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2004 DIGILAW 479 (GAU)

Samar Bhowmik v. Union of India

2004-08-24

AFTAB H.SAIKIA, P.P.NAOLEKAR

body2004
JUDGMENT A.H. Saikia, J. 1. Heard Mr. P.K. Tiwari, learned counsel for the petitioner and also heard Mr. H. Rahman, learned Senior C.G.S.C. appearing on behalf of the Union of India - respondents. 2. By this writ petition, the petitioner has assailed the judgment and order dated 15.3.2000 passed by the learned Members, Central Administrative Tribunal, Guwahati Bench, (for short 'the Tribunal') in OA No. 66/98 dismissing the application filed by the petitioner raising a grievance against the order of compulsory retirement imposed upon the petitioner, by way of penalty vide order dated 21.9.1995 rendered by the appellate authority on appeal preferred by the petitioner against an order dated 31.1.1995 issued by the disciplinary authority removing him from service on the basis of initiation of a disciplinary proceeding against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal Rules,) 1965, (for short 'the Rules'). 3. The facts leading to filing of the writ petition in a nutshell are that the petitioner, being an employee in the Department of Posts, while was working as Section Supervisor in the office of the Chief Post Master General, Assam Circle, had been nominated as one of the members of one Sub-Committee out of 8 Sub-Committees constituted by the Postal authority for conducting the 5th All India Postal Lawn Tennis Tournament held at Guwahati from 28.2.1990 to 2.3.1990. The petitioner had been entrusted for carrying out various services/communications in connection with the said Tournament including the disbursement of amount to various persons like coaches, Umpires and purchase of mementoes etc. against the proper receipts. On 3.6.1992 the petitioner was charged with the allegations that he had committed gross irregularities regarding certain vouchers of bills pertaining to the Tournament which were being contrary to the departmental rules and procedures. Denying all those charges, the petitioner submitted his reply/written statement on 11.6.1992. A departmental inquiry was initiated against him and on 10.1.1994. Inquiry Report was submitted by the Inquiry Officer who found the charges levelled against the petitioner proved except the vouchers 3.1, 30.8, 11.3, 18.11. The petitioner was served with the copy of the inquiry report before any disciplinary action being taken. A departmental inquiry was initiated against him and on 10.1.1994. Inquiry Report was submitted by the Inquiry Officer who found the charges levelled against the petitioner proved except the vouchers 3.1, 30.8, 11.3, 18.11. The petitioner was served with the copy of the inquiry report before any disciplinary action being taken. Thereafter, the disciplinary authority on the basis of the evidence on record and being satisfied with the proceeding of the inquiry held by the Inquiry Officer, came to the findings that the petitioner had made certain irregular payments and purchases against the advance amount of Rs. 40,000 taken by him in connection with the Tournament but he failed to exercise due vigilance in spending from the public fund as required under the rules while being entrusted as disbursing officer who was made responsible for receiving all vouchers and for keeping proper accounts and accordingly the competent authority passed the order of removal of the petitioner from service. On statutory appeal, filed by the petitioner, being aggrieved by the order of removal, the appellate authority dismissed the appeal vide order dated 21.9.1995 modifying the penalty from removal from service to compulsory retirement as penalty after confirming the findings of the disciplinary authority. 4. Being dissatisfied with the order of compulsory retirement issued by the appellate authority, the petitioner approached the Tribunal which also did not find any irregularities and infirmities in the action of disciplinary authority as well as the appellate authority and accordingly, the said application was dismissed by the learned Tribunal upholding the imposition of penalty of compulsory retirement instead of removal from service so imposed by the appellate authority. 5. Mr. Tiwari, learned counsel for the petitioner has advanced threefold arguments, i.e. (i) the action taken against the petitioner cannot be said to be a misconduct to be covered by Central Civil Services (Conduct) Rules, 1964 (for short the Conduct Rules'), (ii) the act of omission, if any, done by the petitioner, was not in course of discharging of his official duties and (iii) the penalty, like compulsory retirement for commission of certain irregularities in the vouchers in a sporting event like the Tournament in question, manifestly appears to be disproportionate to the misconduct alleged. 6. According to Mr. 6. According to Mr. Tiwari the allegation levelled against the petitioner as indicated above, cannot be said to be a misconduct as envisaged by the Conduct Rules inasmuch as the charges slapped against the petitioner are not covered by misconduct prescribed in from Rules 4 to 22 of the Conduct Rules. Moreover, as a member of one of the Sub-Committees of the Tournament, the petitioner was not discharging his official duties and as such, the Rules and procedures prescribed in the Financial Hand Book do not hold the field. To substantiate his arguments, Mr. Tiwari has relied two decisions of the Apex Court namely, 1. A.R. Kalra v. Project Equipment Corporation of India Ltd., reported in (1984) II LLJ 186 SC and 2. B.C. Chaturvedi v. Union of India and Ors., reported in (1995) 6 SCC 750. 7. After going through the above referred decisions and also on close inspection of the fact situation of the case in hand, we are of the view that the ratio of both the cases cited above, has no application to the facts of the present case. In Karla's case (supra) the appellant failed to refund the advance taken from the Corporation. As omission was charged to be a misconduct, the issue therein was that when Rule 5 of the Corporation Rules defines "specific misconduct", whether in the general the grey area it was not amenable to disciplinary action unless the act was constituted to be a misconduct under Rule 5 of the said Rules. 8. In so far Chaturvedi's case (supra) is concerned, the question raised therein was whether alleged possession of assets disproporationate to his known sources of income was misconduct. Criminal misconduct has been defined under the statute i.e. Section 5(1)(e) of Prevention of Corruption Act, 1947 which is equivalent to Section 13(1)(e) of the Prevention of Corruption Act, 1988. Having taken into account the definition of criminal misconduct, the Apex Court in the said case held that a public servant in possession of assets disproportionate to his known sources of income which he had not satisfactorily accounted for, committed a misconduct amenable to the disciplinary action under the Rules and the Conduct Rules. 9. Having taken into account the definition of criminal misconduct, the Apex Court in the said case held that a public servant in possession of assets disproportionate to his known sources of income which he had not satisfactorily accounted for, committed a misconduct amenable to the disciplinary action under the Rules and the Conduct Rules. 9. After carefully going through the impugned judgment passed by the learned Tribunal which found no infirmity with the orders passed by the learned appellate authority as well as disciplinary authority, we are of the view that there is no substance in the first and second submissions indicted above, so canvassed by the learned counsel for the petitioner because the findings arrived at by the disciplinary authority and the appellate authority which have been adequately taken care of by the learned Tribunal, cannot be interfered with by this Court which does not sit as a Court of Appeal against such finding of the disciplinary authorities which are basically the fact finding authorities having exclusive power to consider the evidence with a view to maintain discipline. In so far as the third submission is concerned, as regards the punishment, we have given our thoughtful consideration to the argument advanced by the learned counsel for the petitioner. Ordinarily, an order of compulsory retirement is not to be treated as punishment but in the case Section, as stipulated in the Rules, the compulsory retirement is one of the penalties to be inflicted on the delinquent Government servant consequent upon a finding of guilt recorded in the disciplinary proceeding. From the facts and circumstances of the case, it is seen that the learned Tribunal has affirmed the penalties modified by the appellate authority who after taking into account the long period of service rendered by the petitioner, reduced his penalty from removal of service to the penalty of compulsory retirement. In the case in hand, the petitioner was found to be guilty of submitting fake and fabricated bills and vouchers relating to Tournament organised by the department concerned. In the said Tournament, the petitioner's service was detailed as a member of one of the 8 Sub-committees with the entrustment of disbursing amount of Rs. 40,000 which had been given to him for conduct of the Tournament by way of payment to the Coaches, umpires and purchase of mementos etc. In the said Tournament, the petitioner's service was detailed as a member of one of the 8 Sub-committees with the entrustment of disbursing amount of Rs. 40,000 which had been given to him for conduct of the Tournament by way of payment to the Coaches, umpires and purchase of mementos etc. From the record, it appears that the petitioner has put in for more than 27 years of service till the date of passing the order of compulsory retirement and he has another more 10 years of service. Therefore, the petitioner, being more than 50 years of age, it would be difficult for him, at this stage, to get a new job or to take a profession. In view of the same we are inclined to accept the argument for modifying the punishment of compulsory retirement to a lesser punishment which according to us may be such as withholding of increment, recovery from his pay the whole and part for pecuniary loss caused by him to the disciplinary authority or withholding his promotion to meet the ends of justice when he was proved guilty of charges levelled against him. Accordingly, it is held that the punishment of compulsory retirement is disproportionate to the nature of misconduct proved against the petitioner. 10. Consequently, impugned order of compulsorily retiring the petitioner is hereby quashed and set aside and the respondents are directed to reinstate him in his original position forthwith. Since the findings of the learned Tribunal have not been interfered with save and except the punishment above mentioned, the appellate authority is directed to consider the imposition of lesser punishment upon the petitioner as prescribed under Rules with a reasonable time preferably within a period of three months from the date of receipt of the copy of this order. 11. For the foregoing reasons, this writ petition stand partly allowed to the extent indicated above. However, there shall be no order as to costs.