Amar Nath VermA. Vs. the Union of India and ors. - Court Judgment

Excerpt:
[d. k. jain ; h. l. dattu, jj.] - hindu marriage act, 1955 - section 13b - divorce by mutual consent -- subsequently, in 2001, the parties filed a petition under section 13b of the act before the district court, gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. (b) whether the court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 13b. divorce by mutual consent. 6) admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. on the question of whether one of the parties may withdraw the consent at any time before the actual decree of.....1. this application filed under article 226 of the constitution of india is directed against the judgment and order dated 14.10.2009 passed in o.a.no.174 of 2003 by the central administrative tribunal, patna bench, and patna dismissing the application preferred by the petitioner and affirming the orders passed by disciplinary authority dated 19.10.2001 and the appellate authority dated 25.10.2002 as contained in annexures- 10 and 15 respectively imposing penalty of withholding of three successive increments operative from 1.12.2001 till 1.12.2004 to be restored cumulatively on 1.12.2004 but without arrears. shorn of unnecessary details, the facts of the case in brief are that the petitioner was appointed as an inspector of central excise and was posted at calcutta in the year l978. he was.....

Judgment:
1. This application filed under Article 226 of the Constitution of India is directed against the judgment and order dated 14.10.2009 passed in O.A.No.174 of 2003 by the Central Administrative Tribunal, Patna Bench, and Patna dismissing the application preferred by the petitioner and affirming the orders passed by Disciplinary Authority dated 19.10.2001 and the Appellate authority dated 25.10.2002 as contained in Annexures- 10 and 15 respectively imposing penalty of withholding of three successive increments operative from 1.12.2001 till 1.12.2004 to be restored cumulatively on 1.12.2004 but without arrears. Shorn of unnecessary details, the facts of the case in brief are that the petitioner was appointed as an Inspector of Central Excise and was posted at Calcutta in the year l978. He was transferred to the Patna Commissionerate of the Department of Central Excise in the year 1981 and was promoted to the post of Superintendent, Central Excise on the recommendations of the regularly constituted Departmental Promotion Committee chaired by the Chief Commissioner, in the year 1996. The genesis of the proceedings finds its roots to a letter dated 9.9.1998 of the petitioner addressed to the President and General Secretary of the Association of Gazetted Executive Officers of Customs and Central Excise, Patna/Jamshedpur with copies endorsed to the Commissioner of Central Excise, Patna/Jamshedpur and the Commissioner of Customs, Patna. The petitioner in the said letter had shown discontent in the manner of functioning of the Association and had made a prayer for disassociating him from the membership of the Association. As a copy of the letter was also endorsed to the Commissioner, Central Excise, Patna, the petitioner received a letter dated 15.9.1998 of the Additional Commissioner, (P and V), Central Excise, Patna issued under the directions of the Commissioner, seeking proof and evidence from the petitioner in support of the allegations made in his letter dated 9.9.1998 within a period of three days of its receipt, failing which necessary proceedings would be initiated against him. The letter dated 15.9.1998 as contained in Annexure-2 was responded by the petitioner vide letter dated 15.10.1998 (Annexure-4) mentioning therein that he had nothing further to submit in addition to the financial irregularities pointed out in his letter dated 9.9.1998. As apprehended by the petitioner, the Director General, Vigilance, sought a report from the Commissioner, Central Excise, and Patna as to whether permission had been sought for rising of funds from public for the Souvenir published, in view of the prohibition contained in Rule 12 of the CCS Conduct Rules, 1964, (hereinafter referred to as the Conduct Rules). The office of the D.G.Vigilance, by letter dated 13.6.2000 (Annexure-5) addressed to the Commissioner, Excise, Patna, sought the names of the officers of the Association involved in raising of the funds, for making of a reference to the Central Vigilance Commissioner. On the other hand, a memorandum was issued to the petitioner on 2.7.2001 by the Commissioner of Central Excise proposing to take action against him under Rule 16 of the C.C.S (CCA) Rules, 1965 (hereinafter referred to as the Disciplinary Rules) on the imputations of misconduct/mis- behaviour set out therein. The memorandum as contained in Annexure-6 charges the petitioner of using filthy, indecent and intemperate language in the correspondences made with the Senior Officers and for endorsing such copies to the Senior Officers without permission, amounting to insubordination in view of the Government of India decision no.25 provided under Rule 3 of the Conduct Rules.

2. A plain reading of the memorandum demonstrates that for the reason that the petitioner had drawn the attention of the office bearers of the Association, towards the irregularities prevalent in the Association and which fears of the petitioner stood vindicated by the letter of the Director General, Vigilance as contained in Annexure-5, the petitioner was put to charge. The petitioner, on his part, in response to the memorandum sought opportunity for inspecting the records which formed the basis of the memorandum and mentioned in his letter placed at Annexure-7 which was denied to him under letter dated 17.8.2001 of the Commissioner placed at Annexure-8, inter alia, on grounds that they were not relevant to his case. The proceedings so conducted, culminated in an order dated 19.10.2001 passed by the Commissioner of Central Excise imposing the penalty in question and placed at Annexure-10. The appeal preferred by the petitioner was rejected by the Under Secretary, Government of India vide order dated 25.10.2002 (Annexure-15), thus affirming the order of penalty. The challenge to the orders were also negated by the Central Administrative Tribunal, Patna Bench, Patna under the judgment and order impugned dated 14.10.2009 (Annexure-16) passed in O.A.No.174 of 2003 giving rise to the present case.

3. Mr. Sanjeev Ranjan, learned counsel appearing on behalf of the petitioner, raised very short submissions in support of the issue raised. He submits that the Commissioner of Central Excise not being the appointing authority in terms of the provisions of Superintendent of Central Excise Recruitment Rules, l986 published on 17.12.1986 (Annexure-17) which classify the Principal Collector, i.e. the Principal Commissioner as the appointing authority, the order passed by the Commissioner Central Excise being an authority subordinate to the appointing authority, stands vitiated and cannot be upheld. He further submits that the proceedings having been conducted in utter violation of the principles of natural justice, inasmuch as the documents which were said to be the basis of the imputations never having been supplied to the petitioner, the order of penalty passed in such proceedings cannot be sustained and is fit to be set aside. He further submits that the charges set out against the petitioner do not fall within the meaning of misconduct for inviting any proceedings under the disciplinary rules.

4. It is submitted that the memorandum nowhere imputes the petitioner of violating any service rules in official discharge of duties by the petitioner. He submits that the charge itself is vague inasmuch as no specific instances have been spelt out in the imputation as to the indecent, filthy or intemperate language used by the petitioner against his superiors. He submits that the proceedings finds its roots in the letter dated 9.9.1998 of the petitioner raising his voice against the irregularities prevalent in the Association and which has caused displeasure to the superiors resulting in the impugned proceedings. He submits that the fear expressed by the petitioner was not ill founded rather stood vindicated in view of the inquiry set up by the Director General, Vigilance. It is also submitted that the authorities being enraged by these developments, have made him an escape-goat and that he was being punished for becoming a whistle blower. It is submitted that the entire proceedings being beyond the scope of Rule 3 of the Conduct Rules and the alleged acts not coming within the confines of misconduct, the proceedings are without the authority of law and the order passed by the Disciplinary Authority is perverse.

5. Learned counsel, concluding his arguments, submits that the order of penalty as confirmed by the appellate authority as also the order passed by the Tribunal affirming the orders passed in the Disciplinary Proceedings, cannot be sustained and are fit to be set aside. It is stated that though upon expiry of three years, the increments have since been restored to the petitioner but his service career stands tainted by the reason of the order of penalty as also the petitioner has suffered a loss of increments for the three years and the arrears between the period 1.12.2001 and 1.12.2004, have not been paid to him.

6. Mr. Gopesh Kumar, learned counsel appearing on behalf of the Union of India, supports the impugned orders and submits that the petitioner having been found guilty of insubordination and of using intemperate language against his superiors was punished for his acts and which fell well within the provisions of Section 3 of the Conduct Rules, clothing the department to initiate disciplinary action against the petitioner under the Disciplinary Rules 1965.

7. We have heard learned counsel appearing on behalf of the parties and have gone through the materials placed on the records of the proceedings.

8. Upon perusal of various correspondences of the petitioner, made with his superior officers placed in the counter affidavit which are said to be the basis of the departmental proceedings, we are of the opinion that the issue has been blown out of proportion. The letter dated 9.9.1998 as contained in Annexure-1 was not even addressed to the authorities of the Central Excise rather it was addressed to the office bearers of the Association and was only endorsed to the Commissioner of Excise and Customs, Patna by way of information. The petitioner, in fact, had expressed his displeasure as to the manner of functioning of the Association through the letter in question which was addressed to the President and Secretary of the Association. No complaint was made to the Commissioner in the said letter rather the petitioner while expressing his displeasure, had simply prayed to the Office bearers of the Association to disassociate him from the membership of the Association. In the aforesaid view of the matter, the letter dated 15.9.1998 of the Additional Commissioner, Central Excise, as contained in Annexure-2, directing the petitioner to submit proof and evidence of his statement made in his letter dated 9.9.1998, failing which he would be faced with the disciplinary action, was wholly unwarranted and prima facie demonstrates excessive sensitivity on the part of the Commissioner. The petitioner, having responded to the said letter of the Commissioner by his letter 15.10.1998, as contained in Annexure-7, the matter ought to have been closed by the department, but they did not chose to do so rather issued a memorandum of charges to the petitioner, which, as already indicated, finally culminated in the orders impugned in this application.

9. The fear expressed by the petitioner was not ill founded rather stood fully justified as is manifest from the letter of the Director General, Vigilance dated 13.6.2000, as contained in Annexure-5 seeking the names of the officers who were the members of the Association and involved in the publication of the Souvenir, for which donations had been sought from general public, which was in clear violation of Rule 12 of the Conduct Rules. The memorandum contained in Annexure-6 does not specify the indecent or intemperate language used by the petitioner.

10. We find that the Disciplinary Authority has very candidly accepted in para-5(ii) of the order of penalty dated 19.10.2001 (Annexure-10) that the origin of the proceedings is the communication dated 9.9.1998 put in motion by Mr. Verma, i.e. the petitioner. The said communication which was neither addressed to the Commissioner of Central Excise, Patna nor to the Commissioner of Custom, Patna rather was addressed to the office bearers of the Association with copies endorsed to the Commissioners for information, relatable to the affairs of an Association in the capacity of its member, could not have been made a basis for initiation of any departmental proceedings unless it either breached the service conduct rules or was subversive of discipline or moral turpitude. The very foundation of the present proceedings is on a communication of the petitioner which can neither be said to be issued in discharge of official duties nor its recitals demonstrates showing insubordination to the superiors or of being an act of indiscipline, harbouring on misconduct, or moral turpitude inviting any proceedings under the Disciplinary Rues, 1965. Reference in this regard is made to the following paragraphs of judgment of the Supreme Court rendered in the case of State of Punjab and others V. Ram Singh Ex. Constable reported in AIR 1992 Supreme Court 2188:

"4. Misconduct has been defined in Blacks Law dictionary, Sixth Edition at page 999 thus:

11. A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.

12. Misconduct in office has been defined as:

"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.

13. In P. Ramanatha Aiyars the Law Lexicon, Reprint Edition 1987 at p.821, misconduct defines thus:

"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."

5. Thus it could be seen that the word misconduct though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. ."

14. We are thus of the opinion that the department including the Disciplinary Authority have shown utter sensitivity in the whole matter. The recitals of the letter dated 9.9.1998 did not warrant initiation of any proceedings as it was in the nature of a private correspondence between the office bearers of the Association and its member and no official role could be attached to the same. Further the letter also does not show usage of any filthy, indecent or intemperate language by the petitioner against his superiors. The entry of the superior authorities of the department in the matter have only complicated the issue and has given birth to an otherwise unwarranted proceedings. The genesis of the proceedings itself is beyond the scope of Rule 3 of the Conduct Rules.

15. Having held as such we feel no need to dwell upon or express our opinion on the other issues raised by the petitioner. In the circumstances, we have no other option but to quash and set aside the judgment and order dated 14.10.2009 passed in O.A.No.174 of 2003 of the Central Administrative Tribunal, Patna Bench, Patna together with the order of penalty dated 19.10.2001, as contained in Annexure-10, and the appellate order dated 25.10.2002, as contained in Annexure-15 and we hereby do so. In the result, the writ petition stands allowed but without any orders as to cost. The petitioner would be entitled to all the increments to which he was entitled but denied under the impugned orders together with the arrears which should be paid to him within a period of three months from the date of receipt/production of a copy of this order.