Judgment:
Hon'ble Dr.K.B.S.Rajan, Judicial Member
For certain alleged misconducts in preferring travel claims pertaining to the period of 1989-90 and in preferring an office note in connection with purchase of a photo-maker machine, charge memo was issued to the applicant in 2001 and the applicant had denied the charges.
The Disciplinary Authority (Administrator, U.T. of Lakshadweep Islands) which initiated the proceedings continued to act in that capacity till the inquiry report was submitted in August 2002 (whereby all the charges stood proved) and thereafter, by an order passed in April 2006 empowering the Secretary, Information Publicity and Tourism, U.T. of Lakshadweep, the said authority imposed a penalty upon the applicant on the basis of the inquiry report. The earlier disciplinary authority (i.e. the Administrator) functioned as an appellate authority which dismissed the appeal preferred by the applicant. Meanwhile the applicant approached the Tribunal in OA No. 373/2006 which was disposed of with a direction to finalize the appeal. The applicant has challenged the charge memo, disciplinary authority's order, and appellate authority's order on various grounds as contained in para 5 of the O.A.
2. Brief facts as contained in the O.A.
The applicant was served with a Charge Sheet dated 20 Jan 2001 vide Annexure A2. The charges in them are six in number and the same are as under:
ARTICLE I
That the said Shri. P. Mohammedkoya, Publicity Officer in the Department of Information Publicity and Tourism (Now working as Officer on Special Duty, Lakshadweep Development Corporation Ltd., on work arrangement basis) while functioning as Information Assistant cum Photographer, Photo Unit, Kavaratti during 198990 preferred a false TA claim of Helicopter charges for the journey from Kavaratti to Agatti on 4.5.89 and from Agatti to Kavaratti on 14.5.89 without actually performing the journey by helicopter.
By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS(Conduct) Rules, 1964.
ARTICLE II
That the said Shri. P. Mohammedkoya, Publicity Officer while working as aforesaid during the aforesaid period a false TA/DA claim in connection with his alleged tour to Kalpeni for the period from 17th to 26th May, 1989.
By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS(Conduct) Rules, 1964.
ARTICLE III
That the said Shri. P.Mohammedkoya, Publicity Officer while functioning as aforesaid during the aforesaid initially presented a TA/DA claim for official tour stating that he travelled from Kavaratti on 15.06.89, and reached Amini on 15.6.89 by helicopter and subsequently represented vide his application dated 30.03.90 for sanction of helicopter charges from Kavaratti to Amini for journey on 14.06.89 and obtained approval of the Ministry of Home Affairs for travel by helicopter on 14.06.89 by hiding real facts before the authorities.
By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS(Conduct) Rules, 1964.
ARTICLE IV
That the said Shri. P.Mohammedkoya, Publicity Officer while functioning as aforesaid during the aforesaid period made a false TA claim on tour for reimbursement of helicopter fare from Minicoy to Kavaratti on 02.08.89 vide his application dated 30.03.1990 without actually performing the journey by helicopter on 02.08.89 from Minicoy to Kavaratti.
By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS(Conduct) Rules, 1964.
ARTICLE V
That the said Shri.P.Mohammedkoya, Publicity Officer as aforesaid during the aforesaid period by misguiding the higher authorities and furnishing false information got ex-postfacto approval for journey by air on official duty, from the Ministry of Home Affairs vide their letter No.U.14046/46/89-ANL dated 27.10.90.
By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS(Conduct) Rules, 1964.
ARTICLE VI
That the said Shri. P.Mohammedkoya, Publicity Officer while functioning as aforesaid during 1992-93 misguided higher authorities in note file and corrected draft message relating to purchase of one number of photo maker and its accessories for direct purchase from M/s.Trade Links Enterprises, Kochi violating the order of Administrator for purchasing photo maker after observing purchase formalities and after ensuring DGSandD rates. Thereby the Administration sustained financial loss and attracted audit objection of Accountant General, Kerala.
By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS(Conduct) Rules, 1964.
3. The applicant denied the charges consequent to which the enquiry was ordered and presenting officer, and Enquiry Officer appointed. In the course of enquiry, the applicant having found some bias in the conduct of the Enquiry Officer had approached the Disciplinary Authority in respect of the same, but the Disciplinary Authority had rejected the request for change of Enquiry Authority. The Enquiry Authority has rendered its report dated 06/08/2002 holding that all the above charges stood proved (Annexure A5 refers). The applicant has given his representation against the same vide Annexure A6, representation dated 12 Nov 2002. The case of the applicant is that while the disciplinary proceedings were initiated by the 2nd respondent, w.e.f. 12.4.2005 the 3rd respondent assumed the power of the Disciplinary Authority and it was that Disciplinary Authority who passed Annexure A1 order dated 31/01/2006, imposing major penalty of reduction of pay by four stages for 4 years and corresponding deferment of increment in the said period with cumulative effect, and the same is illegal and without jurisdiction.
4. The applicant preferred an appeal dated 28/02/2006 against the aforesaid order of penalty.
5. Simultaneously, the applicant moved this Hon'ble Tribunal in O.A. 373/2006, and, as at the time, the appeal was not decided, the said O.A. was disposed of with a direction to the 2nd respondent to consider and dispose of the appeal preferred by the applicant in accordance with rules and decision communicated to the applicant. By Annexure A10 Order dated 04/10/2006, the 2nd respondent confirmed the order of penalty and dismissed the appeal.
6. It is against the above penalty and attendant orders that the applicant has moved this O.A. raising for the following grounds of law:
(a) When the Disciplinary Authority was the Administrator upto the stage of notice under Rule 15, it should have been the very same Authority to continue to function as Disciplinary Authority whereas in the instant case the 3rd respondent assumed the position as Disciplinary Authority which is against law.
(b) The earlier Disciplinary Authority cannot function as the Appellate Authority.
(c) Inordinate delay in initiation of the proceedings in 2001 on an alleged incident of 1989 is fatal to very disciplinary proceedings.
(d) Equally fatal is the inordinate delay in conclusion of the disciplinary proceedings.
(e) Bias against the Enquiry Authority has not been properly considered.
(f) Some of the documents which have not been admitted were entertained without following the procedure thereof.
(g) The case is one of no evidence.
(h) In any event the quantum of penalty is disproportionate to the gravity of the alleged misconduct.
7. Respondents have contested the O.A. and their stand as contained in the reply as well as additional reply is as under:
The applicant had, while working as OSD LDCL, given a complaint to Higher Authorities in 1999 that his TA claims pertaining to 1989 were not sanctioned by the Department in time and making inordinate delay in sanctioning the claims. While checking the old claims, it was noticed that the applicant had made several false claims to the Department including the allegations in the Charge Sheet. It was thus necessary to initiate proceedings against the applicant and the Disciplinary Authority after careful examination of the Enquiry Report arrived at the conclusion that the charges proved are quite grave and serious in nature and therefore awarded the penalty of reduction of pay by four stages for a period of 4 years with cumulative effect and with deferment of corresponding increment. The grounds raised by the applicant have all been rebutted by the respondents.
8. The applicant has filed his rejoinder in which he has stated that there is only difference in dates of travel as the sanction ex-post facto obtained by the Department contained different dates. The applicant had enclosed to the rejoinder copies of the TA bills concerned and also Annexure A15 order dated 29/01/1990 wherein ex-post facto sanction for air travel by the applicant was given by the respondent. The applicant has also referred to the allegation that he was making a new allegation after the conclusion of the enquiry regarding tampering of documents. He had filed Annexure A16 (a) and (b) to show that he has raised objections regarding acceptance of tampered documents.
9. Counsel for the applicant took us through various documents to show that there might have been some change in the dates of travel and the sanction accorded by the authorities but the fact remains that such sanction was sought for and accorded only by the administration and the mistakes in the dates have crept therein at that time and without noticing the same, the applicant had preferred the bill on the basis of such sanction accorded. At this distance of time it is difficult to ascertain as to the actual date of travel but travels had certainly taken place and the applicant is not guilty of any misconducts as alleged. As regards note relating to photo-maker machine, the counsel submitted that the power to approve and sanction the amount vested with certain higher authorities and the role of the applicant in the deal was only to make suggestions, which could well have been ignored by the sanctioning authority. It was on a telephonic order that the suggestion was put up and the authority, which sanctioned and approved the amount exceeded his limit by Rs 18,000/-. The applicant cannot be penalized for the mistake committed by the higher authorities. Other legal issues, such as competence to change the D.A. at a particular stage, delay and laches, entertainment of documents when there is no admission, bias against the I.O., disproportionate penalty qua the gravity of the alleged misconduct have all been highlighted by the counsel during the course of arguments.
10. Counsel for the respondents justified the imposition of penalty and submitted that there is no legal lacuna in the decision making process nor is the penalty disproportionate to the gravity of the misconduct proved. As regards delay and laches, the counsel argued that there is no prejudice caused to the applicant as he could attack all the allegations, though unsuccessfully, without expressing any incapacity due to distance of time. Departmental records had also been made available for scrutiny.
11. Arguments were heard and documents perused. The documents show the following facts:-
(a) In Page 13 of the noting portion of relevant records the brief history of the claim of the applicant has been given. As per two TA bills the applicant travelled from Kavaratti to Minicoy by Helicopter but he had stated that the original ticket was missing. It was a fact that the applicant had travelled from Minicoy to Kochi and from Kochi to Kavaratti. The TA claim for the relevant period was Rs.1,366/- which had been sanctioned and paid vide bill No.96/89-90. Investigation to ascertain as to whether the applicant undertook air travel from Kavaratti to Minicoy by Helicopter became necessary. As according to the applicant himself, he travelled from Minicoy to Kochi and Kavaratti on 01/08/1989 and 02/08/1989 by MV Bharat Seema. However the applicant had also stated that he travelled from Minicoy to Kavaratti on 02/08/1989 by Helicopter but the ticket was missing.
(b) On receipt of claim from the applicant for reimbursement of air fare, due to certain difference in the dates as shown in the TA bill and date of journey, the bill was returned to the applicant on 14/3/1991 for re-submission with original tickets.
(c) Vide page 16, it was suggested that it was prima facie clear that the applicant had travelled on 7/7/1989 to Minicoy by Helicopter which has already been settled but he reached Kavaratti from the above tour on 02/08/1989 at 8.30 am by MV Bharat Seema, ticket no.73986 Minicoy to Kochi and 71188 Kochi to Kavaratti. The Department forwarded the request for regularisation of air travel on 02/01/1990. It requested the Ministry to allow the applicant's air fare and Ministry in turn conveyed the ex-post facto approval.
(d) At page 19 to 21 yet another note was found written stating that after getting TA claim for actual journey by ship sanctioned, the applicant approached Ministry of Home Affairs for approval of air journey by hiding real facts and after Ministry's approval, he submitted request for reimbursement stating that the journey ticket was lost vide his letter dated 03/08/1990.
(e) It was on the above back ground that it was decided to initiate action against the applicant for putting forth the false claims. The Administrator agreed with the proposal and directed to process the case further.
(f) From the enquiry file it is seen that the Enquiry Officer had systematically proceeded with the enquiry. Daily order sheets dated 16/06/2001, 19/06/2001, 27/06/2001, 09/07/2001, 18/07/2001, 26/07/2001, 31/07/2001, 12/10/2001, 23/10/2001, 27/10/2001 have all been scanned through. Letter dated 27/11/2001 from the Enquiry Authority addressed to the Administrator has also been gone through which is in response to an allegation from the applicant that the Enquiry Authority acted as a Prosecutor. It is upon consideration of the same that the Administrator rejected the request of the applicant for change of Inquiry Officer, on the basis of bias, in conducting enquiry. The findings have been recorded by the Enquiry Officer as per the Enquiry Report.
12. All the above aspects and the contention of Counsel for the applicant have been duly considered.
13. There is no legal flaw in the change in the Disciplinary Authority. For, when the work in administration expands, the same calls for review of various functional responsibilities and re-assignment of the functions to various authorities and from that point of view, relieving the Administrator from the burden of acting as disciplinary authority in respect of group C and D employees appears to be only appropriate and while doing so, it cannot be held that in so far as the disciplinary proceedings which have reached a particular stage, the Administrator would continue to function as Disciplinary authority. The counsel strenuously argued that the term, "the disciplinary authority" appearing in rule 15 is specific that it should be the very same authority that should proceed further and there cannot be a change to the disciplinary authority at the time of dealing with the inquiry report. This argument, though novel, cannot be acceptable, for, all through the rules, reference to the Disciplinary authority does contain the article 'the' and as such, a special meaning for the term with reference to rule 15 as contended by the counsel cannot be afforded.
14. As regards delay, there does not appear to be any prejudice caused as he is aware of the entire episode. In fact, in the preliminary inquiry held in June 2001, the applicant sought for copies of certain documents and the P.O. had been directed to make available the same. On 27th June 2001 and 9th July 2001, certain documents were made available to the applicant/his defence assistant. On 31st July 2001, the charged officer and the Defence assistant were given opportunity to verify the documents given by the department and permitted to note down relevant details for the defence. All these would go to show that no prejudice had been caused on account of delay in initiating the proceedings. It has been held in the case of Addl. Supdt. of Police v. T. Natarajan,1999 SCC (LandS) 646 ,"it is settled law that mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer." This judgment has been referred to in the Apex Court judgment in the case of P.D. Aggarwal vs State Bank of India (2006) 8 SCC 776. As such, the contention of the applicant that there has been inordinate delay, which vitiates the proceedings, is not acceptable.
15. As regards quantum of penalty, where bogus claims are raised, major penalties including removal or dismissal from service are inflicted whereas in the instant case there have been only reduction of pay by four stages from 08/03/2000 to 07/07/2000 for a period of 4 years with cumulative effect.
16. As regards legal infirmities, it is seen from the records and the pleadings that there is no legal lacuna in the decision making process. Principles of natural justice have been thoroughly complied with at every stage.
17. In view of the above, we do not find any legal infirmity in the orders passed by the respondents in imposing the penalty. As such the O.A. be devoid of merits, merits only dismissal which we accordingly order.
18. Under the above circumstances there shall be no order as to cost.