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2014 DIGILAW 83 (KAR)

P. K. Veerabhadra v. Tobacco Board

2014-01-27

A.N.VENUGOPALA GOWDA

body2014
JUDGMENT 1. Petitioner is an employee of the 1st respondent. A charge sheet dated 27.01.2009, under Rule 14 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (for short 'the Rules') was issued alleging that while the petitioner was working as Senior Grading Officer and Incharge Auction Superintendent at Tobacco Board Auction Platform No. 61, Kamplapura, during 2008 failed to discharge his duty properly which resulted in investment of funds of Rs.3.50 crores in the banks by Sri K. Hanumantha Rao, Assistant Manager (Accounts) and signing on three cheques by the petitioner misusing his official position, in favour of Sri K. Hanumantha Rao, facilitated for transfer of office money of Rs.6,08,057/- to the personal account of Sri K. Hanumantha Rao. The CBI, Bangalore investigated the said issue and filed a case [C.C. No. 138/2010 (R.C.No.11/2009)]. The XXXII Addl. City Civil & Sessions and Special Judge for CBI Cases, Bangalore, on 01.12.2011, pronounced judgment convicting Sri K.Hanumantha Rao and the petitioner for the offences punishable under Ss.120-B, 468, 471, 420, 409 of IPC and S.13(1)(d) r/w S.13(2) of the Prevention of Corruption Act, 1988 and imposed separate sentences. The CBI, Bangalore vide a letter dated 09 12.2011 (Annexure-E) informed about the said conviction of the petitioner and the said communication was received by the office of the 1st respondent in the first week of May 2012. Petitioner having not informed his superior officers regarding his conviction by the Court as per the said judgment, alleging that he has violated the decisions of the Government of India and suppressed the information regarding judgment of conviction passed against him by the CBI Court, Bangalore and alleging violation of provisions of Rule 3(1) (i) & 3 (1)(iii) of CCS (Conduct) Rules, 1964 a Memorandum enclosing the Articles of Charge, imputations of misconduct along with list of documents and list of witnesses vide Annexure-A was served. Petitioner having submitted written statement of defence dated 18.07,2013 vide Annexure-F and the 2nd respondent having been appointed as Inquiring Authority on 23.09.2013 vide Annexure-G and the petitioner having been notified the date of inquiry on 18.11.2013 vide Annexure-J, the preliminary inquiry having been held on 27.11.2013 vide Annexure-K and the regular inquiry having been held on 16.01.2014 vide Annexure-L, this writ petition was filed to quash the Articles of charge vide the Memorandum as at Annexure-A. 2. Sri N.M. Muralidhar, learned advocate, firstly, contended that the judgment of conviction passed against the petitioner having been questioned in Crl.A.No.78/2012 and the sentence having been suspended on 18.01.2012 and the judgment of conviction also having been stayed on 05.07.2013 and the petitioner having brought the same to the notice of the Secretary of the 1st respondent-Board, on 10.07.2013 vide Annexure-D and also the written statement of defence submitted on 18.07.2013, the 1st respondent has committed material error in not dropping the charge and in appointing the 2nd respondent to hold the inquiry. Secondly, the Rules do not mandate that the fact of conviction should be brought to the notice of the official superiors and the petitioner having sent copies of the interim orders passed in Crl.A.No.78/2012 and the CBI also having sent to the 1st respondent, a communication with regard to fact of conviction, the initiation of disciplinary inquiry vide Annexure-A being arbitrary and illegal, interference is called for. 3. Perused the writ record. The point for consideration is whether Articles of Charge can be quashed during the pendency of the disciplinary inquiry? 4. Respondent having proposed to hold the inquiry under Rule 14, has served on the petitioner, a Memorandum dated 09.07.2013 vide Annexure-A. The charge that has been leveled against the petitioner being relevant, reads as follows: That the said Sri. P.K. Veerabhadra, Field Officer presently working in the Office of the Regional Manager, Tobacco Board, Mysore was alleged to have failed to communicate his superior authorities at Directorate of Auctions, Tobacco Board, Bangalore/Tobacco Board, Head Office, Guntur regarding the conviction orders dated 01.12,2011 in CC No.138/10 (RC 11/09) passed by the XXXII Addl. City Civil & Session and Special Judge for CBI cases, Bangalore convicting Sri. P.K. Veerabhadra, Senior Grading Officer (Now Field Officer). As per the decisions of Government of India under Rule 19 of CCS (CCA) Rules, 1965, it shall be the duty of Government servant who may be convicted in a Criminal Court to inform his official superiors of the fact of his conviction and the circumstances connected therewith, as soon as it is possible for him. Failure on the part of any Government servant to do so is considered as suppression of material information and attracts disciplinary action, apart from the penalty called for on the basis of the offence on which was conviction was based. Failure on the part of any Government servant to do so is considered as suppression of material information and attracts disciplinary action, apart from the penalty called for on the basis of the offence on which was conviction was based. Sri P.K. Veerabhadra, Field Officer has violated the Government of India's decisions and suppressed the information regarding the conviction orders passed against him by the CBI Court, Bangalore. Thus Sri P.K. Veerabhadra, Field Officer has violated the provisions of Rule 3 (1) (i) & 3 (1) (iii) of CCS (Conduct) Rules, 1964." (Italicised for emphasis) 5. Decision of the Government of India vide M.H.A., C).M.No.25/70/49-Estt., dated the 26th December, 1949, reads thus: "Intimation to be given to departmental Superiors regarding conviction: Attention is invited to Rules 55 and 55-A of the Civil Services (Classification, Control and Appeal) Rules and Section 240 (3) of the Government of India Act, 1935 (also Article 311 of the new Constitution) which provide thereunder that the procedure need not be followed in cases where a departmental penalty is to be imposed on a Government servant on the basis of facts which have led to his conviction in a Criminal Court. Dismissal etc. in such cases is not to La automatic; each case should be examined on its merits and orders imposing the appropriate penalty passed only where the charges against Government servant on which his conviction is based, snow that he was guilty of moral turpitude or of grave misconduct which is likely to render his further retention in service undesirable or contrary to public interest. In order that the departmental authorities of a Government servant who has been convicted by a Court of law, may be in a position co consider his case and pass suitable orders thereon, even Government servant is ordinarily expected to inform his departmental superiors of such conviction, whether the offence is of serious nature or is purely technical. Since, however, there is no specific requirement at present to do so, cases frequently occur in which Government servants concerned omit to inform their official superiors of the fact of their conviction which comes to light later from other sources. Since, however, there is no specific requirement at present to do so, cases frequently occur in which Government servants concerned omit to inform their official superiors of the fact of their conviction which comes to light later from other sources. In these circumstances it has been decided, and it is hereby made clear, that it shall hereafter be the duty of a Government servant who may be convicted in a Criminal Court to inform his official superiors of the fact of his conviction and as circumstances connected therewith, as soon as it is possible for him to do so. Failure on the part of any Government servant so to inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the penalty called for on the basis of the offence on which his conviction was based." (Italicised for emphasis) 6. Petitioner has submitted his written statement of defence dated 18.07.2013 vide Annexure-F. Except stating that he furnished copy of the interim order passed staying the order of conviction, the petitioner has not stated the date on which the fact of his conviction by the Special Judge for C3I Cases was informed to his official superiors. The writ petition does not contain averment with regard to the date on which the petitioner informed his official superiors of the fact of his conviction and circumstances connected therewith. When this case was argued on 22.01.2014, 23.01.2014 and 24.01.2014, the said material omission in Annexure-F and also in the writ petition was pointed out to Sri H.M. Muralidhar. An affidavit dated 26.01.2014 of the petitioner was filed. The material part thereof reads as follows: "2. I state that on 18.01.2012 this Hon'ble Court was pleased to pass an ad-interim order suspending the sentence passed in Special CC No. 138/2010. I have communicated the same to my employer orally and not remember the exact date, but us far as my memory goes, I have communicated the passing of the order within 2 to 3 days." (Italicised for emphasis) There is no categorical statement on the part of the petitioner as to when he informed his official superiors of the fact of his conviction by the Criminal Court and the matters connected therewith. Even the affidavit filed in this writ petition on 26.01.2014 is vague and unclear. Even the affidavit filed in this writ petition on 26.01.2014 is vague and unclear. In the circumstances, no exception can be taken for the 1st respondent in proposing to hold an inquiry under Rule 14 and in serving the Memorandum vide Annexure-A, on the petitioner, who is, ordinarily, expected to inform his official superiors of the fact of his conviction by the Court and the matters connected therewith. Petitioner having been convicted for an offence involving moral turpitude had the obligation to inform, without any delay, his official superiors of fact of his conviction and the matters connected therewith. The 1st respondent has alleged that on account of failure on the part of the petitioner to inform his official superiors with regard to judgment of conviction and the order of sentence, alleging that there is suppression of material information rendering himself liable for disciplinary action, the Memorandum vide Annexure-A was served on the petitioner, who, having filed his written statement of defence, can defend himself in the inquiry that is being conducted by the 2nd respondent. It is not the case of the petitioner that Annexure-A was issued mechanically and without application of mind. It is also not the case of the petitioner that Annexure-A has been issued by an authority not vested with the power. 7. In the case Of UNION OF INDIA AND ANOTHER Vo. KUNISETTY SATYANARAYANA, AIR 2007 SCW 607, a charge memo issued by the disciplinary authority, instead being replied was questioned by the employee and challenge having been upheld by the High Court, when the employer questioned the order, the Apex Court has held as follows: "14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet." (emphasis supplied) 8. In the case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS Vs. PRABHASH CHANDRA MIRDHA, (2012) 11 SCC 565 , Apex Court has held that the charge sheet/show-cause notice in the disciplinary proceeding does not infringe the right of the party and does not give rise to any cause of action and hence, writ petition challenging the charge sheet/show-cause notice by itself normally is not maintainable. Apex Court inter alia has held as follows: "8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings, or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. 10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. 12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has bean issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings ore not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings." (emphasis supplied) 9. Keeping in view the factual matrix, noticed supra, in my opinion, this is not the stage at which the petitioner can question Annexure-A. Normally, a charge sheet is not quashed prior to the conducting of the inquiry on the ground that the facts stated in the Memorandum/Articles of Charge are incorrect. I have refrained from recording any finding on facts relating to the alleged misconduct/charge leveled against the petitioner, since the disciplinary inquiry is still pending and any finding recorded at this stage may prejudice the case of either of the parties. Moreover, it is the function of the Disciplinary Authority, to find out and decide the truth or correctness of the charge. In view of the above, writ petition being not maintainable as against the impugned Memorandum - Articles of Charge is rejected. However, it is made clear that this order would not come on the way of the petitioner reiterating his defence, vide Annexure-F, in the disciplinary inquiry being conducted by the 2nd respondent.