated 28.10.1985 clarifies that the implication of this rule is that, on receipt of representation of Government servant concerned, the Disciplinary Authority should apply its mind to all the facts and circumstances and form an opinion whether an inquiry is necessary or not. 

24.       The enactment of these two Rules, namely, Rule 14 and Rule 16 for major and minor penalties respectively, pre-supposes that there would be instances of misconduct by an employee which do not warrant major penalty under Rule 14, but only a minor penalty under Rule 16.  It is therefore, important that when a Disciplinary Authority is seized of a particular misconduct, he/she has a duty to first of all come to a prima-facie understanding whether the misconduct if proved, is likely to result in a major or a minor penalty.  The whole gamut of Rule 16 exists only to ensure speedy handling of an act of misconduct which may not necessarily attract a major punishment and which can be viewed less seriously.  There is a growing tendency among the Disciplinary Authorities to treat every case as fit for major penalty/punishment under Rule 14, thereby, necessitating the entire protocol of Rule 14 to be followed.  This invariably results in delay in disposal of the inquiry.  The Disciplinary Authorities find a short-cut in entrusting the enquiry necessarily to an Inquiry Officer even where a quick application of mind to a particular act of misdemeanour would show that a minor punishment, if at all, is sufficient and the incident can be dealt with and finished speedily.  We agree that there would be some border line cases where the Disciplinary Authority,
- 17 -
looking prima-facie at the details of the misconduct may not be too sure whether action would be warranted as a major penalty or a minor penalty.  In such a situation, it would be better for him to err or on a safer side and order a detailed inquiry.  Further, the Govt. of India decision quoted supra also contemplates a situation where the charged officer himself may urge for a detailed inquiry in which case such a detailed inquiry should be ordered or else atleast the  detailed reasons for dispensing with the inquiry be mentioned. But, we wish to focus on the trade off between detailed inquiry that would appear much more judicious against the charged officer but would need more time and efforts vis-a-vis a speedy decision where the act of misconduct is worth only minor penalty. 

25.       Rule 16, we feel, has its utility which generally gets overlooked by the Disciplinary Authorities because the action under this Rule would mean taking the responsibility of having acted under that Rule without the support and benefit of a detailed inquiry conducted by the Inquiry Officer.  Ordering a detailed enquiry, no dobt gives a look of judicious decision,  but also makes the charged officer suffer for a longer time even when he could have been dealt with speedily by imposing minor penalty.

26.         Looking at the show cause notice dated 23.10.2009 (Annexure-A/1), we find that it is a case of a subordinate lady employee complaining against the applicant as harassing her by issuing notices for her alleged absence or non-performance or changing sitting arrangement. The complaints do not have any sexual harassment overtones. The complaints seem to have emanated from some of the instructions given by the applicant which may be with the intention
- 18 -
of maintaining office discipline and work disposal or with the intention of creating some amount of harassment.  In either situation, the Disciplinary Authority has to apply his mind to decide whether it is a case of Rule 14 or Rule 16.  What appears to us is that the complaint of the lady employee was received by the Director General, who made out a proposal of inquiry under Rule 14 and the Disciplinary Authority agreed to issue the charge sheet.  There have been many instances where aggrieved applicants have alleged that disciplinary inquiry was ordered on frivolous or trivial charges in order to create an impediment to the prospects of their promotion.  In the instant case too, the charge sheet has been issued when the applicant was due for his next promotion and it was incumbent upon the Disciplinary Authority to examine whether the charges were fit for Rule 14 or Rule 16.

27.       Looking at the stream of events where the Respondent No.3, namely, the Director General of Defence Estates, after he came to be posted as Director General, has dug out the events pertaining to the period 2004 onwards to find grounds for issuing charge memo to the applicant is evident from the earlier two charge sheets dated 6.8.2009 and 8.12.2009 impugned in OA Nos.66/2010 and 65/2010 respectively.  The present OA also appears to be a part of the same stream.  It can therefore, be said with some degree of possibility that the charge sheet was issued out of a grudge that Respondent No.3 may have harboured against the applicant for more than five years and at a time when serving of such charge sheets would definitely derail or delay his prospects of promotion to the higher grade.  Towards such a possibility, the disciplinary authority had a responsibility, that seems to have been overlooked.

- 19 -
28.       In view of the above, we consider it fit to quash the impugned order dated 22.02.2010 (Annexure-A/14).  No order as to costs.

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


1.            Annexure-A/1, dated 23.10.2009 :- Show-cause notice on the complaint of Smt. Rashmi Prasad and after submission of enquiry report by Geeta Parpi on 21.5.2009.

2.            Annexure-A/2, dated 4.11.2009:-  letter of the applicant addresed to the DG asking for some documents in order to reply to the memo.

3.            Annexure-A/3, dated 17.11.2009:- another letter from the applicant to the DG asking for the awaited documents for reply.

4.            Annexure-A/4, dated 7.12.2009:- letter from the applicant to the DG on submitting reply without the benefit of referred documents (running from page 79 to 179).

5.            Annexure-A/5, dated 9.12.2009, letter from the applicant to DG submitting 3 more documents.

6.            Annexure-A/6, letter to DG reg. Details of leave refused, etc.

7.            Annexure-A/7, order dated 5.5.10 in OA No.01/2010.

8.            Annexure-A/8, order dated 5.5.10, daily order Part-II by Rajeev Srivastava on assumption of charge after CAT order, but, without any order from the department.

9.            Annexure-A/9, dated 5.5.10:- applicant to competent authority in the Ministry for information of Annexure-A/8.

10.         Annexure-A/10, dated 6.5.10, applicant to the Principal Director, Defence Estates, Pune, (complaint against Bhaskar Reddy), new DEO of K&G Circle.

11.         Annexures-A/11 & A/12, dated 10.5.2010:          Reg.    - do -

12.         Annexure-A/13, WP No.16146/10 filed by Bhaskar Reddy.

13.       Annexure-A/14, dated 22.2.2010, impugned order of charge sheet.

14.       Annexure-A/15, dated 2.5.2010, applicant to the Ministry, reply to the memo.

15.         Annexure-A/16, dated 29.6.2010, Ministry to the applicant informing the appointment of IO & PO.

16.       Annexure-A/17, dated 24.6.2010, appointment order of IO & PO.

17.       Annexure-A/18, Newspaper cutting about CIB enquiry against Resp.-3.

18,       Annexure-A/19  List of complaints against Resp.-3 (8)
19.       Annexure-A/20, Another list of 16 complaints against Resp.-3.
(a)       The memo is issued arbitrarily without application of mind and at the behest and pressure of Respondent No.3 with malafide intention against the applicant.
(d)          & (h)  The impugned order of charge sheet is discriminatory against the applicant as it is based on trivial charge.
(di)         (k)        The earlier order passed by this Tribunal in OA No.01./2010, dated 5-5-2010 has also not been fully implemented by Respondents No.1 and 2 which further shows their bias against the applicant.
(diii)                  (l)         The allegations made in the charge sheet are false and this fact is known to some other official staff.  However, they have been excluded from the list of witnesses.  Further, the appointment of another officer of the department Mr. Reddy to the post held earlier by the applicant in Bangalore also shows malice.

2.         Case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI CINOD Secretariat, Madras – (1992) 3 SCC 1.

            It elaborates the distinction between the effect of an interim order staying the operation of a main order and an order to quash the main order. 

"....... that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revided and was pending before the Appellate Authority.  Hence, it cannot be said that any proceedings under the Act were pending before the Appellate Authority."

"5.        In their written arguments the respondents have denied the allegations of malafide against respondent no.3.  It is sated that the subject matter of the charge sheet in this O.A is  violative of Rule 20 of the CCS (Conduct) Rules, 1964 which lays down that no Government servant shall bring or attempt to bring any political or other outside influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under Government. Government instructions further lay down that any high dignitary or Member of Parliament normally sponsors the case of any Government servant only when he is approached or pressed to do so.  If therefore, any reference is received on behalf of a Government servant from Dignitary/Members of Parliament it would be assumed that it has been taken up only at the instance of the Government servant and action will be taken against the Government servant for violation of Rule 20 of CCS (Conduct) Rules and instructions issued there under.  Any instance of the violation of these Rules/orders would be viewed seriously and the employees responsible for such violation is  severely dealt with.

No comments:

Post a Comment