| SooperKanoon Citation | sooperkanoon.com/54080 |
| Court | Central Administrative Tribunal CAT Kolkata |
| Decided On | Jan-11-2001 |
| Judge | R R Vice, S A B.P. |
| Appellant | D.R. Jagiya |
| Respondent | Union of India (Uoi) and ors. |
2. The fact of the case in brief is that the chargesheet dated 26.3.1998 (Annexure-A/5) under Rule 14 of the CCS (CCA) Rules, 1965 was issued against the applicant by Dy. Director (Admn.) the respondent No.3. To enquire into the charges Inquiry Officer was appointed vide order dated 15.6.98 (Annexure-A/3) by the Director, the respondent No. 2. By another order dated 15.6.98 (Annexure-A/4) the respondent No. 2 appointed Presenting Officer. The Enquiry Officer vide notice dated 11.9.98 (Annexure-A/2) fixed the first date of hearing on 9.10.98. The applicant represented against the appointment of Inquiry Officer and Presenting Officer by respondent No. 2 vide his representation dated 22.9.98 (Annexure-A/1). The applicant challenged the authority of the respondent No. 2 to appoint I.O & P.O. as respondent No. 2 is not the Disciplinary Authority but is the appellate authority. Therefore, the applicant submitted that the said orders are illegal and against the Rules and any action taken in reference to them about the chargesheet would be illegal and unauthorised and hence the chargesheet, being defective, illegal and baseless should be dropped any enquiry should be stayed. Being aggrieved with the inaction of the respondent authorities the applicant filed this O.A. & prayed for relief referred to above.
3. The applicant also filed M.A. No, 206/1999 in reference to this O.A.for staying further proceedings initiated against him. The Tribunal disposed of the M.A. by passing order dated 23.7.99 vide Annexure-MA/VIII in M.A. No. 569/2000 as under : " We give liberty to the respondent authorities to proceed with the disciplinary proceeding in the meantime but they are directed not to pass any final order in the aforesaid disciplinary proceeding without obtaining leave from this Tribunal.
We are given to understand by the applicant that he will cooperate in the aforesaid disciplinary proceeding pending against him." 4. The respondent authorities filed another M.A. No. 569/2000 for obtaining leave from the Tribunal to pass final order in the disciplinary proceeding in reference to order dated 23.7.99 as entire proceeding has been completed and the same is ready for passing final order. The respondent/applicant has filed reply to the M.A. It was decided that both the O. A. and this M.A. 569/2000 should be heard together and accordingly they have been heard together for necessary action.
5. The applicant pleaded his case personally and Id. Counsel Ms. K.Banerjee represented the respondents. We have gone through the original application, M.A., reply to the application & M.A., supplementary affidavit regarding postponment of annual increment of the applicant.
The respondent authorities have also produced the original records & files relating to disciplinary proceedings. We have gone through them as well.
6. The applicant presented his case personally in both O.A. & M.A. He reiterated the fact and submitted in the O.A. that the Disciplinary Authority issued the chargesheet on baseless ground to harm the applicant. He could have taken action himself to appoint the I.O. & P.O, within his judicial power but instead the orders to appoint I.O. & P.O. were issued by the appellate authority without any authority with ulterior motive and in capricious manner. This action of the appellate authority is illegal as he exercised the power of Disciplinary Authority without any reasonable ground and authority. Thus the prescribed procedure for issue of chargesheet has not been followed.
6.1. The applicant further submitted that the Director (respondent No.2) has violated the instructions and statutory rules by issuing orders for appointment of I.O. & P.O. and thus illegally interfered in the exercise of quasi-judicial power of the Disciplinary Authority (Respondent No. 3). The principles of natural justice have thus been violated. The appellate authority has misused his power. The allegations made in the charge sheet do not merit R-14 chargesheet.
6.2. Similar arguments have been put forth in the rejoinder to the O.A.by the applicant.
6.3. In view of the above entire disciplinary proceedings is baseless, illegal, objective and wrong and has been initiated arbitrarily and vindictively and, therefore, the same should be set aside by granting the reliefs prayed for.
7. The respondent applicant also presented his case personally in M.A.No. 569/2000 by contesting the M.A. filed by the applicant/respondent.
He submitted that the chargesheet has been issued against him by an officer viz. respondent No. 3 lower than the Appointing Authority viz.
respondent No. 2 as he was initially appointed by the respondent No. 2 as Junior Stenographer which is clear from the copy of offer of appointment dated 18.7.1967 enclosed as Annexure-A/4 to M.A. Therefore, issue of chargesheet by the subordinate authority viz. Deputy Director (Admn.), respondent No. 3 than the Appointing Authority (Viz. Director, respondent No. 2) is illegal and unlawful.
7.1. The applicant submitted that the respondent No. 3 viz. Dy.
Director (Admn.) is the Disciplinary Authority according to petitioners/respondents. The appointment of I.O. & P.O. by respondent No. 2 viz. Director was therefore illegal and unlawful. In either case the disciplinary proceedings are vitiated and unfair and against the law.
7.2. The applicant further submitted that the applicant Dy. Director (Admn.) is subordinate to the Appointing Authority viz. Director, the respondent No. 2 of the O.A. and, therefore, cannot be a Disciplinary Authority as per Rule 2(e) of CCS (CCA) Rules, 1965 as he cannot decide and impose major penalty being subordinate in position to the Appointing Authority of the respondent/petitioner.
7.3. The respondent applicant further submitted that the schedule annexed by the petitioners/respondents as MA-IV has been issued on 12.9.1973 i.e. much after the appointment of the respondents/petitioner and, therefore, should not be applicable. The respondents/petitioners cited the case of Mookherjee v. SBI of AIR 1983 SC 324 (para 14-15) in support of his submission.
7.4. The respondents/petitioners further challenged the appointment of I.O. & P.O. as well as entire disciplinary proceedings conducted by such I.O./P.O. The respondents/ petitioners on the basis of the above submitted that entire disciplinary proceedings being illegal and against the rules is vitiated and requires to be cancelled.
8. Ms. K. Banerjee, the Id. Counsel for the respondents reiterated part of the facts supported by records and specifically admitted and denied the others.
8.1. The Id. Counsel for the respondents made preliminary objections about the maintainability of the application. She submitted that the applicant approached the Tribunal to set aside the chargesheet dated 26.3.1998 in the midst of disciplinary proceedings whereas he should have approached only on the outcome of the same on the grounds of procedural lapse. As such the subject matter of the O.A. is not within the jurisdiction of the Tribunal as would be clear from various decisions of Hon'ble Tribunal cited in para 3.1. (a)(b)(c) & (d) of the reply to the O.A.8.2. The Id. Counsel further submitted that the applicant made baseless & false allegations against respondent No. 2 in particular. The language used is in bad taste and indicative of the attitude of the applicant.
8.3. She submitted that, chargesheet is based on documentary proof and witnesses. Complaints were made against the applicant. They were enquired into in detail and found to be correct. The applicant was directed to apply for regularisation of his absence, but he refused to apply. The respondent No. 3 was, therefore, compelled to proceed against the applicant under Rule 14 of the CCS (CCA) Rules, 1965.
8.4. After receipt of the chargesheet the applicant remained silent and did not say anything in his defence. The respondent No. 3 was under obligation to order for enquiry as per provisions of rules incorporated in the chargesheet dated 26.3.98. Accordingly enquiry was ordered and I.O. & P.O. were appointed. The I.O. (the respondent No. 4) vide order dated 11.9.98 issued notice to the applicant to appear before him for conducting enquiry. The applicant vide his application dated 22.9.98 challenged the appointment of I.O., which appears to be a device not to avail the opportunity and stall the disciplinary proceeding.
8.5. The Id. Counsel submitted that orders appointing the I.O & P.O.are absolutely in accordance with rules on the subject. She submitted that respondent No. 3 as disciplinary authorities chose to appoint respondent No. 4 as I.O. Since the respondent No. 4 was of equivalent status to the respondent No. 3, the respondent No. 3 could not issue order appointing the respondent No. 4 as I.O. Therefore, the respondent No. 3 proposed the name of I.O to the respondent No. 2 under whom the respondent No. 4 was working and the respondent No. 2 issued the order accordingly. She further submitted that any order signed by an authority superior to Disciplinary Authority cannot be termed as wrong or illegal. For similar reasons the appointment of P.O. by the respondent No. 2 cannot be faulted.
8.6. The Id. Counsel again submitted that the chargesheet issued is completely within the frame of rules. The applicant has not submitted as to how the chargesheet is not based on rules. He has also failed to substantiate his allegations that the I.O. is biased. The Id. Counsel further submitted that the Inquiry Officers were appointed in other charge-sheets issued against the applicant, where also the applicant alleged bias against them. He is thus in habit of accusing all the officers including the respondent No. 2 who is very senior officer and is the Head of the Deptt. and who does not have any direct interaction with the applicant.
8.7. In view of the above submissions the Id. Counsel reiterated that disciplinary proceedings against the applicant has been initiated according to strict provisions of the rules and there is no justification for interim order. "The respondent No. 4 being the I.O.will conduct the enquiry in accordance with the rules and the respondent No. 3 being he Disciplinary Authority and respondent No. 2 being the appellate authority will take action in accordance with the rules in this regard". The respondent No. 4 has already issued notice to the applicant vide Annexure-R/1 to attend the hearing for completing the process of enquiry which the applicant should attend to avail the opportunity to defend himself.
8.8. In view of the above the Id. Counsel submitted that present application is void of merit and, therefore, should be dismissed.
9. The applicants in their M.A. 569/2000 have prayed for vacating the interim order passed on 23.7.99 in M.A. 206/99 in reference to O.A.1243/1998. The Id. Counsel for applicants/respondents has submitted that the prayer of the Respondent/applicant in O.A. No. 1243/1998 to set aside the chargesheet dated 26.3.1998 is against various judgments of Hon'ble Tribunal, in which Tribunal has held that they cannot interfere at the framing of charges and at the stage of enquiry in disciplinary proceeding. He cited the following decisions:-Ashok Kumar Sinha v. Union of India & Ors. (Patna Bench) RP No. 30 of 1995 in O.A. No. 120 of 1995 date of judgment 14.12.1995=1996(1) Swamy's CL Digest 322.
(iii) K.D. Tripathi v. Union of India and Ors. (Principal Bench) O.A. No. 565/ 1995 date of judgment 19.1.96=1996(1) Swamy's CL Digest 203.Gyan Prakash Sinha v. Union of India and Ors. (Allahabad Bench) O.A. No. 205/1992dateofjudgment24.1.95=1996(1) Swamy's CL Digest 121 = 1996(2) SLJ 232 (CAT-A11).
9.1. The Id. Counsel has reiterated that chargesheet is firmly based on documentary proof & witnesses. The respondent/applicant is in the habit of making baseless charges and filing baseless cases. He has so far filed 21 cases before Hon'ble Tribunal & Hon'ble High Court.
9.2. The Id. Counsel has further submitted that Dy. Director (Admn.) is the competent Disciplinary Authority in the case in accordance to schedule (Annexure-MA. Ill) to the Rule (2)(b) of the CCS (CCA) Rules, 1965 and MA-IV & V. The applicant was appointed as Technical Asstt.
under this authority as is clear from Annexure-MA-VI. The Deputy Director (Admn.) is thus the Disciplinary Authority and, therefore, Disciplinary proceedings initiated by him is in order & valid.
9.3. The Id. Counsel further submitted that the applicant was every time directed to participate in the enquiry. Sometimes he participated, sometimes he did not & sometimes he refused to participate. He was given full opportunity to participate in enquiry & defend himself but he availed or did not avail according to his sweet will. But enquiry proceeded and has been completed by the I.O.9.4. The enquiry report of P.O. was sent to the Respondent/applicant on 16.7.1999 (Annexure-M. A. VII) for making any representation. In the meantime the respondents filed M. A. No. 206/1999 in which interim order dated 23.7.99 (Annexure-MA. VIII) was passed as under : "2. It appears that the disciplinary proceeding is the subject matter of challenge in the O.A. filed by the applicant which has already been admitted for hearing. Under such circumstances, the legality of the disciplinary proceeding is to be considered during the final hearing of the O.A. 3. We give liberty to the respondent authorities to proceed with the disciplinary proceeding in the meantime but they are directed not to pass any final order in the aforesaid disciplinary proceeding without obtaining leave from this Tribunal.
4. We are given to understand by the applicant that he will cooperate in the aforesaid disciplinary proceeding pending against him." The respondent/applicant submitted representation dated 27.7.99 (Annexure-M.A. IX) against the enquiry report.
9.5. The Id. Counsel submitted that disciplinary proceedings has thus reached the stage of finality and Disciplinary Authority is not in a position to pass final order due to interim order (Annexure-MA. VIII) unless Hon'ble Tribunal gives leave to pass the same. Hence Id. Counsel prays for vacating interim order dated 23.7.99 in M.A. No. 206/99 (Annexure-MA. VIII) and allow the Disciplinary Authority to pass final orders.
10. The official respondents have produced before us three files V.3 File No. C-13019/ 9/94 Vig regarding miscellaneous complaints, File No.C-13019/9/94 Vig (Part. I) and folder consisting of deposition of witnesses, written statement of C.O. P.O. etc. We have gone through the above three files/folder. Our observations in respect of them are as under:- 10.1. The folder consisting of depositions, written statement consist of these papers bearing signature etc. of all concerned.
10.2. File No. C-13019/9/94-vig. deals with the case of the applicant of the O.A. from the stage complaint against him to the stage of delivery of communication dated 19.8.98 to the applicant. This file deals with approval and issue of chargesheet and appointment of I.O. & P.O. We observed as under in the file.
(i) On page 7 of notes portion a brief note has been put up by office to the Superintendent and Dy. Director (Admn.) on 17.3.98 with a draft chargesheet for approval. It has also been stated that Dy, Director (Admn.) is appointing as well as appropriate Disciplinary authority for Technical Asstt. which the applicant is.
The Dy. Director signs and marks the file to Director making remarks dated 20.3.98 as "May kindly see before issue." Director signs on 23.3.98.
(ii) On page 9 & 11 of notes portion a note is put up to Dy.
Director (Admn.)/ Director on 4.6.98 proposing the names of I.O. & P.O. for orders. Dy. Director (Admn.) and Director approve the same on 4.6.98 & on 5.6.98 respectively. The Director under his signature issues the orders appointing P.O. & I.O., the office copy of which are available at pages 150 & 151 of the file. No reasons for putting up the proposal to Director or requesting him to issue the order under his signature has been recorded by anybody including the respondent No. 3.
10.3. File No. C-13019/9/94-Vig. (Part-I) deals with the enquiry report and readiness of the file for issuing final orders and we observed therein as under : (i) From page 14 of the file it is clear that the I.O. submitted his enquiry report on 15.7.99 to the Director referring to his appointment as I.O. by the Director.
(ii) The Deputy Director (Admn.) on page 5 of notes portion passed final order dated 31.08.2000 as "It is, therefore, ordered that a major penalty xx xx xx under Rule 11 xx of CCS (CCA) Rules, 1965 shall be imposed on Shri Jagiya, TA S&DD Calcutta Regional Centre with immediate effect. Final order in this regard, however, shall be issued after obtaining leave from the Hon'ble CAT Calcutta Bench as ordered by them in their order dated 23.7.99 in M.A. No. 206/1999 arising out of O. A. No. 1243/98" (Blank portion left by us so that final order is not made known to parties). The order of the CAT dated 23.7.99 is that the respondents are directed not to pass any final order in the aforesaid disciplinary proceeding without obtaining leave from this Tribunal.
11. From the above discussions it is clear that the case of the applicant of the O. A. 1243/ 98 and respondent of the M.A. 569/2000 veers round the point as to whether the Dy. Director (Admn.) who issued the chargesheet against the applicant is competent Disciplinary Authority or the Director who appointed I.O. & P.O. under his signature is the competent Disciplinary Authority in the case. We would like to consider the above point.
11.1. We take the point whether Dy. Director (Admn.) is the Competent Disciplinary Authority in the case. We find that the applicant was offered appointment for the post of Junior Stenographer vide Memo dated 18.7.1967 (Annexure-A/4 to reply to the M.A. No. 569/2000) signed by the Director. It is presumed on acceptance of the offer the appointment order would have also been signed by the Director and thus Director becomes the Appointing Authority. This presumption has not been contested & challenged by the official respondents/applicant either in their pleadings or in submissions respectively other in the O.A. or in the M.A. in question. In view of this factual position, it is undoubtful that the Director was the Appointing Authority of the applicant on the post of Junior Stenographer.
11.2. The Id. Counsel for the respondents has submitted that the applicant was promoted and appointed as Technical Assistant by the Dy.
Director (Admn.) vide Annexure-MA. VI. As such the Dy, Director (Admn.) became Appointing Authority. The chargesheet has been issued against the applicant by the Dy. Director (Admn.) who is the competent Disciplinary Authority of the applicant as Technical Asstt. The Dy.
Director (Admn.) is not thus subordinate to that authority who appointed the applicant as Technical Assistant, but is of equivalent status.
11.3. From the above it is clear that the applicant was appointed by Director as Junior Stenographer and by Dy. Director (Admn.) as Technical Asstt. The same individual has been appointed on initial and promoted posts by two authorities. The two authorities are not of equivalent status. The Appointing Authority viz. Director of the initial post of Junior Stenographer is admittedly superior to the Appointing Authority viz. Dy. Director (Admn.) of the promoted post of Technical Asstt. In other words, the Appointing Authority viz. the Dy.
Director (Admn.) of the post of Technical Asstt. is an authority subordinate to the authority by which the applicant was appointed as Junior Stenographer. The individual is one and the same and the appointing authorities are two of different hierarchical status. The major penalty order to be passed by the subordinate authority in respect of holder of the Technical Asstt. post will definitely affect the same individual who was initially appointed as Junior Stenographer and subsequently promoted to the post of Technical Asstt. The effect of the penal order cannot be made applicable to the holder of the post of Technical Asstt. only. It will definitely affect the individual who was initially appointed as holder of Junior Stenographer post and subsequently promoted as Technical Asstt. Therefore, reason, principles of justice as well as the provisions of Article 311(1 )(2) of the Constitution make it imperative and demand that Disciplinary proceedings may be initiated by the subordinate authority but the final penal order regarding removal/dismissal/reduction in rank should be passed by the authority not subordinate to the authority by which the applicant was appointed on any post. The Dy. Director (Admn.) who is the Subordinate authority should have submitted the file for final order to the Director after completion of the proceedings upto that stage, which has not been done.
11.4. In this case the disciplinary proceeding has been initiated by the subordinate authority not on behalf of the competent authority but as a competent authority under misunderstanding of the rules. Here also the higher authority interfered in the proceedings by issuing orders about appointment of IO & PO without any reason and justification. The Disciplinary Authority and the appellate authority both have exercised their authority in the same proceeding as Disciplinary Authority which is irregular and justifiably questionable. We, therefore, find the disciplinary proceedings vitiated.
11.5. The Official respondent to the O.A. has further stated in the M.A. 569/2000 that the Dy. Director (Admn.) is the Appointing Authority and Disciplinary Authority and Director is the Appellate authority of the applicant in the O.A. If this is the factual position, the Id.
Counsel for the official respondent has failed to convince us as to how and in what circumstances the Inquiry Officer & Presenting Officer in the Disciplinary case against the applicant was appointed by the Director by the memo signed by the Director and thus a serious irregularity has crept into the proceedings.
11.6. The plea of the Id. Counsel for the respondent that the powers and authority of the subordinate authority vested in the superior authority and superior authority can exercise the same at will as has been done in this case is totally unreasonable and therefore, unacceptable. Each public servant is vested with specific powers & authority and he is required to exercise the same within the parameters provided in the statutory rules and orders. No authority how high it may be, can exercise the powers and authority of its subordinate on its whim and fancy and on its sweet will. It can in exceptional circumstances exercise the same within the given situations for reasons to the recorded in writing. In the exceptional case when the entire power and authority of the subordinate authority is taken over by the superior authority, the role of subordinate authority in that case will end and the superior authority will step in the shoes of the subordinate authority. In this case there is no mention of the exceptional circumstances either in the pleadings or submissions or official records and, therefore, we find the action of the Director in appointing I.O. &P.O. illegal and against the provisions of the CCS (CCA) Rules, 1965.
11.7. From the official records produced before us we have observed that Dy. Director (Admn.) has already passed final order on the file, which is to be issued to the applicant after obtaining the leave of the Hon'ble Tribunal for which MA No. 569/2000 has been filed and is under consideration before us with the O.A. No. 1243/1998. The Hon'ble Tribunal on 23.7.99 in M.A. No. 206/1999 passed interim order that the respondents "are directed not to pass any order in the aforesaid disciplinary proceeding without obtaining leave from this Tribunal." Against this unambiguous and clear orders the respondent No. 3 of the O.A. and one of the applicants of the MA has already passed the final order on the file on 31.8.2000. This is clear disobedience of the orders dated 23.7.99 of the Tribunal. We would like to know the reasons and circumstances from the respondent No. 3 of the O.A. as to what prompted him to violate the order dated 23.7.99 of this Tribunal and commit the contempt of court. We would like to have his personal explanation in affidavit through his advocate within four weeks of receipt of this order so that we may consider further action in this contempt.
11.8. The applicant vide Anncxure-A/1 dated 22.9.98 to the O.A. drew the attention of the Disciplinary Authority with a copy each to the Director and Secretary of Min. of I&B towards the irregularly appointed I.O. & P.O., but the same was not considered by anyone. If the same would have been considered the illegality and irregularity which were allowed to continue till date, would have been rectified and the applicant would not have been forced to come to Tribunal for the same.
11.9. We would like to interfere in the case not on merit but on non-observance of the provisions of rules and procedures in conducting disciplinary proceedings. We find that the same have not been followed/ignored either deliberately or negligently or for some other extraneous reasons. This being the position the cases cited by the Id.
Counsel of the respondent in the O.A. are not applicable in this case.
12. From whatever has been observed by us in the above paragraphs and especially in para 11 we find that the disciplinary case against the applicant of O.A. No. 1243/98 has been handled improperly and in questionable manner. The appointment of the I.O. & P.O. has been made by the Director under his signature whereas chargesheet has been issued under the signature of the Dy. Director (Admn.). The reasons & circumstances for appointment of I.O. & P.O. by the Director have not been made clear by the respondents. The representation dated 22.9.98 of the applicant has not been considered by any of the respondents. The applicant was appointed as Junior Stenographer by the Director and as Technical Asstt. by the Dy. Director (Admn.). The Director is admittedly superior to Dy, Director (Admn.) but the disciplinary proceedings file for final order of major penalty has been processed by the Dy. Director (Admn.) and he has already passed the order against the provisions of Article 311(1) & (2) of the Constitution. The Dy.
Director (Admn.) has not only violated the provisions of said Articles of Constitution but has also acted against the order dated 23.7.99 in M.A. No. 206/99 passed by this Tribunal. We thus find the entire disciplinary proceedings irregular vitiated and illegal. We, therefore, hereby partially allow the original application No. 1243/98 without going into the merit of the charges and reject the M.A. No. 569/2000 with following directions:- 12.1. That memo of charges be issued by the competent authority afresh if he so desires and disciplinary proceeding should be initiated strictly according to provisions of the CCS (CCA) Rules, 1965, or 12.2. That in case memo of charges issued by the subordinate authority viz. Dy. Director (Admn.) is allowed to stand, further action from the stage of appointing I.O. & P.O. etc. and till the stage of final decision is reached should be taken by him according to the provisions of the CCS (CCA) Rules, 1965. If the Dy. Director (Admn.) finds justification for imposing major penalty of removal, dismissal or reduction in rank, he should submit the entire proceedings to the competent authority viz. the Director for passing final orders, and 12.3. That entire disciplinary proceedings from the stage of appointment I.O. & P.O. is set aside being illegal and against the provisions of rule, and 12.4. That entire proceeding in either alternative should be completed within a period of four months from the date of receipt of this order by holding continuous sitting and resorting to least adjournments, and 12.5. That the applicant of the O.A, will fully cooperate with the disciplinary proceedings and shall not seek adjournments. In case he fails to be present on the schedule time & date, the proceedings will go on ex parte for which the applicant would be personally responsible.
12.6. We further order that respondent No. 3 the Dy. Director (Admn.) will submit his personal explanation in affidavit through advocate within four weeks of receipt of this order about violation of interim order dated 23.7.99 in M.A. No. 206/1999.
12.7. We further notice that the applicant was forced to come to Tribunal in this O.A. because no action was taken by the respondents on his representation dated 22.9.98. We, therefore, order that the applicant be paid Rs. 5000/- as cost by the respondents within two weeks from receipt of this order. The respondents would however be at liberty to recover this amount from the officer responsible for inaction on the representation.