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2022 DIGILAW 227 (GAU)

Lanjewar Alok Kumar Udaychand v. Union of India

2022-03-06

NELSON SAILO

body2022
JUDGMENT : Heard Mr. A.R Malhotra, learned counsel for the petitioner and Ms. Zairemsangpuii, learned CGC appearing for the respondents. 2. By filing this writ petition, the petitioner has challenged the Order dated 19.02.2020 (Annexure-5), by which he has been imposed with a minor penalty of withholding one increment of pay for a period of 1 (one) year w.e.f. 01.07.2020, without cumulative effect and not adversely affecting his pension by the respondent No. 5 in exercise of powers conferred by Rule 11 (iv) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (CCS CCA Rules). The petitioner has also challenged the Speaking and Reasoned Order passed by the respondent No. 4 on 16.06.2020 (Annexure-7) rejecting the appeal preferred by the petitioner and confirming the penalty imposed upon him by the respondent No. 5. 3. Brief facts of the case is that the petitioner who is working as Junior Engineer (Civil) under the respondent No. 3 organization was issued a Show-Cause Notice dated 14.12.2019 stating that he left from 71 RCC (GREF) w.e.f. 11.10.2019 without taking leave certificate and without informing concerned officials and Section-In-Charge which showed casual attitude and setting an example of indiscipline before other troops. Further, his wife submitted an application on 20.10.2019 to the higher authorities and by-passed the channel of command which resulted in violation of the provisions of Rule 20 of the Central Civil Services (Conduct) Rules, 1964 (CCS Conduct Rules), rendering him of unbecoming a Government Servant. He was therefore asked to explain within 10 days why disciplinary action should not be taken against him for his casual attitude, indiscipline and unbecoming conduct and failing which, necessary disciplinary action under the CCS (CCA) Rules will be initiated against him. 4. The petitioner submitted his reply to the respondent No. 5 on 31.12.2019 explaining that it was due to his illness that he had to leave the station and despite applying for leave, leave was not granted to him by the Officer Commanding 71 RCC (GRRF). He, therefore, sent an E-Mail to the State Authority on 10.10.2019 before leaving station. He also stated that the Officer Commanding granted him leave for the period of his absence, after he joined back his duty and was declare medically fit. Under the circumstance, the petitioner requested that disciplinary action may not be taken against him. 5. He, therefore, sent an E-Mail to the State Authority on 10.10.2019 before leaving station. He also stated that the Officer Commanding granted him leave for the period of his absence, after he joined back his duty and was declare medically fit. Under the circumstance, the petitioner requested that disciplinary action may not be taken against him. 5. The respondent No. 5, however, issued Memorandum dated 07.01.2020 by which, it was provided that action against the petitioner was proposed under Rule 16 of the CCS (CCA) Rules and therefore, he was given 10 days’ time to submit his representation. Along with memorandum, the statement of the imputations of misconduct was given to the petitioner. The petitioner submitted his reply against the Memorandum of 22.01.2020 denying the charges leveled against him but however, the respondent No. 5 vide Order dated 19.02.2020 imposed a minor penalty upon the petitioner in the manner as already stated herein above. On submitting an appeal against the order of penalty, the same was rejected by the appellate authority. Aggrieved, the petitioner is before this Court. 6. Mr. A.R Malhotra, learned counsel for the petitioner submits that it was on account of his illness that the petitioner had left the station but before doing so, the petitioner had submitted his application for leave before the Controlling Officer on 09.10.2019 which however was not allowed. He then submitted his leave application by E-Mail to the Officer Commanding 71 RCC (GREF) on 10.10.2019 and thereafter, left the station on 11.10.2019. His wife being worried about the situation in the home-front as well as for the petitioner, submitted an application/representation to the respondent authorities on 20.10.2019. In response to the representation, the respondent authority granted 15 days leave to the petitioner and the same was sent by post to his home address. The leave permission/certificate was received by the petitioner’s wife on 14.11.2019, which was after the petitioner had already joined back to his duty on 30.10.2019. The learned counsel further submits that as per the statement of imputations of misconduct, the petitioner was charged of not handing over his charge to his reliever JagdishSaran, as per Department procedure before proceeding on leave. The petitioner was said to be at Headquarters 71 RCC during the period w.e.f. 05.10.2019 to 11.10.2019 but he did not complete the handing over of the charge during the said period. The petitioner was said to be at Headquarters 71 RCC during the period w.e.f. 05.10.2019 to 11.10.2019 but he did not complete the handing over of the charge during the said period. He also did not obtain clearance from the concerned sector OIC/Section of HQ 71 RCC. The petitioner was said to have submitted his application for leave on the ground of medical treatment on 09.10.2019 but before the leave was sanctioned by the competent authority, he left the station and therefore, his leave certificate was dispatched to his home address. 7. The learned counsel submits that although the statement of imputation of misconduct states that the petitioner left station before the petitioner was granted leave but at the same time, the leave certificate issued to the petitioner is dated 10.10.2019 and the same indicates the date and time of his departure for leave as 10.10.2019 FN. Therefore, there is clear contradiction on the stand taken by the respondents. 8. The learned counsel further submits that the impugned penalty was imposed upon the petitioner without the disciplinary authority having arrived at the conclusion that a detailed Departmental proceeding by appointing an Enquiry Officer and Presenting Officer was not necessary. He submits that a decision in this regard by giving reasons thereof is required to be taken by the Disciplinary Authority in terms with Rule 16 of the CCS (CCA) Rules before proceeding to impose a penalty upon the petitioner. The same having not been done, the impugned order of penalty and the rejection of the petitioner’s appeal by the appellate authority should be interfered with by this Court. In support of his submission, Mr. A.R Malhotra relies upon the case of Kamal Kanti Debnath vs. State of Tripura & Ors., 2005 (Suppl.) GLT 400. 9. Ms. Zairemsangpuii learned CGC, on the other hand, submits that the petitioner by leaving the station without first obtaining the permission of the competent authority has shown indiscipline. He has also set as bad example for others in the organization. The action of the petitioner amounts to commission of a misconduct and for which, he was imposed with a minor penalty under the CCS (CCA) Rules after observing all the formalities. Before imposing the minor penalty, the respondent authority concerned had given due opportunity to the petitioner to show cause as to why disciplinary action should not be taken against him for his misconduct. Before imposing the minor penalty, the respondent authority concerned had given due opportunity to the petitioner to show cause as to why disciplinary action should not be taken against him for his misconduct. It was only after giving him such opportunity that the minor penalty was imposed upon the petitioner. As such, the orders impugned by the petitioner may not be interfered with by this Court. The learned CGC has also produced the Departmental records and from the records the learned CGC submits that the disciplinary authority after giving due opportunity of explaining and representing to the petitioner on the charge framed, decided that holding of enquiry was not necessary and instead a minor penalty should be imposed against him. It was, therefore, clear that the disciplinary authority had taken a conscious decision of not holding a Departmental enquiry in view of the decision to impose a minor penalty upon the petitioner. She, therefore, submits that the writ petition has no merit and the same should be dismissed. 10. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 11. From the Memorandum dated 07.01.2020, the proposed action to be taken against the petitioner under Rule 16 of the CCS (CCA) Rules was on account of not handing over charge before proceeding of leave despite being available in station w.e.f. 05.10.2019 to 11.10.2019. The petitioner was said to have applied for leave on 09.10.2019 but before the same could be sanctioned, he left station and therefore, the leave certificate granted to him had to be dispatched to his home address. The memorandum states that the petitioner was in station up to 11.10.2019 but the leave that was granted to him as per the leave certificate is on 10.10.2019 showing the date and time of his departure as 10.10.2019 FN. The leave certificate is annexed by the respondents as Annexure-II in their counter affidavit filed on 13.06.2022. Therefore, there appears to be some contradiction in the stand taken by the respondents. The further contradiction which has arisen is that according to the respondents, the petitioner’s wife submitted a representation to the respondent authorities concerned on 20.10.2019 and pursuant thereto, leave was granted to the petitioner and the same was dispatched to his home address. Therefore, there appears to be some contradiction in the stand taken by the respondents. The further contradiction which has arisen is that according to the respondents, the petitioner’s wife submitted a representation to the respondent authorities concerned on 20.10.2019 and pursuant thereto, leave was granted to the petitioner and the same was dispatched to his home address. The leave certificate was received by the petitioner’s wife on 14.11.2019 and by which time, the petitioner had already joined back in duty i.e. on 13.10.2019. 12. What can be further noticed is that according to the respondents, one JagdishSaranwas the officer to relieve the petitioner in view of his leave application. The same can be seen in paragraph No. 2 of the statement of imputations of misconduct issued to the petitioner. However, there are no other details as to how and to whom the petitioner should hand over the charge before proceeding on leave. The Leave Certificate dated 10.10.2019 issued to the petitioner also does not disclose any names for the petitioner to hand-over the charge. Therefore, without any substantiation, the statement of imputation of misconduct will have to be accepted at its face value only. 13. Rule 16 of CCS (CCA) Rules provides for the procedure for imposing minor penalties. Rule 16 (i)(b) further provides that subject to the provisions of sub-Rule (5) of Rule 15, no order imposing on a Government servant any of the penalties specified in Clause(i) to (iv) of Rule 11 shall be made accept after holding an enquiry in the manner laid down in sub-Rule (3) to (24) of Rule 14, in every case in which the disciplinary authority is of the opinion that such enquiry is necessary. Below Rule 16, the Govt. of India, Department of Personnel & Training, O.M No. 11012/18/85-Estt. (A) dated 28.10.1985 has been quoted. Paragraph No. 2 of the Govt. of India’s decision provides that on receipt of representation of Government servant concerned on the imputations of misconduct or misbehavior communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed enquiry and form an opinion whether an enquiry is necessary or not. of India’s decision provides that on receipt of representation of Government servant concerned on the imputations of misconduct or misbehavior communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed enquiry and form an opinion whether an enquiry is necessary or not. In a case where a delinquent Government servant has asked for inception of certain documents and cross-examination and the prosecution witnesses, a disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that an enquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the Disciplinary Authority could, after due consideration, come to the conclusion that an enquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding enquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice. A Co-ordinate Bench of this Court in Kamal Kanti Debnath(supra)in the given facts of that case while appreciation the provision of Rule 16 of the CCS (CCA) Rules at paragraph No. 9 of the judgment held as follows:- “9. It is, therefore, evident from Clause (b) of sub-Rule (1) of Rule 16 of the Rules, that a discretion is given on the disciplinary authority either to hold an enquiry or not to hold it. Such discretion given to the authority cannot be exercised whimsically and without any basis. The authority before exercising the discretion, therefore, has to record the reason as to why it has decided not to hold an enquiry before imposing any minor penalties specified in Clauses (i) to (iv) of Rule 11 of the Rules, as by exercising the discretionary power of not holding an enquiry, the authority is going to deprive the employee from his right to defend himself in a regular disciplinary proceeding. It also appears from the sub-Rule (1-A) of Rule 16 of the Rules that holding of the regular enquiry is a must, if the penalty of withholding increments adversely affect the amount of pension payable to the Government servant. It also appears from the sub-Rule (1-A) of Rule 16 of the Rules that holding of the regular enquiry is a must, if the penalty of withholding increments adversely affect the amount of pension payable to the Government servant. Reading the Rule 16 as a whole, it is therefore, evident that the authority before deciding not to hold an enquiry, by exercising its discretionary power, has to record the reason that the proposed penalty will not adversely affect the amount of pension payable to the Government servant and such discretion can only be exercised by recording reason for not holding an enquiry.” 14. In coming to the above conclusion, this Court further observed that in the name of exercise of discretion, the authority cannot act whimsically or arbitrarily and that it must be reasonable and fair. The discretionary jurisdiction, though may be wide but it must be exercised fairly and bonafide, more so when its exercised invites adverse civil consequence to a party. Exercise of such discretion is open to judicial review and therefore, must answer the test of reasonableness. This finding and observation was in response to the stand of the respondent in their counter affidavit that under Rule 16 of the CCS (CCA) Rules, no enquiry is necessary. The finding in my considered view is squarely applicable to the present case and I agree with the view taken. Although the learned CGC has pointed out from the records that the disciplinary authority in view of the imposition of minor penalty of holding of increment of pay for a period of one year without cumulative effect and not adversely affecting the pension, found that the holding of an enquiry was not necessary but however, this Court finds that this view has been expressed post imposition of the penalty upon the petitioner and not before the penalty was imposed upon him. In fact, the observation is a part of the write-up prepared by the Assistant Administration Officer for the respondent No. 5, while forwarding the appeal submitted by the petitioner to the respondent No. 4. As such, the same cannot be construed to be an opinion formed by the disciplinary authority and recorded in writing with reasons prior to deciding not to hold a Departmental enquiry. Further, a specific averment in this regard has been made by the petitioner in paragraph No. 13 of the writ petition. As such, the same cannot be construed to be an opinion formed by the disciplinary authority and recorded in writing with reasons prior to deciding not to hold a Departmental enquiry. Further, a specific averment in this regard has been made by the petitioner in paragraph No. 13 of the writ petition. In reply to this averment, the respondents at paragraph No. 14 of their counter affidavit have only stated that for Departmental enquiry under Rule 16 of the CCS (CCA) Rules, appointment of enquiry officer is not mandatory. Nothing has been mentioned about the respondent No. 5 having recorded reasons in deciding not to hold an enquiry before imposing the minor penalty upon the petitioner. 15. Thus upon due consideration of the matter in its entirety, I find merit in the writ petition, and accordingly, the impugned Order dated 19.02.2020 and the Speaking & Reasoned Order dated 16.06.2020 (Annexure-5 & 7 respectively) are hereby set aside. Having answered the writ petition in the above manner and also having regard to the nature of penalty imposed upon the petitioner, liberty is not given to the respondents to initiate a fresh proceeding, on the charge/imputations of misconduct in the present case. 16. With the above observations and directions, the writ petition stands disposed of. No costs.