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2012 DIGILAW 1315 (GAU)

Arup Kumar Chakraborty v. Union of India

2012-12-07

ANIMA HAZARIKA, I.A.ANSARI

body2012
JUDGMENT Iqbal Ahmed Ansari, J. 1. The petitioner, while serving as a Drilling in-charge (in short, 'DIC'), Central Ground Water Board (in short, 'CGWB' (hereinafter referred to as the 'respondent Board'), Ministry of Central Water Resources, Division XV, Kolkata, submitted a travelling allowance bill (in short, 'TA bill') for the months of October and November, 2000. In the TA bill, so submitted, the petitioner had claimed, in respect of the month of October, 2000, travelling allowance (in short, 'TA') from 19.10.2000 to 29.10.2000. Since, according to the respondent Board, it was detected that the petitioner had claimed TA for the period from 19.10.2000 to 29.10.2000, while he had actually left the camp on 24.10.2000 and ought not to have, therefore, claimed TA for the period from 24.10.2000 to 29.10.2000, the petitioner was served by the respondent Board with a Office Memo., dated 25.04.2001, intimating him and asking his reply regarding submission of bogus and fictitious TA bill. On receipt of the said Office Memo., the petitioner tendered his apology, vide his letter, dated 07.05.2001, giving an explanation that he had submitted the TA bill inadvertently since he had left his personal diary at the work site, at Patna, and with the said reply, dated 07.05.2001, the petitioner also submitted a rectified TA bill in respect of his said official tour. While apologizing by his reply to the said memorandum, the petitioner also admitted, as indicated hereinbefore, that he had already submitted rectified TA bills in the sense that he (i.e., the petitioner) had earlier claimed TA from 19.10.2000 to 29.10.2000; whereas, he had actually left the camp on 24.10.2000 and the rectification of the TA bill, made by the petitioner, was that he modified his claim for TA bill for the period from 19.10.2000 to 24.10.2000 instead of 19.10.2000 to 29.10.2000. 2. As the petitioner's reply failed to satisfy the disciplinary authority, the petitioner was served with a Memorandum of Charge, dated 26.02.2002, directing him to show cause against the memorandum of charge, the allegation in the Memorandum of Charge being to the effect that the petitioner had made false and fictitious claim in his TA bill by claiming TA for the period from 25.10.2000 to 29.10.2000. 3. The Article of Charge read as under: That the said Sh. 3. The Article of Charge read as under: That the said Sh. A.K. Chakraborty, DIC while functioning as DIC during the year 2000 preferred false TA claim for the month of October and November 2000 for his journey from Kolkata to Patna and back. By his above act Sh. A.K. Chakraborty, DIC has failed to maintain absolute integrity and has acted in a manner unbecoming of a Government servant. Sh. A.K. Chakraborty, has thus violated the provisions of Rule 3(1)(i) and Rule 3(1)(iii) of CCS (Conduct) Rules, 1964. 4. The imputation of misconduct, in respect of the Article of Charge aforementioned was, in brief, thus: (i) The petitioner, while working as DIC, in the respondent Board, took, on 11.10.2000, TA advance of Rs.2,900/-, for undertaking official tour. However, the petitioner submitted his TA bill, for the months of October and November, 2000, together, by his letter, dated 18.12.2000, for the journey performed by him from Kolkata to Patna and back. In this TA bill, the petitioner mentioned that he had started the journey from base camp on 17.10.2000 and reached Khajekala site, Patna, on 18.10.2000. The petitioner had also shown, in the said TA bill, that during the period from 19.10.2000 to 28.10.2000, he was on Khajekala site, Patna. As per the petitioner's said TA bill, he had started his journey from his worksite, at Khajekala, Patna, to Howrah station, on 29.10.2000, by Danapur Express and reached base camp on 30.10.2000. He, thus, claimed travelling allowance up to 29.10.2000 showing that he had left Khajekala site on 28.10.2000. (ii) In the meanwhile, however, it was relieved that two persons, namely, I.C. Gupta and K.S. Dhara, who were on leave, had also travelled with the petitioner, on 24.10.2000, from Patna to Howrah in Sleeper class of Danapur Express. In order to ascertain the truth, the petitioner was requested, by letters dated 18.01.2001, and dated 08.03.2001, to confirm the names of the passengers, who had performed journey, on 24.10.2000, from Patna to Howrah, by Danapur Express, in Sleeper class in the railway coach, wherein the petitioner had also undertaken the journey as claimed by the petitioner. The petitioner-replied that the passengers, who had travelled with him from Patna to Howrah, were A.K. Chakraborty (i.e., the petitioner himself), I.C. Gupta, and one K.S. Dhara. The petitioner-replied that the passengers, who had travelled with him from Patna to Howrah, were A.K. Chakraborty (i.e., the petitioner himself), I.C. Gupta, and one K.S. Dhara. (iii) Similarly, K.S. Dhara was also asked by the respondent Board, by letter dated 19.04.2001, to clarify whether he had left the camp, at Khajekala, on 24.10.2000 (forenoon) or remained at the said site and, if he had left the camp, then, what was the means by which he had left the camp on 24.10.2000 (forenoon) and how many persons had left together? In response to the letter, 19.04.2001, aforementioned, K.S. Dhara replied that he had left his worksite, at Patna, on 24.10.2000 (forenoon), to proceed on leave, and he had left Patna by Danapur Express accompanied by Sri A.K. Chakraborty (i.e., the petitioner) and Sri I.C. Gupta and that they all had travelled together right from Patna to Howrah in Sleeper class in the same coach. (iv) The respondent Board also confirmed from the said Sri I.C. Gupta as to whether he had left the camp, on 24.10.2000, alone or in the company of others. In his reply, dated 08.05.2001, Sri Gupta, too, replied that on 24.10.2000, he had performed journey from Khajekala, Patna, to Howrah, by Danapur Express, accompanied by Sri A.K. Chakraborty (i.e., the petitioner) and Sri K.S. Dhara, cleaner. (v) The above facts showed that the petitioner had, according to the respondent Board, claimed false and fictitious TA bill up to 29.10.2000, whereas, he had, actually, left the site, at Khajekala, Patna, on 24.10.2000, and that the petitioner, therefore, according to the respondent Board, tried to cover up the matter by submitting a rectified TA bill, which was, in the view of the respondent Board, the result of an after-thought. The respondent Board, therefore, alleged that the petitioner had failed to maintain absolute integrity and had violated the relevant rules. (vi) The petitioner had, then, been served, as already indicated above, with a letter, dated 25.04.2001, informing him that he had submitted a false and fictitious TA bill for adjustment of TA advance of Rs.2,900/- sanctioned to him to undertake the official journey and he was also directed to clarify as to why disciplinary proceeding should not be drawn against him. 5. 5. On receipt of the memorandum of charge aforementioned, accompanied by a Statement of Imputation of Charge, as stated hereinbefore, the petitioner furnished his reply, by letter, dated 03.04.2002, wherein he submitted, as already indicated above, that he had prepared the TA bill, in question, in a hurry, while he was at his home, on leave, completely relying upon his memory inasmuch as the diary, wherein he used to record the details of his official tours, had been left at his work site, at Patna, and, hence, any error, if had taken place in his TA bills, the same had been inadvertent and unintentional. The petitioner further submitted, in his reply to the aforesaid memorandum of charge, that he had committed a bona fide mistake and assured the authority that such a thing would not be repeated in future. 6. As the reply of the petitioner to the memorandum of charge failed to convince the disciplinary authority, with regard to the correctness and genuineness of the petitioner's explanation, a penalty of reduction to lower stage was imposed, on the petitioner, by the respondent Board, by its order, dated 02.06.2005, by reducing the petitioner's three increments, in the time scale of pay, for the period of three years, without cumulative effect and not adversely affecting his pension. 7. Aggrieved by the penalty, so imposed on him, the petitioner preferred an appeal before the Secretary to the Government of India, Ministry of Water Resources, i.e., appellate authority. The appellate authority passed an order, dated 27.01.2004, setting aside the order, dated 02.06.2003, aforementioned, which had been passed by the disciplinary authority, for, the appellate authority was of the view that the matter needed to be enquired into by appointing Inquiry Officer/Presenting Officer in terms of the Rules. The decision of the appellate authority was based on the fact that in his reply to the charge, the petitioner had not, in specific terms, admitted his guilt and, therefore, holding of an inquiry was necessary. 8. In compliance with the order of the appellate authority, respondent Board appointed Inquiry Officer as well as Presenting Officer, on 06.09.2004, to conduct inquiry against the petitioner on the charge of misconduct, which had been levelled against the petitioner for submission of false and fictitious TA bill. 9. At the inquiry, the Presenting Officer submitted his case in brief. 8. In compliance with the order of the appellate authority, respondent Board appointed Inquiry Officer as well as Presenting Officer, on 06.09.2004, to conduct inquiry against the petitioner on the charge of misconduct, which had been levelled against the petitioner for submission of false and fictitious TA bill. 9. At the inquiry, the Presenting Officer submitted his case in brief. The petitioner, then, in order to controvert the case of the disciplinary authority (i.e., the respondent Board), adduced evidence by examining three witnesses. On completion of the inquiry, the Inquiry Officer submitted his inquiry report, on 02.03.2005, wherein he recorded his finding as follows: He has singed the TA bill as well as the tour diary on 01.12.2000 and the covering letter on 18.12.2000. The pen used is the same in the TA bill and the Tour diary whereas it is different in the Covering letter. And as per his tour diary for the month of December 2000 (D-I), he was at Khajekala site. Patna on 01.12.2000. Even during the examination by the IO, when the SPS presented himself as his own witness, the SPS first stated that he had written the date on the TA bill & the Tour diary as 1.10.2K to 30.112K and the next date was 1.12.2K and it was written in that sense. And then in the answer to the next question by the IO, the SPS stated, "In tension it was wrongly written". Thus the SPS has himself contradicted his statement. The SPS remembered even the minutest details regarding his various journeys filled in the TA bill in question. To quote some- 31.102K Dep Howrah 2105 hrs. And Arr. Patna on 01.11.2K, distance 543 kms. 7.112K Dep Khajekala site 0800 hrs by WB03 A 6680 and Arr. Ranchi Div V 2030 hrs, distance 348 kms. 12.112K Dep Ranchi Div V 1100 hrs by WB03A 6680 and Arr. Khajekala site 2355 hrs. distance 360 kms. As per the above, the SPS even remembered the vehicle number by which he travelled from Khajekala site to Ranchi and back as well as that while going to Patna the distance was 384 kms and while returning it was 360 kms. It is thus clear that the SPS did not fill up the TA bill by simply relying on memory'. Also the SPS has admitted that he committed a mistake, which was unintentional, and bonafide. It is thus clear that the SPS did not fill up the TA bill by simply relying on memory'. Also the SPS has admitted that he committed a mistake, which was unintentional, and bonafide. Whereas he is on one hand saying that it was unintentional, in the same breath he is saying that the mistake was bonafide. IX. FINDINGS On the basis of Documentary and Oral evidence adduced in the case before me and in view of the reasons given above, I hereby find Sri A.K. Chakrabory. DIC, DIV VII, CGWB, Guwahati guilty of the charge of preferring a false TA claim for the months of October and November 2000 for his journey from Kolkata to Patna and back. Shri Chakraborty had claimed Daily Allowance for 42.7 days (written as 43.7 days by the SPS in the TA bill, but as per the calculation it is 42.7) whereas he was actually in camp/transit for 38.7 days only. 10. The petitioner was, then, served with the enquiry report and he was given an opportunity to have his say in the matter. The petitioner accordingly furnished his reply by his letter, dated 07.04.2005. Having considered the entire matter, including the petitioner's reply to the enquiry report, the disciplinary authority, having reached the conclusion that the petitioner was guilty of having falsely claimed TA for 42.7 days, whereas he was, actually, in camp/transit for 38.7 days only, passed an order, on 05.05.2005, directing that the pay of the petitioner be reduced by one stage, from Rs.10,000/- to Rs.9,750/-, in the time scale of pay, for a period of one year w.e.f. the date of issue of the order (i.e., 05.05.2005) with further direction that on the expiry of the said period of one year, the reduction of pay would have the effect of postponing his future increments of pay. 11. Since the appeal, preferred by the petitioner, failed to yield result, which the petitioner had desired, the petitioner sought for revision of the decisions of the disciplinary authority and also the appellate authority. As the revision, too, failed, the petitioner approached the Central Administrative Tribunal, Guwahati Bench, by filing Original Application, which gave rise to OA No. 205 of 2006. Since the appeal, preferred by the petitioner, failed to yield result, which the petitioner had desired, the petitioner sought for revision of the decisions of the disciplinary authority and also the appellate authority. As the revision, too, failed, the petitioner approached the Central Administrative Tribunal, Guwahati Bench, by filing Original Application, which gave rise to OA No. 205 of 2006. By its order, dated 31.01.2008, as the learned Tribunal has dismissed the said Original Application by terming the same as devoid of merit, the petitioner is, now, before us with the present writ petition, made under article 226 of the Constitution of India, impugning the order, dated 31.01.2008, passed by the learned Central Administrative Tribunal and also impugning the charge-sheet, dated 26.02.2002, the order of penalty, dated 05.05.2005, as well as the order, dated 28.10.2005, passed by the respondent Board. 12. We have heard Mr. S. Dutta, learned counsel for the petitioner. We have also heard Ms. J. Huda, learned Central Government Counsel, appearing for the respondents. 13. While considering the present writ petition, it may be noted that the petitioner, admittedly, submitted his TA Bill for then months of October, 2000, and November, 2000, together. In the month of October, the petitioner had claimed TA for the period commencing mom 19.10.2000 and ending on 29.10.2000. On receiving the memorandum, containing the article of charge, the petitioner rectified the TA Bill by making the bill for the period from 19.10.2000 to 24.10.2000 in place of 19.10.2000 to 29.10.2000. 14. Thus, it is clear that the petitioner had claimed TA from 25th to 29th of October, 2000, which he was, otherwise, not entitled to claim. Whether the submission of the TA Bill, claiming TA from 19th October, 2000, to 29th October, 2000, was due to the petitioner's bona fide mistake and unintentional or the submission of the TA bill, as described hereinbefore, was intentional, deliberate and mala fide, was the core question for decision at the inquiry. 15. Having considered the materials on record, the inquiry officer came to the conclusion that the claim, made for the period from 19.10.2000 to 29.10.2000, was not unintentional and bona fide. The reasons, which the inquiry officer assigned, have already been reproduced above. 16. It needs to be, now, pointed out that in his representation, as against the inquiry report, the petitioner contended that the findings of the Inquiry Officer were perverse. The reasons, which the inquiry officer assigned, have already been reproduced above. 16. It needs to be, now, pointed out that in his representation, as against the inquiry report, the petitioner contended that the findings of the Inquiry Officer were perverse. It may be noted, in this regard, that in order to treat a finding, given by an inquiry officer, perverse, the finding has to be reached without any material in support of the finding, or wholly against the weight of the materials on record or in violation of law, which caused miscarriage of justice. A mere erroneous or wrong decision is not amenable to writ jurisdiction under Article 226 of the Constitution of India 17. Having cautiously and minutely examined the reasons, which the Inquiry Officer as assigned, we do not find that the findings can be said to have been reached without any material on record or contrary to the material on record. In reaching this finding, there was no violation of law either inasmuch as the finding is consistent with the material on record. Even if there were two views possible and the Inquiry Officer has adopted one of these two views, this Court, while exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India, would not act as an appellate authority and would not take a contrary view and interfere with the finding by substituting its own view in place of the view taken by the enquiry officer, particularly, when the finding cannot be said to he wholly unreasonable, irrational, based on no material or wholly contrary to the materials on record. 18. It has been contended, on behalf of the petitioner, that the enquiry suffered from serious lapse of procedural requirements inasmuch as no witness was examined by, or on behalf of, the disciplinary authority and the relevant document, namely, the TA bill, in question, was not formally proved at the inquiry. It is, however, not in dispute that apart from the list of witnesses, a list of documents had also been submitted by the petitioner, which included the TA bill, in question. 19. It is, however, not in dispute that apart from the list of witnesses, a list of documents had also been submitted by the petitioner, which included the TA bill, in question. 19. While considering the above contention of the petitioner, it is of utmost importance to note that the contents of the TA bill, in question, were never in dispute in the sense that the petitioner had all along admitted that he had submitted TA bill for the period from 19.10.2000 to 29.10.2000 and he, upon receiving notice, as mentioned above, rectified his bill by claiming TA from 24.10.2000 to 29.10.2000. It becomes, therefore, crystal clear that notwithstanding the feet that the TA bill, in question, had not been exhibited or proved at the inquiry, by any officer, on behalf of the disciplinary authority, the contents of the TA bill, in question, remained undisputed. 20. In the circumstances, as indicated above, no prejudice can be said to have been caused to the petitioner. In feet, to a pointed query made by this Court, nothing could be submitted, on behalf of the petitioner, to show that the petitioner suffered any prejudice, because of the feet that the TA bill, in question, had not been formally proved by bringing in any witness. 21. A disciplinary inquiry, one has to bear in mind, is essentially an inquiry for the purpose of determining the guilt or otherwise of the employee, who is proceeded against. The procedural safeguards are required to be adhered to so that no prejudice is caused to the employee, who faces the inquiry. What an inquiry, therefore, requires is fair play and transparency and not technical adherence to the relevant rules. 22. In the case at hand, there was no prejudice caused to the petitioner and, therefore, no miscarriage of justice took place. The lapse, on behalf of the disciplinary authority, to examine a witness for the purpose of proving the TA bill, in question, cannot be considered so serious a lapse that it can be held to have rendered the finding of the inquiry officer not sustainable in law. This apart, the finding of the inquiry officer can, by no means, be regarded perverse inasmuch as sufficient cogent reasons have been assigned in support of the conclusion, which the inquiry officer has, eventually, reached. 23. This apart, the finding of the inquiry officer can, by no means, be regarded perverse inasmuch as sufficient cogent reasons have been assigned in support of the conclusion, which the inquiry officer has, eventually, reached. 23. While considering the question as to whether the failure to bring a witness to produce the TA Bill, in question, was so serious a lapse, on the part of the disciplinary authority, that it rendered the finding of the inquiry officer not sustainable in law, it also needs to be noted, if we may reiterate, that the TA Bill, which forms the subject matter of inquiry, was never in dispute inasmuch as the petitioner admitted that he had, indeed, submitted TA Bill, in question. What the petitioner had contended was that he had made a mistake in mentioning the date from 24th of October to 29 of October, 2000, and this mistake was unintentional and bona fide. 24. The only question, therefore, which remained to be answered by the inquiry officer, as already mentioned above, was whether the TA Bill, which the petitioner had submitted claiming TA from 19.10.2000 to 29.10.2000, was false. This apart, at the time of inquiry, the tour diary was asked for by, and furnished to, the petitioner and, hence, there is no scope to contend that the petitioner suffered from any prejudice. Moreover, and as has already been pointed out above, the petitioner adduced evidence by examining three witnesses. No prejudice or miscarriage of justice can, therefore, be said to have been taken place, when the petitioner has miserably failed to show as to what prejudice, if any, has been caused to him by not examining any witness, when the contents of the documents, which gave rise to the disciplinary proceeding against him, remained undisputed, unchallenged and not denied by him. The learned Tribunal, therefore, committed no error by refusing to interfere with the proceeding, which culminated into the impugned penalty. 25. In support of his contention that notwithstanding the fact that the TA Bill, in question, was admitted document, there ought to have been a witness, who ought to have produced the TA Bill at the time of inquiry. Mr. Dutta has referred to the case of Roop Singh Negi Vs. 25. In support of his contention that notwithstanding the fact that the TA Bill, in question, was admitted document, there ought to have been a witness, who ought to have produced the TA Bill at the time of inquiry. Mr. Dutta has referred to the case of Roop Singh Negi Vs. Panjab National Bank & Ors., (2009) 2 SCC 570 , wherein inquiry officer had substantially relied upon the confession, which had allegedly been made by the person, who faced the disciplinary proceeding. 26. While considering the case of Roop Singh Negi (supra), it needs to be noted that, in Roop Singh Negi (supra), the confession, which had, allegedly, been made by the person, who was proceeded against, was not, admitted to be true and voluntary and, in the circumstances, it was obvious that without examining the relevant witnesses and without proving the relevant documents, in accordance with law, the inquiry could not have been concluded and the guilt of the employee could not have been determined; whereas, in the present case, the document, in question, which is the basis for proceeding against the petitioner, was, admittedly, submitted by the petitioner. In fact, the observations, appearing in paragraph 15 and 16 of the Roop Singh Negi's case (supra), would bear this aspect, wherein the Supreme Court noted as under: 16. In Union of India v. H.C. Goel, it was held (AIR pp. 369-70, paras 22-23) 22.........The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of me Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney General's argument mat since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent. 23. That is why we are not prepared to accept the learned Attorney General's argument mat since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent. 23. That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind that the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test, which we can legitimately apply in dealing with this part of the respondent's case is there any evidence on which a finding can be made against the respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence laid in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well founded, because, in our opinion, the finding, which is implicit in the appellant's order dismissing the respondent that Charge 3 is proved against him is based on no evidence. (Emphasis supplied) 27. Because of what have been discussed and pointed out above, we do not find any reason to interfere with the order impugned in this writ petition. 28. (Emphasis supplied) 27. Because of what have been discussed and pointed out above, we do not find any reason to interfere with the order impugned in this writ petition. 28. The writ petition, therefore, fails and the same shall accordingly stand dismissed. No order as to costs. Petition dismissed.