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2016 DIGILAW 43 (TRI)

Surender Kumar v. Union of India

2016-02-18

DEEPAK GUPTA, U.B.SAHA

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JUDGMENT : DEEPAK GUPTA, J. This writ petition is directed against the order passed by the Central Administrative Tribunal, Guwahati Bench on 12th October, 2015 whereby the original application filed by the petitioner herein was dismissed and the Union of India was given 6(six) months further time to conclude the inquiry proceeding. 2. The petitioner herein is a member of the Indian Forest Service which is an All India Service. In the year 2008-2009 he was posted as Director in the Ministry of Development of North Eastern Region (DONER). Inquiry proceedings were initiated against him and basically the articles of charges against him were; (i) That while functioning as Director in (DONER) during the period of 2008-2009 the petitioner had failed to produce the documents to confirm that procedures were followed before placing orders for advertisements with audio-visual and print media agencies. (ii) That the petitioner while functioning as Director in DONER issued advertisements relating to publicity of liberalized LTC Scheme for travel to the North East Region with private parties without proper planning and evaluating financial impact on actual basis. (iii) That the petitioner while functioning in the aforesaid post failed to properly monitor his subordinate officers who signed the papers and placed advertisements with private companies without involving the Directorate of audio-visual publicity(DAVP). 3. At this stage it would be pertinent to mention that even at the stage before the inquiry proceedings were started an analysis had been conducted by the Director in the Ministry of Environment & Forests and he had also even before the inquiry proceedings were started had clearly opined after analyzing the reply of the petitioner that no financial loss had been caused and that the petitioner had not failed to perform any part of his duties and therefore, according to him no inquiry was required to be held. However, the senior officers did not agree with this report and finally an inquiry was held. 4. A perusal of the report of the Inquiry Officer clearly shows that the petitioner was exonerated of all the charges levelled against him and not a single charge was proved against him. 5. It would be pertinent to mention that the entire case was based on documents only and the petitioner filed a written reply before the Inquiry Officer. The presiding officer did not appear on the first date of inquiry i.e. 26th April, 2013. 5. It would be pertinent to mention that the entire case was based on documents only and the petitioner filed a written reply before the Inquiry Officer. The presiding officer did not appear on the first date of inquiry i.e. 26th April, 2013. Thereafter, on 24th July, 2013 another freshly pointed presiding officer appeared. This presiding officer did not want to produce any other evidence but wanted that the documents filed by the petitioner should be authenticated. These documents were got authenticated by the Inquiry Officer from the Ministry of Development of North Eastern Region(DONER). Thereafter, no further evidence was lead and on the basis of these documents the Inquiry Officer submitted a report, relevant portion of which reads as follows : “Inference I have gone through the records available in the case with reference to the articles of imputation of charges, and the statement of defence of the CO. In the present case, every step of the sequence of events is on record. The circumstances, the decisions, steps taken and outcomes are all evident. The following papers submitted by the CO and authenticated by the M/o DoNER as available with the records clarify the position appropriately. (i) Note from Secretary Ministry of DoNER dated 21.05.2008. (ii) Note from Joint Secretary, Ministry of DoNER dated 21.05.2008. (iii) Note from joint Secretary Ministry of DoNER dated 9.05.2008 (iv) Approval of Ministry of Information and Broadcasting dated 27.01.2010. The main charges against the CO, that he did not provide the files, documents looks unfounded on facts for the reasons explained by him, that he had left the Ministry in July 2008, and was in HPA when he was asked to provide the files. Earlier in May 2008, records (annexure 2 of the statement of defence) reveal that when the matter was placed before Secretary M/o DoNER by the HoD, the concerned file was with IFD (JS &FA). The other charges are common and relate to the action taken for pursuing the publicity without going through the prescribed process of approaching DAVP for advertisements. It is seen that the circumstances, when DAVP was not prepared to undertake the task, were such that demanded and alternative strategy for taking up the task, but not in violation of the principles of financial propriety. The annexure 2 of the statement of defence shows that action was taken by the Head of Division, Jt. It is seen that the circumstances, when DAVP was not prepared to undertake the task, were such that demanded and alternative strategy for taking up the task, but not in violation of the principles of financial propriety. The annexure 2 of the statement of defence shows that action was taken by the Head of Division, Jt. Secretary, for placing direct orders, at the existing DAVP rates, that too with the information of higher ups. The action was subsequently approved by the competent ministry (I & B). Incidentally, in this whole sequence of event, it is not clear on which step can the CO be specifically found culpable and charged. It is seen that the initial correspondence from the M/o DoNER was addressed to the JS, Director and the Under Secretary jointly or in similar words. Even the letters from the CVO DoNER have been sent in the same fashion. Thus specific role of the CO in the present case has not been clarified in the whole sequence of events. It is clear from the records that there has not been any specific role of CO in the whole sequence of events related to the case. In fact the head of Division, JS has taken all the actions pursued in this matter, and seems to have clarified every point related to it. In the circumstances, in light of all the facts available on records, the charges framed against the CO do not stand the scrutiny truth. It is recommended to drop the charged framed against the Charged Officer Shri Surrender Kumar.” (Dr S K Khanduri) Inquiry Officers 13.09.2013” 6. Thereafter, a copy of the inquiry report was sent to the petitioner by the Joint Secretary to the Government of India on 15th October 2013. The relevant portion of the letter reads as follows : “Sir, Please find enclosed herewith a copy of Inquiry Report dated 13th September, 2013 submitted by Dr. S.K. Khanduri, IGF(WL), MoEF, New Delhi, as the Inquiry Officer, into the charges leveled against Shri Surender Kumar, IFS (MT:1985). It is requested to make representation, if any, on the enquiry report with in 15 days from the date of receipt of this communication. In case no representation is received by the stipulated period, it will be considered that you have nothing to state in this regard. Yours faithfully, (Maninder Singh) Joint Secretary to the Govt. It is requested to make representation, if any, on the enquiry report with in 15 days from the date of receipt of this communication. In case no representation is received by the stipulated period, it will be considered that you have nothing to state in this regard. Yours faithfully, (Maninder Singh) Joint Secretary to the Govt. of India & Chief Vigilance Officer, Tele. No. 011-24362281” In this letter there is not even the slightest indication that the disciplinary authority disagreed with the findings of the Inquiry Officer. 7. The petitioner submitted a reply on 24th October, 2013 wherein he accepted the Inquiry report and stated that since he had already suffered a lot of agony due to the charge sheet, he prayed that the matter be expeditiously disposed of. The petitioner kept writing letters one after the other but received no reply. However, in September, 2014 he came to know that though no explanation had been sought from him with regard to any disagreement by the disciplinary authority the matter was being referred to the Union Public Service Commission and in this regard reference has been made to the memo dated 16th September, 2014. The petitioner somehow came to know about this memo and, thereafter, the petitioner approached the Central Administrative Tribunal. 8. The stand of the Union of India before the Central Administrative Tribunal was that the disciplinary proceedings had not ended and that the Disciplinary Authority did not agree with the findings of the Inquiry Officer. The relevant portion of the reply of the Union of India reads as follows: “That the Disciplinary Authority did not agree to the findings of the inquiry report and rejected the same on the ground that the applicant (C.O.) has committed procedural lapses in his discharge of duties and thus violated provisions under A/S (Conduct) Rules, 1968. The matter was then referred to CVC. CVC vide its O.M. dated 1.9.2014 has returned the case with the advice to consult UPSC in the matter in accordance with the instructions contained in CVC's Circular No.17/12/12 dated 07.12.2012.” No doubt this was the stand taken before the Central Administrative Tribunal but neither before the Central Administrative Tribunal nor before this Court has the note of disagreement being produced. That note has still not seen light of day. 9. That note has still not seen light of day. 9. Furthermore, we are clearly of the view that the tentative reasons for disagreeing with the report of the Inquiry Officer should have been conveyed to the petitioner before asking for his reply. Under the All India Service Rules, after an inquiry is conducted in terms of Rule 8 of the All India Services Rules. The action is to be taken as per the Rule 9 of the rules which reads as follows: “9. Action on the inquiry report.- (1) The disciplinary authority may, for reasons to be recorded by it in writing, remit the case to inquiring authority the further inquiry and report, and the inquiring authority shall Thereupon proceed to hold the further inquiry according to the provisions of rule 8 as far as may be. (2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement; refuse its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clause (i) to (iv) of rule 6 should be imposed on the member of the Service, it shall notwithstanding anything contained in rule 10, make an order imposing such penalty: Provided that, in every case the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the member of the Service. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clause (v) to (ix) of rule 6 should be imposed on the member of the Service, it shall make an order imposing such penalty and it shall not be necessary to give the member of the Service any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the member of the Service.” 10. Rule 9(1) empowers the Disciplinary Authority for reasons to be recorded in writing to remit the case to the Inquiry Officer and in this case even the views of the delinquent official may not be called for. No action has been taken under Rule 9(1). The purported action is under Rule 9(2) which clearly provides that the Disciplinary Authority shall forward or cause to be forwarded a copy of the inquiry report along with the tentative reasons for disagreement. Obviously these reasons are the reasons of the Disciplinary Authority and he must give reasons why he disagrees with the report of the Inquiry Officer. 11. In this case no such tentative reasons have been sent to the petitioner till the filing of this writ petition. How could the petitioner be in a position to reply to the tentative reasons if those reasons were not given to him. From October, 2013 till 15th February 2016 no such reasons were given. 12. Today Mr. B. Majumder, learned CGC has produced before us a copy of a letter dated 15th February, 2016 allegedly issued to the petitioner by the Deputy Secretary to the Government of India enclosing therewith a copy of note of the disagreement and the inquiry report dated 13th September, .2013. Mr. Surrender Kumar, petitioner in person states that he has not received this letter. Neither any affidavit nor any application has been filed to place on record this communication. 13. We have no doubt in our mind that this letter has been issued only to frustrate the writ petition. Mr. Surrender Kumar, petitioner in person states that he has not received this letter. Neither any affidavit nor any application has been filed to place on record this communication. 13. We have no doubt in our mind that this letter has been issued only to frustrate the writ petition. The inquiry was completed in September, 2013 and thereafter, the inquiry report was sent to the petitioner in October, 2013. Not a word has been stated why the tentative reasons for disagreement, if any, were not sent to the petitioner. Even today though the letter has been produced before us, the tentative reasons for disagreement have not been produced before us. We are not even clear what is the date of these tentative reasons. Therefore, we have no hesitation in concluding that the action of the respondents is totally violative of Rule 9(2) and there can be no action to impose penalty unless the officer concerned is given an opportunity to explain his position. 14. As far as reference to the Public Service Commission is concerned, in accordance with the proviso to Rule 9(3) reference to the Union Public Service Commission is only required to be done when penalty is sought to be imposed. In case no penalty is to be imposed and the Disciplinary Authority agrees with the report of the Inquiry Officer exonerate the official then there is no requirement for referring the matter to the Union Public Service Commission. 15. Lastly, Mr. Majumder has made reference to the second proviso of Rule 14. All we can say that this reference is totally misconceived. Rule 14 does not apply to the present case. Rule 14 will come into play only when a penalty is to be imposed on the basis of a criminal case or where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold an inquiry or where the President is satisfied that, in the interest of the security of the State it is not expedient to hold an inquiry. In all these cases reference has to be made to the Public Service Commission before imposing penalty. 16. In the present case even the grounds of disagreement were not communicated to the petitioner. The petitioner could not have been asked to give his views in the report without supplying him the tentative reasons. In all these cases reference has to be made to the Public Service Commission before imposing penalty. 16. In the present case even the grounds of disagreement were not communicated to the petitioner. The petitioner could not have been asked to give his views in the report without supplying him the tentative reasons. Seeing his views on the inquiry report without first informing him of the tentative reasons of disagreement is totally violative of the rules of natural justice. 17. We, therefore, have no hesitation in holding that the action contemplated by the respondents is totally illegal. The inquiry report has virtually been accepted by the Disciplinary Authority at the first instance when note was issued to the petitioner on 15th October, 2013 and therefore, the disciplinary proceedings should be closed against him. 18. The order of the Central Administrative Tribunal is, accordingly, quashed. The Union of India is directed to proceed further in the matter and issue necessary orders in compliance with the directions of this Court within 4(four) weeks from today. The petitioner shall be entitled for all other benefits in accordance with law. 19. The petition is disposed of in the aforesaid terms.