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2012 DIGILAW 1019 (CAL)

Ratna Bhattacharya v. UNION OF INDIA

2012-12-06

ANINDITA ROY SARASWATI, NISHITA MHATRE

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Judgment :- Nishita Mhatre, J. 1. Aggrieved by the order of the Central Administrative Tribunal, Kolkata Bench, the petitioner has approached this Court by way of the present writ petition filed under Article 226 of the Constitution of India. 2. The issue involved in the present petition is whether while imposing a minor penalty it is necessary for the respondents to conduct a fullfledged departmental inquiry. The facts involved in the present petition are as follows: The petitioner is employed in the Department of Posts and has been working there since 16th April 1976. She is the Vice-president of All India R.M.S. & M.M.S. Employees Union Group-‘C’ Mail Guard Group-‘D’ National Federation of Post and Telegraph Employees. On 18th July 2009 the Divisional Secretary of the aforesaid union intimated the Superintendent, Department of Posts, Kolkata that members of the union would proceed on an indefinite ‘dharna’ on and from 20.07.2009 as their demands had not been fulfilled. The petitioner participated in the ‘dharna’ along with about 150 members of the union on 20.07.2009. According to her the ‘dharna’ was peaceful. The petitioner was issued a memo along with the statement of imputation of misconduct on 23rd/24th July 2009. The memo was withdrawn and treated as cancelled due to some technical errors. A fresh memo was issued to the petitioner on 27th July 2009 along with a statement of imputation of charges. The charges were that (i) the petitioner had held a demonstration on some local issues in front of the chamber of the Superintendent in the office premises, without permission and (ii) during this demonstration she had abused the superintendent using insulting and filthy language. The petitioner was directed to show-cause within 10 days of the receipt of the memo. Accordingly the petitioner submitted her representation against the proposed action sought to be initiated under Rule 16 of the Central Civil Services Classification Control and Appeal Rules (hereinafter referred to as the CCS (CCA) Rules). The action was proposed due to the violation of Rules contained in the Central Civil Services Conduct Rules (hereinafter referred to as Conduct Rules). 3. The petitioner submitted her reply to the show cause notice and requested the authorities to furnish a copy of the special report if any with respect to the incident which occurred on 20th July 2009 and any other documents on the basis of which the charge was framed against her. 3. The petitioner submitted her reply to the show cause notice and requested the authorities to furnish a copy of the special report if any with respect to the incident which occurred on 20th July 2009 and any other documents on the basis of which the charge was framed against her. 4. By an order dated 31st December 2009 the Disciplinary Authority imposed the punishment of withholding increments for three years, without cumulative effect. 5. Aggrieved by this decision the petitioner preferred an appeal under Rule 23 (ii) of the CCS (CCA) Rules. The Appellate Authority set aside the order passed by the Disciplinary Authority as he was the person against whom the abusive language was allegedly used. The Appellate Authority held that since this was a procedural lapse the Disciplinary Authority, being personally concerned with the charge of abusive language, the order of punishment imposed on the petitioner was vitiated. He directed that de novo proceedings be instituted from the stage of issuance of a fresh order of punishment. 6. Accordingly, another officer exercised the powers vested in him under Rules 16 read with Rule 11 of the CCS (CCA) Rules and imposed punishment of reduction in pay by one stage for a period of six months without affecting future increments. 7. The petitioner preferred an appeal again which was decided by an order dated 8th March 2011. The Appellate Authority confirmed the order of punishment imposed by the Disciplinary Authority. 8. Being aggrieved by the order passed by the Appellate Authority confirming the decision of the Disciplinary Authority the petitioner preferred O.A. No. 435 of 2011 before the Central Administrative Tribunal, Kolkata Bench. The Tribunal held that the petitioner had violated Rule 7(i) and Rule 3 (i) (ii) & (iii of the Conduct Rules. The Original Application preferred by the petitioner was thus dismissed. 9. Mr. Soumya Majumder, learned counsel appearing for the petitioner has submitted before us that the charges levelled against the petitioner namely of holding a demonstration in the workplace and of using filthy and abusive language directed at her superiors were serious and grave. According to him for misconduct of such a nature it was necessary for the respondents to hold an inquiry as envisaged under Rule 14 of the CCS (CCA) Rules. According to him for misconduct of such a nature it was necessary for the respondents to hold an inquiry as envisaged under Rule 14 of the CCS (CCA) Rules. He submitted that when the petitioner had refuted the charges levelled against her it was incumbent on the respondents to hold a full-fledged inquiry and a short cut could not be adopted by them by resorting to Rule 16 read with Rule 11 of the CCS (CCA) Rules. He urged that it was necessary for the respondents to prove the charges levelled against the petitioner especially when she had denied them. The learned advocate has relied on the judgement of the Karnataka High Court in V. Srinivasa Rao vs. State of Karnataka and Ors. reported in ILR 1989 Karnataka 3455, in support of his submissions that it was necessary for the respondents to hold an inquiry against the petitioner. 10. Mr. Avik Dutta learned counsel appearing for the respondents submitted that Rule 16 of the CCS (CCA) Rule does not require holding of an inquiry has envisaged under Rule 14 and an exception has been carved out to this provision in the form of Sub-Rule (1-A) of Rule 16. He pointed out that the petitioner had admitted, not only before the Disciplinary Authority but also in the writ petition that she was present when the demonstration was held and that she had participated in the demonstration. He pointed out that the petitioner had not thought it fit to deny that she had used abusive language against her superiors. He submitted that while imposing a minor penalty enumerated in Rule 11(i) to (iv) it was not necessary for the authorities to institute a departmental inquiry. He drew our attention to the procedure for imposing minor penalties as laid down in Rule 16 of the CCS (CCA) Rules. According to him the respondents had complied with the procedure prescribed in Rule 16 while imposing the minor penalty. 11. We have given our anxious consideration to the contentions raised by the learned counsel before us. As we have noted earlier the petitioner had admitted in her reply before the Disciplinary Authority that she had participated in the ‘dharna’ held on 20th July 2009. However, she submitted that she had not ‘held’ a ‘dharna’ as alleged in the charge framed against her. The charge against the petitioner was that she had held a demonstration. As we have noted earlier the petitioner had admitted in her reply before the Disciplinary Authority that she had participated in the ‘dharna’ held on 20th July 2009. However, she submitted that she had not ‘held’ a ‘dharna’ as alleged in the charge framed against her. The charge against the petitioner was that she had held a demonstration. However when the petitioner had admitted the participation in the demonstration it would only amount to splitting hairs on the use of appropriate word in the charge. Therefore, in our opinion, the first charge of having participated in a demonstration was clearly admitted by the petitioner. 12. Rule 7 of the Conduct Rules reads as follows;- “7. Demonstration and Strikes No Government servant shall – (i) engage himself or participate in any demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of Court, defamation or incitement to an offence, or (ii) resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to him service or the service of any other Government servant.” 13. Thus mere participation in a demonstration is not misconduct. It must be proved that such a demonstration was prejudicial to the interests of public order, decency or morality or amounts to defamation or incitement to an offence. Under Rule 3 (iii) a Government servant is expected to do nothing which is unbecoming of a Government servant. The contention of the petitioner that the demonstration was held in the office premises after permission was granted by the Superintendent was not accepted by the Disciplinary Authority as there was no letter produced by her showing that such permission was granted. 14. As regards the second charge with respect to using insulting and filthy language against the Superintendent and the local administration thereby violating the Rule 3(1) (iii) of the Conduct Rules, the petitioner has denied the same. The Disciplinary Authority has relied on the report of a preliminary inquiry conducted in respect of the incident which occurred on 20th July 2009 and the statement of the Superintendent who had heard the filthy and abusive language uttered by the petitioner against him. The Disciplinary Authority has relied on the report of a preliminary inquiry conducted in respect of the incident which occurred on 20th July 2009 and the statement of the Superintendent who had heard the filthy and abusive language uttered by the petitioner against him. The Disciplinary Authority observed that the Chamber of the Superintendent though closed was not sound proof and, therefore, his statement was accepted. 15. The Disciplinary Authority has found that the report of the Inquiry Officer established the charges against the petitioner beyond doubt. It appears, therefore, the report of the Inquiry Officer lent credence to the charges levelled against the petitioner and the Disciplinary Authority was persuaded by the same and found the petitioner guilty of the charges. Indisputably, the report was not furnished to the petitioner. This report was the foundation for the charge-sheet issued to the petitioner. However, this relevant document was not furnished to the petitioner. Although, the petitioner has admitted that she participated in the demonstration, she has stated at every stage that holding of the demonstration had been permitted by the authorities after the union ought the required permission from them. 16. We have noted that the Disciplinary Authority has based his findings on the report of the Inquiry Officer and the statement of the Superintendent who had held the petitioner guilty of the charges levelled against her in the first instance. The petitioner has denied ever having used abusive and insulting language directed at her superiors and more particularly, the Superintendent concerned. In such circumstances, in our opinion, it was necessary for the respondents to hold a full-fledged inquiry as envisaged under Rule 14 of the CCS(CCA) Rules even though a minor penalty was imposed. The only reason that appears to have weighed with the Disciplinary Authority for not holding an inquiry under Rule 14 is that when the charges are levelled, an employee would normally deny the same. 17. Rule 16(1) provides that in the case of penalties specified in Clause (i) to (iv) of Rule 11 the Government servant concerned against whom the penalty is to be awarded must be informed in writing of the proposal to take action against him and the imputation of misconduct alleged against him. A reasonable opportunity is required to be afforded to him to submit a representation against such a proposal. A reasonable opportunity is required to be afforded to him to submit a representation against such a proposal. Clause 16(1) (b) provides that in every case where the Disciplinary Authority is of the opinion that an inquiry under Rule 14 is required to be held then such an inquiry must be held before imposing the penalty. The imposition of the penalty is to be made only after consideration of the employee’s representation and the record of the inquiry. Thus it is apparent that the Disciplinary Authority must come to the conclusion for cogent reasons that there is no need to hold a full-fledged inquiry. Such reasons must be recorded or else it would be difficult to assess whether the Disciplinary Authority has in fact applied his mind to this aspect of the matter. A delinquent employee cannot be denied natural justice on the specious plea that the inquiry was not necessary as the preliminary report indicated that he was guilty. 18. In the case of V. Srinivasa Rao vs. State of Karnataka, 1990 (61) FLR page 510, the division bench of the Court has observed while agreeing with the judgment of the Kerala High Court in C.R. Warrier vs. State of Kerala 1993 1 SLR 608, that even in cases where a minor penalty is proposed to be imposed against a civil servant if the nature of the charge levelled against him is such that a finding of guilt could be recorded only after holding a regular inquiry in which oral and documentary evidence in support of the charge is to be considered, the delinquent must be given opportunity of cross-examination of the witnesses and explain the documents. We are in respectful agreement with the view taken by the Karnataka High Court. The fact that the petitioner’s union had sought permission from the authorities to hold the ‘dharna’ has not been denied. However, whether the permission had been granted or not is a contentious issue. This is because while the authorities claimed that no permission was granted the petitioner contended that such permission was in fact granted by them. Furthermore, unless the Superintendent concerned who claimed to have heard the abusive and insulting language used against him by the petitioner, would have to be subjected to cross-examination and it is difficult to accept his word as gospel truth. 19. Furthermore, unless the Superintendent concerned who claimed to have heard the abusive and insulting language used against him by the petitioner, would have to be subjected to cross-examination and it is difficult to accept his word as gospel truth. 19. Whether a summary procedure should be adopted for punishing a government servant would depend upon the misconduct with which he is charged. Reasons should be recorded for deviating from holding a full fledged inquiry. Such reasons must be cogent and germane and not the ipse dixit of the Disciplinary Authority. 20. Considering the facts and circumstances before us we are of the view that the charge levelled against the petitioner required the holding of an inquiry under Rule 14 of the CCS (CCA) Rules. A summary procedure to impose a minor penalty could not have been adopted. In the result the impugned order is set aside. The orders of the Disciplinary Authority and the Appellate Authority imposing punishment on petitioner are set aside. The dues of the Petitioner which have been withheld shall be released within a period of 8(eight) weeks. 20. However, we leave it open to the respondents to hold a regular inquiry under Rule 14 in respect of the charges levelled against the petitioner, within a reasonable time. 21. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities. Anindita Roy Saraswati, J. I agree. Nishita Mhatre, J. : 1. The petitioners in these writ petitions have been issued a similar charge-sheet as the petitioner in W.P.C.T. 153 of 2012. The challenge raised by the petitioners to the charge-sheet and the punishment imposed was rejected by the Tribunal in O.A. Nos. 436 of 2011, 437 of 2011 & 438 of 2011 respectively by a common order. 2. For the reasons stated in our judgement and order in W.P.C.T. 153 of 2012 the writ petitions are allowed. The orders of the Disciplinary Authority and the Appellate Authority imposing punishment on the petitioners are set aside. 3. However, we leave it open to the respondents to hold a regular inquiry under Rule 14 Central Civil Services Classification and Appeal Rules in respect of the charges levelled against the petitioners, within a reasonable time. 4. The orders of the Disciplinary Authority and the Appellate Authority imposing punishment on the petitioners are set aside. 3. However, we leave it open to the respondents to hold a regular inquiry under Rule 14 Central Civil Services Classification and Appeal Rules in respect of the charges levelled against the petitioners, within a reasonable time. 4. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.