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2019 DIGILAW 875 (HP)

O. C. Thakur v. Central Administrative Tribunal

2019-07-05

TARLOK SINGH CHAUHAN, V.RAMASUBRAMANIAN

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JUDGMENT : V. Ramasubramanian, J. Aggrieved by the dismissal of his application by the Central Administrative Tribunal, challenging an order of penalty of reduction to the lowest stage in the time scale of pay till the date of retirement, an Officer of the All India Police Services, has come up with the above writ petition. 2. Heard Mr. K.D. Shreedhar, learned Senior Counsel for the petitioner, Mr. Rajesh Kumar Sharma, learned Assistant Solicitor General of India for respondents No. 2 and 3 and Ms. Ritta Goswami, learned Additional Advocate General appearing for respondents No. 4 and 5. 3. The petitioner was selected and appointed to the Indian Police Services in the year 1988. On 11.06.2008, he was served with a charge-sheet, alleging that while he was working as Superintendent of Police, Mandi in the year 1994, he failed to take cognizance of an offence of rape allegedly committed by the Station House Officer, Sadar and also that he discouraged the prosecutrix from getting herself medically examined. 4. An enquiry followed, in which all but the 3rd charge, were held not proved. At this juncture, it will be useful to extract the five Articles of Charges framed against the petitioner, which read as follows:- "1. Whether he has discouraged Smt. Nirmala Devi from getting herself medically examined immediately? 2. Whether he failed to discharge his lawful duties and responsibilities as prescribed under Rule 16.38 of the PPR exercising proper control and supervision over subordinate? 3. Whether he failed to exercise his power under Section 36 of Cr.P.C.? 4. Whether he failed to comply with the provisions of Rule 3.3(1) of All India Service Conduct Rules? 5. Whether he had kept Smt. Nirmala Devi (prosecutrix) waiting outside his office on 19.9.1994 for about 3 hours upto 5 P.M.?" 5. The petitioner was held guilty of the 3rd Charge alone and Charges 1, 2, 4 and 5 were held not proved. After supplying a copy of the Enquiry Report and calling for his further representation, the Competent Authority, namely the 3rd respondent, took a provisional decision to impose a minor penalty of Censure. This was in view of the fact that even Charge No. 3 was held only partly proved and not fully proved. 6. The proposal of the 3rd respondent-State Government was forwarded to the Union Public Service Commission, which is the 2nd respondent herein, for their concurrence. This was in view of the fact that even Charge No. 3 was held only partly proved and not fully proved. 6. The proposal of the 3rd respondent-State Government was forwarded to the Union Public Service Commission, which is the 2nd respondent herein, for their concurrence. The Union Public Service Commission disagreed with the proposed penalty and recommended the penalty of reduction to the lowest stage in the existing time scale of pay till the age of retirement. Accordingly, the punishment was imposed by the order dated 06.03.2010. The petitioner subsequently got superannuated on 30th November, 2010. 7. Challenging the said penalty, the petitioner filed Original Application No. 235-HP of 2010 on the file of the Central Administrative Tribunal. The Tribunal dismissed the application on the ground that the Rules of Procedure had been followed and that there was also no violation of the principles of natural justice. Aggrieved by the said order, the petitioner has come up with the above writ petition. 8. It is relevant to note that the complaint of the lady, which formed the basis for disciplinary proceedings, resulted in a Criminal Case against the Station House Officer, Mandi. It also resulted in his conviction. When the matter was taken on appeal to the High Court, the High Court made certain observations about the failure on the part of the petitioner to discharge his duties as a Superior Officer. It was the said observation of the High Court that led to major penalty proceedings being initiated against the petitioner. This has perhaps weighed in the mind of the Central Administrative Tribunal in confirming the major penalty imposed upon the petitioner. 9. But as rightly pointed out by the learned Senior Counsel for the petitioner, Charges 1, 2, 4 and 5 are more grievous in nature than the 3rd Charge. The Enquiring Authority held these four Charges not proved. Neither the Disciplinary Authority nor even the Union Public Service Commission disagreed with the findings of the Enquiry Officer with respect to Charges 1, 2, 4 and 5. As an employer, the Government had the power and authority to disagree with the findings of the Enquiry Officer even in respect of Charges 1, 2, 4 and 5, but they did not do so. As an employer, the Government had the power and authority to disagree with the findings of the Enquiry Officer even in respect of Charges 1, 2, 4 and 5, but they did not do so. A look at the recommendations of the Union Public Service Commission would show that even the Union Public Service Commission did not come to a different conclusion with respect to Charges 1, 2, 4 and 5. 10. Once the findings of the Enquiry Officer with respect to more grievous Charges have been accepted by the employer and not even found fault by the Union Public Service Commission, then the only question to be considered was as to whether the penalty proposed was proportionate or disproportionate to the Charge held proved. 11. Let us now come to the findings of the Enquiry Officer with respect to Charge No. 3. The findings, extracted in the order of the Central Administrative Tribunal, read as follows:- "(c) As per the section 36 Cr.P.C. Police Officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. The Charged Officer Shri O.C. Thakur, soon after hearing the complainant has taken immediate action by speaking to the Incharge, Police Post, Mandi on telephone and directed him to register a case as soon as the complainant reports at the police Post Mandi. However, nothing would have stopped the SP from taking recourse to Section 36 Cr.P.C. and register a case himself against the SHO Sadar, Mandi. Nevertheless he has taken all steps to ensure that the case is registered against the SHO and informed the DM requesting him to initiate action under 16.38 PPR." 12. Considering the gravity of the misconduct arising out of Charge No. 3, the Competent Authority, namely the 3rd respondent, chose only to impose a minor penalty of Censure. A look at the recommendations of the Union Public Service Commissioner would show that the Union Public Service Commission did not even examine the correctness of the conclusion reached by the State Government. 13. The recommendations made by the Union Public Service Commission by its letter dated 25.11.2009, comprises of six paragraphs. The second paragraph extracts the Charges against the petitioner. 13. The recommendations made by the Union Public Service Commission by its letter dated 25.11.2009, comprises of six paragraphs. The second paragraph extracts the Charges against the petitioner. Sub paragraph (1) of paragraph 2 gives an indication of the statement of imputations of misconduct. The 3rd paragraph records as to what happened in the Enquiry. The 4th paragraph, which comprises of six sub-paragraphs, records the statements made by various witnesses in the course of the Enquiry, the conclusion reached, the observations of the High Court in the Criminal Appeal etc. The only portion of the recommendations of the Union Public Service Commission, where an independent analysis of the whole case could be found, are in Paragraphs 4.6 and 4 (after paragraph 4.6, the next paragraph has been numbered again as Paragraph 4, perhaps by typographical mistake). These two paragraphs, containing the recommendations dated 25.11.2009 of the Public Service Commission, read as follows:- "4.6 The Commission have carefully examined the records of the case including court orders, the IO's report representations made by the MOS, DA's comments and other related documents to come to the conclusion that the MOS should have taken recourse to Section 36 Cr.P.C. and himself had registered a case against the accused SHO, PS, Mandi instead of directing the victim to the Police Post, Mandi. The MOS was obliged by the spirit of Section 36 Cr.PC to register a case and to this extent MOS is guilty of component-3 of the Article of charge. 4. In the light of the observations and findings as discussed above and after taking into account all other relevant aspects of the case, the Commission consider that the ends of justice would be met in this case if the penalty of reduction to the lowest stage in the existing time scale of pay till the date of his retirement is imposed on the MOS, Shri O.C. Thakur. They advise accordingly." 14. A careful look at the portion of the recommendations of the Union Public Service Commission, extracted above, would show that after concurring with the findings of the Enquiry Officer that Charge No. 3 stood proved, the Union Public Service Commission suddenly jumped to the conclusion in Paragraph No. 4 that a penalty of reduction to the lowest stage in the time scale of pay till the date of retirement had to be imposed. There is no whisper in the entire recommendations of the Union Public Service Commission as to how the decision of the Competent Authority, namely the 3rd respondent, to impose the penalty of Censure was vitiated. 15. The Union Public Service Commission did not come to the conclusion that the gravity of Charge No. 3 held proved against the petitioner was such that it warranted the penalty recommended by them. Therefore, it is clear that instead of acting as an Advisory Authority, the Union Public Service Commission donned the role of the Original Authority to independently come to the conclusion. This is not what the Union Public Service Commission is called upon to do. 16. On the role of the Union Public Service Commission, it was pointed out by the Hon'ble Supreme Court in Union of India and another versus T.V. Patel, (2007) 4 SCC 785 that the role given to the Public Service Commission under sub Clause (c) of Clause (3) of Article 320 of the Constitution, was to provide advice to the Government. The question as to whether the consultation with the Commission under Article 320 (3) (c) was mandatory or not and the question whether it is binding or not, fell for consideration before a Constitution Bench of the Hon'ble Supreme Court in State of Uttar Pradesh versus Manbodhan Lal Srivastava, (1957) AIR SC 912. The Court indicated that if the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to accept or not to accept the advice of the Commission. 17. Therefore, the role of the Union Public Service Commission is to find out whether the conclusion reached by the Competent Authority was fair, arbitrary or unjust and to tender necessary advice. The Union Public Service Commission cannot independently come to a different conclusion as though, they have the role of the Disciplinary Authority. In this case, the Union Public Service Commission did not consider either the question of proportionality or the question as to whether the Competent Authority was justified in reaching the conclusion to impose the minor penalty of Censure. 18. It is true that while dealing with Criminal Appeal No. 393/2003, a Bench of this Court directed major penalty proceedings to be initiated against the petitioner. 18. It is true that while dealing with Criminal Appeal No. 393/2003, a Bench of this Court directed major penalty proceedings to be initiated against the petitioner. But it does not necessarily mean that either a penalty should invariably be imposed or a major penalty alone should be imposed. The direction issued by this Court in Criminal Appeal No. 393/2003 to initiate major penalty proceedings against the petitioner cannot be taken to be a finding of guilt. If the same is taken to be a finding of guilty, there is no necessity to hold disciplinary proceedings at all. Therefore, the directions issued by this Court while dealing with the Criminal Appeal will not prevent us from independently examining the outcome of the enquiry. 19. In the course of the enquiry, the Enquiry Officer found Charges 1, 2, 4 and 5 not proved. The Disciplinary Authority accepted the findings. Even the Union Public Service Commission did not find fault with the findings of 'not proved' with respect to Charges 1, 2, 4 and 5. Therefore, we are of the considered view that the imposition of the penalty of reduction to the lowest stage in the existing time scale of pay was grossly disproportionate to the only Charge held proved against the petitioner. 20. The Administrative Tribunal, in its order dated 10.12.2010, merely considered the question of violation of principles of natural justice and the adherence to the Rules of Procedure. In fact, the petitioner did not and could not challenge the penalty of Censure. His challenge before the Tribunal was the imposition of the penalty recommended by the Union Public Service Commission, on the ground that it was disproportionate. On this aspect, the Tribunal did not dwell deep upon. Therefore, the order of the Tribunal calls for interference. 21. An important aspect, that has been lost sight of both by the Government and by the Central Administrative Tribunal, is that under Fundamental Rule 29(1), the Authority ordering reduction to a lower stage in the time scale of pay of a Government servant, as a measure of penalty, should actually state the period for which it shall be effective and whether on the restoration, it will operate to postpone future increments and if so, to what extent. F.R 29(1) reads as follows: "F.R. 29.(1) If a Government servant is reduced as a measure of penalty to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent." 22. In this case, the order of penalty is dated 06.03.2010. The petitioner retired on reaching the age of superannuation on 30.11.2010. The date, on which his increment was to fall due, was not even noted in the order dated 06.03.2010. Interestingly, the recommendation made by the Public Service Commission is dated 25.11.2009. In the recommendation itself, the UPSC recommended the penalty of reduction to the lowest stage in the time scale of pay till the date of his retirement. On the date on which the UPSC made its recommendation, namely 25.11.2009, the petitioner was left with service for a full period of one year up to 30.11.2010. Therefore, if the intention of the UPSC and that of the State Government was to impose the penalty operative for a period of one year, they must have specified as to what should happen after completion of the period of one year. A penalty of this nature imposed at a time coinciding with the date of retirement of a Government servant, would actually impact the retirement benefits and the pensionary benefits of a Government servant. Therefore, such an impact should have been taken note of by the respondents before passing the orders. 23. Way back in the year 1970, the Government of India issued clarifications on the purport of F.R 29(1) in D.G., P. and T., Letter No. 6/8/70-Disc. 1, dated the 16th December, 1970. The first part of the aforesaid letter, which is found in Swamy's Compilation of FRSR reads as follows: "(2) Reduction to a lower stage in timescale.- Doubts have been expressed in regard to the exact interpretation of sub-rule (1) of FR 29. 1, dated the 16th December, 1970. The first part of the aforesaid letter, which is found in Swamy's Compilation of FRSR reads as follows: "(2) Reduction to a lower stage in timescale.- Doubts have been expressed in regard to the exact interpretation of sub-rule (1) of FR 29. The same are clarified as follows:- (a) Every order passed by a competent authority imposing on a Government servant the penalty of reduction to a lower stage in a timescale should indicate- (i) the date from which it will take effect and the period ( in terms of years and months) for which the penalty shall be operated; (ii) the stage in the time-scale (in terms of rupees) to which the Government servant is reduced; and (iii) the extent ( in terms of years and months), if any, to which the period referred to at (i) above should operate to postpone future increments. It should be noted that reduction to a lower stage in a time-scale is not permissible under the rules either for an unspecified period or as a permanent measure. Also when a Government servant is reduced to a particular stage, his pay will remain constant at that stage for entire period of reduction. The period to be specified under (iii) should in no case exceed the period specified under (i)". 24. It is clear from the above that reduction to a lower stage in a time scale of pay is not permissible either for an unspecified period of time or as a permanent measure. Reduction in the time scale of pay up to the date of retirement is actually a permanent measure. 25. Under the All India Services (Discipline and Appeal) Rules, 1969, a person belonging to the service may be imposed with a penalty of reduction to a lower stage in the time scale of pay for a specified period. Rule 6(1)(v) of the All India Services (Discipline and Appeal) Rules, 1969 shows that reduction to a lower stage in the time scale of pay should only be for a specified period with a further direction as to whether or not, members of the service will earn increments during the period of reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing future increments of his pay. Therefore, a simple order of reduction to lower stage in the time scale of pay until the date of retirement, without considering the impact of such reduction either upon the future increments or upon the pensionary benefits, is not permissible. Even this aspect was not taken into account by the respondents. Therefore, the impugned order of penalty is liable to be set aside. 26. We must also record the fact that the recommendations of the Union Public Service Commission were made on 25.11.2009. The order of penalty pursuant to the recommendations of the Union Public Service Commission was made on 06.03.2010 and the petitioner reached the age of superannuation on 30.11.2010. Therefore, after having completed his tenure in the higher post and towards the end of his career, this penalty of reduction to the lowest stage in the time scale of pay came to be issued. 27. Accordingly, the writ petition is allowed and the impugned order dated 10.12.2010 (Annexure P-17) of the Central Administrative Tribunal is set aside. The application filed by the petitioner in OA No. 235-HP of 2010 shall stand allowed and the order of penalty dated 06.03.2010 (Ext. P-9) is also set aside. The Competent Authority shall recalculate the difference in salary payable to the petitioner, on account of the impugned order being set aside. The Competent Authority shall also recalculate the terminal and the pensionary benefits payable as a result of this order and shall disburse all the benefits within three months from the date of receipt of a copy of this order. 28. Pending application(s), if any, also stand disposed of.