Dear Comrades
Please find Circular 29-2010 and judgement of CAT Ernakulam posted below.
Yours fraternally
(M. S. Raja)
Secretary General
ALL INDIA AUDIT & ACCOUNTS ASSOCIATION
CSV WARRIER BHAWAN
15/1089-90, VASUNDHARA, VASUNDHARA (P.O.), Dt. GHAZIABAD (U.P), PIN-201012
Ph: 0120-2881727/4101593/ 0 – 98681 45667
E-mail: auditflag@gmail.com
Website: www.auditflag.blogspot.com
Reference: AIA/Circular-29/2010
Dated: 3rd November 2010
To
Unit Secretaries,
Members & Spl. Invitees – NE &
Members of Women's Committee
Dear Comrades,
CAT ERNAKULAM DELIVERS JUDGEMENT RE-INSTATING COM MANUEL;
DEPARMENT GOES ON APPEAL TO HC
CHQ had informed all through sms about the Ernakulam CAT, quashing
the chargesheet under Rule 14 of CCS (CCA) Rules, 1964 against Com KA
Manuel, former General Secretary of Audit Category II Association,
Kerala and ordering forthwith re-instatement with back wages. Copy of
the judgement is attached.
The CAT has said what we have been telling all along – that these
departmental courts are akin to trial in kangaroo courts. But what can
be done when the chain itself get mad? The only option before those
suffering under the vicious misuse of administrative power is to
challenge it organisationally while trudging the path of judiciary
with utmost care.
As expected, the department has taken interim stay from the CAT to go
for appeal in the Kerala High Court.
Those who speak of rule of law do not want to make it applicable to
them. They will fight in the higher courts with tax payer's money. If
the Accountants General who caused dismissal through fake trials wants
to challenge it, the department should ask them to spend from their
pockets.
This filing appeals in the higher courts with tax payers' money is
most immoral and illegal and against any audit concept.
150 YEARS OF IA&AD
Many units have reported that the local administration has intimated
them in writing about the functions to be organised on 16th November
2010 to commemorate the completion of 150 years of Indian Audit &
Accounts Department.
The CHQ has not got any formal intimation from the CAG's office on
any of such programmes. The units may decide locally, depending on the
conditions prevailing there, on the participation in such
celebrations.
We are indeed proud of the department and its achievements with in
the limited operational freedom granted.
We are also happy to know that the present CAG has taken up some of
the longstanding demands raised by this Association regarding
expanding the scope of Audit to new areas.
There is no doubt, the Association would be in the forefront in
defending the department. But we would like remind on this occasion
that it is the bounden duty of those who read out rule book/riot act
to the leaders and activists of the Association that 'Caesar's wife
should be above suspicion'. Without compromising on the principled
stand of the Association we would and should co-operate with the
functions to commemorate the 150 years of Indian Audit & Accounts
Department.
A CRITICAL VIEW
The proposed celebration is based on the colonial legacy. The Indian
Audit & Accounts Department's functions are regulated, as on today, by
the DPC Act, 1971 ie as far as the independent India is concerned, a
statute was enacted only 1971. Is it proper to celebrate 150 years?
So far as the attitude of the Gr A is concerned, it is still fully in
the colonial mindset, but for cosmetic talk of the constitution.
Some comrades were proposing that we should ask a special treat for
the employees during the 150th year.
Remember: In 1960, the department completed 100 year – centenary.
Then the Association was de-recognised, the Secretary General was
under suspension, hundreds of leaders and activists of the Association
through out the country were dismissed, suspended and hounded after
the 1960 strike.
In 2010, our comrades stand dismissed, suspended, chargesheeted, no
permission to hold meetings, many of the Accountants General do not
even meet and discuss the problems and chargesheet is given for
holding lunch hour meetings.
Let us not have any illusions – we can achieve through struggles
only, for that let us unite on and all. Every struggle would
definitely bring results, the unity and struggle has to be sustained
and furthered. There is no shortcut to unity and struggles.
With regards
Yours fraternally
(M.S.Raja)
Secretary General
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.157/2010
Wednesday this the 20th day of October, 2010
CORAM:
HON'BLE MR.JUSTICE K.THANKAPPAN, JUDICIAL MEMER
HON'BLE MR.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Manuel K.A ,TC 27/2049,
CRRA 16, Chirakulam Road,
Thiruvananthapuram-695 001
(Under orders of dismissal from the post of Section Officer, Office of
the Principal
Accountant General(Audit), Audit Bhavan, Kerala, Thiruvananthapuram.
..Applicant
By Advocate:Mr.M.K.Damodaran,Sr.
Mr.P.K.Vijayamohan
vs.
1. The Union of India, represented by
The Secretary to Government,
Ministry of Finance, New Delhi.
2. The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Marg, New Delhi.
3. The Deputy Comptroller & Auditor General of India,
(Appellate Authority),10, Bahadur Shah Zafar Marg,
New Delhi.
4. The Principal Accountant General(Audit),
Kerala, Thiruvananthapuram.
By Advocate: Mr. Sunil Jacob Jose, SCGSC(R1)
Mr.O.V.Radhakrishnan, Sr. with
Mr.V.V.Asokan(R2-4)
The Application having been heard on 24.09.2010, the Tribunal on
20.10.2010 delivered the following:-
ORDER
HON'BLE MR.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER:
Aggrieved by the dismissal order dated 5th March,2009 and the
Appellate Order dated 24.11.2009 the applicant has filed this Original
Application praying that the above orders may be quashed and the
applicant may be reinstated in service with all the Consequential
benefits.
2. The backdrop of the case is as follows. While the applicant was
working as Section Officer, redesignated as Assistant Audit Officer,
he was served with a memo dated 21.03.2007 directing the applicant to
file his explanation within seven days of the receipt of the Memo why
he has physically manhandled Sri VK Praveen, a Group D staff of A&E
Office on 30.11.2006 at 6.15 P.M. For the above memo, the applicant
had filed his representation on 27th March,2007. Subsequently
another memo dated 16.4.2007 has been issued to the applicant alleging
that the applicant committed serious misconduct in violation of the
provisions contained in Rule 3(1)(ii) & (iii) and Rule 7 of the
CCS(Conduct) Rules, 1964 by participating in the agitation in the
office premises from 19th December 2006 to 22nd December,2006 in
connection with the suspension of one S.V.Santhoshkumar,
Sr.Accountant of AG(A&E) Office, Main Office, Thiruvananathapuram. The
applicant also filed his stand, in the reply dated 7.5.2007 on denying
the allegations levelled against him. Subsequent to the above two
memos, a charge memo dated 30.7.2007 has been served on the applicant
proposing an enquiry under Rule 14 of the Central Civil Services
(Classification, Control and Appeal)Rules,1965 along with the
Statement of Imputations/Allegations as Annexure I in which it is
alleged that the applicant while functioning as Section Officer in the
Office of the Principal Accountant General(Audit), Kerala,
Thiruvananthapuram abused, threatened and physically assaulted Shri VK
Praveen, a Group D staff of Office of the Accountant General
(A&E),Kerala on 30th November, 2006 at 6.15 P.M. and thereby indulged
in indiscipline and committed misconduct in a manner unbecoming of a
Government servant thereby violated clause(iii) of sub rule (1) of
Rule 3 of CCS(Conduct) Rules,1964. Four other detailed charges
were also there. The above charge memo contains detailed Statement of
Imputations of misconduct in respect of the Articles of Charges
framed against the applicant. The applicant filed an explanation to
the above Articles of Charges on 29.9.2008 denying all the charges
levelled against him. However, an enquiry has been ordered and on
appointing an Enquiry Officer, an enquiry has been conducted and a
report dated 29.9.2008 has been furnished and on the basis of the
findings entered into by the Enquiry Officer, the Disciplinary
Authority passed a penalty of dismissal from service as per the order
dated 5th March, 2009, dismissing the applicant from service. Against
the said order of dismissal, the applicant filed an appeal before the
Appellate Authority. The Appellate Authority on considering the appeal
confirmed the order passed by the Disciplinary Authority as per the
Appellate Order dated 23rd October, 2009. Aggrieved by the above
orders of punishment and the Appellate Order, the applicant filed
the present Original Application.
3. The Original Application has been admitted by this Tribunal and
notice has been ordered to the respondents. In pursuance of the notice
received from this Tribunal, a reply statement has been filed on 13th
May, 2010, justifying the orders impugned. Further along with the
reply statement, the respondents have filed Annexures R1(a) to R1(d) ,
a copy of the show cause dated 21.2.2002 issued to the applicant, a
copy of the memo dated 24.6.2002, a copy of the memo dated 18.9.2008
and a copy of the memo dated 31.10.2008. The definite stand taken in
the reply statement is that as per the report of the Inquiring
Authority the applicant ad abused, threatened and physically assaulted
Sri V.K.Praveen, a Group D staff of the A&E Office on 30.11.2006 in
connection with the agitational activities undertaken by the
Associations demanding revocation of suspension order issued against
one Santhoshkumar, a Senior Accountant and the charges framed
against the applicant have been proved and on the basis of the
findings entered into in the enquiry report, the penalty order has
been passed. Further it is stated in the reply statement that it is
not mandatory under the provisions of the CCS(CC&A) Rules, 1965 to
hold any preliminary enquiry before initiating disciplinary
proceedings. In spite of that, a preliminary enquiry was also
conducted during May to June,2007 and thereafter the charge memo
dated 30.07.2007 has been issued against the applicant. Further it is
stated in the reply statement that the enquiry has been held strictly
in accordance with the provisions of Rule 14 of the CCS (CC&A) Rules,
1965 and it is not necessary to examine the complainant at the
time of enquiry and if the preliminary enquiry conducted would show
that a prima facie case has been proved, the enquiry can be conducted.
It is further stated in the reply statement that the provisions
of Article 311(2) of the Constitution of India regarding giving
an opportunity to the delinquent officer has been substantially
complied with and the evidence adduced during the enquiry in support
of the charges levelled against the applicant is sufficient to hold
him guilty of the charges. The applicant was furnished with a copy of
the enquiry report and even if any mistake or omission has been
occurred in producing and marking the documents which the authority
wants to rely on, cannot be considered as a ground to reject the
enquiry report, as such enquiry has not been vitiated. Further it is
stated that regarding the non-examination of the complainant has been
never raised by the applicant during the enquiry and the entire
disciplinary proceedings were conducted in compliance with the
provisions of Rules 14 and 15 of the CCS (CC&A) Rules,1965 and there
was no violation of the provisions of these Rules. Further it is
stated in para-30 of the reply statement that there is evidence to
show that the applicant engaged in dharna/Demonstration and in
participating such dharna or Demonstration, the applicant had
committed a misconduct alleged against the applicant.
4. We have heard the learned Sr.Counsel appearing for the applicant
Shri M.K.Damodaran. Shri Sunil Jacob Jose, SCGSC(R1) and Shri
O.V.Radhakrishnan learned Sr.Counsel along with Shri V.V.Asokan for
the respondents 2 to 4.We have also perused the documents produced in
the O.A. Firstly, the counsel submits that the applicant entered in
the service as Lower Division Clerk on 1.5.1987 and was promoted as
Section Officer redesignated as Asstt.Audit Officer on 11.1.2005 and
he has got a total period of more than 22 years of unblemished service
under the Govt. of India. While the applicant was working as Section
Officer , the Govt. of India introduced a modified pension scheme
called One Rank One Pension and for implementation of that scheme
the then Accountant General(A &E), Kerala was planning to entrust the
work of the office to outside agencies. To take a protest against the
proposal to outsource the work of One Rank One Pension, the
Employees Association Service Organizations discussed the matter and
decided to resort a peaceful means of protest and on the basis of
such protest a peaceful agitation was organized and in connection with
that agitation one Santhosh Kumar, a Senior Accountant has been
suspended, which also caused for an agitation and an agitation at the
organizational level and as a matter of fact, the proposal to
outsource the work of One Rank One Pension Scheme has been dropped
and thereafter the Accountant General was keeping animosity against
the applicant as he being one of the members of the Association
of the employees who caused the agitation against the proposal of the
Accountant General. With the said animosity the Accountant General
was keeping towards the applicant and such other employees foisted
certain cases against them and the personal Group D peon of the
Accountant General, Praveen was made a tool to grind the axe against
the applicant and thereby created a complaint as if received from the
said Praveen and issued the memos dated 21.3.2007, a copy of which was
produced and
marked as Annexure A1, a memo dated 16.4.2007 and the charge memo
dated 30.7.2007. To the above memos the applicant had given his
replies. But the respondents proceeded with an
enquiry on the basis of the charge memo dated 30.7.2007. The alleged
enquiry has been conducted without following the procedure
prescribed under Rule 14 of the Central Civil Services
(Classification, Control & Appeal)Rules,1965(hereinafter be referred
to as the CCS(CC&A Rules).Further the learned counsel submits that in
pursuance to the proposal for entrusting the work of modified pension
scheme, namely, One Rank One Pension to the outside agency, has been
objected to by the Employees Associations and Service Organizations
of the Office protesting the proposal to outsource the work as well as
the suspension of one employee, there was a Dharna during the
period from 19th December,2006 to 22nd December,2006 and 26th
December,2006. The suspension ordered was withdrawn and on the protest
shown by the employees Association, the proposal to outsource the
Scheme was also withdrawn which shows that the protest was justifiable
and peaceful and further there was an incident in which the
Accountant General (Audit Accounts & Entitlement),Kerala misbehaving
with the women employees which was given rise to them filing complaint
before the in-house committee and to the Women's Commission and one of
the such women employees become the wife of the applicant, one
Elsamma. Because of all these things, the applicant was victimized by
issuing such memos and finally the charge memo dated 27.4.2007, a copy
of which is produced and marked in the O.A. as Annexure A3.The learned
counsel further submits that the alleged enquiry conducted by the
Inquiring Authority is only a camouflage and the procedure prescribed
under Rule 14 of the CCS(CC&A) Rules has not been followed. There is
no evidence against the applicant to prove the charge against him. No
documents were proved legally and all the documents marked only
through the Enquiry Officer and no witness has been examined to prove
any of the documents relied on by the Inquiring Authority to prove
the charges framed against the applicant and there was no legally
acceptable evidence whereas the Inquiring Authority has simply stated
that the charges have been proved by examining 3 witnesses and these
witnesses are not giving any evidence to prove the charges framed
against the applicant. If so, the evidence now accepted by the
Inquiring Authority to hold that the charge framed against the
applicant has been proved is without following the principles laid
down by the Apex Court reported in 1998(2) SCC 394 in Commissioner and
Secretary to the Govt. and Others vs. C.Shanmugam, 1999(8) SCC 582 in
Hardwari Lal vs. State of U.P.and Others, 2006(5) SCC 88 in M.V.
Bijlani vs. Union of India and Others and in 2009(2) JT 176 in Roop
Singh Negi v. Punjab National Bank & Ors.
5. The next contention of the learned counsel for the applicant is
that the complainant Praveen has not been examined and the original of
the complaint has not been marked, only a copy of the complaint has
been produced before the Inquiring Authority. The alleged complaint
has been filed on 1.12.2006 whereas it has reached the Accountant
General only on 9.3.2007. The delay in taking into account of the
complaint itself is doubtful . The alleged incident was on 30.11.2006.
The complainant Praveen,the author of Annexure A2 complaint has been
never examined and even not cited as a witness in the charge sheet
or the list of witnesses submitted by the authorities for examination.
This would show that the respondents never intended to examine
the complainant Praveen and the source of the complaint itself was not
proved. Even as per the copy of the complaint it is alleged that the
applicant threatened and assaulted the complainant Praveen on
30.11.2006 whereas the complaint has been seen taken into
consideration by the Accountant General only on 9.3.2007. That delay
itself creates a doubt regarding the source of the complaint or the
alleged misconduct of assault committed by the applicant on
30.11.2006.Further the counsel submits that none of the 3 witnesses,
namely PWI to PW3, the Assistant Caretaker and the other two officials
did not say anything about the incident alleged to have been taken
place on 30.11.2006. Even in the evidence of PW3 it is the only case
that the complainant Praveen told him that the applicant assaulted
him on 30.11.2006. With regard to the evidence of other witnesses PWI
only states that he has given only a report to the Accountant General
regarding the incident alleged to have been taken place on 30.11.2006,
but that report is not even produced before the Inquiring Authority.
If so, the very source of the alleged complaint itself is doubtful. A
photocopy of the original has been produced by the Presenting Officer
and marked through him by the Inquiring Authority and marking of
this complaint itself is not in accordance with the provisions of the
Evidence Act pertaining to the marking of a document in a case.
6. The further contention of the learned counsel regarding the
evidence of the witnesses pertaining to the previous statements
alleged to have been recorded during the preliminary enquiry it is
also not recorded in accordance with the provisions of the Evidence
Act as the Inquiring Authority has not marked any of the preliminary
statements as proved through the witness when PW I-3 are examined by
the Inquiring Authority. When PW 1-3 are examined by the Inquiring
Authority, the Presenting Officer simply read the preliminary
statements alleged to have been given by the witnesses and asked the
witnesses whether they have given such statements or not. Though the
witnesses admitted that they have given such statements, that
preliminary statements were not marked or produced as part of the
deposition of any of the witnesses. If so, there is no proper
recording or marking of the preliminary statements alleged to have
been given by the witnesses during the preliminary enquiry or
investigation. Hence, according to the counsel for the applicant,
there is no evidence regarding the incident of 30.11.2006, as stated
in the charge memo or any preliminary statement of the witnesses
has been properly recorded.
7. The next contention of the Sr.Counsel Mr. M.K.Damodaran is that
as per the charge memo, the applicant committed the misconduct of
violation of Rules 3 and 7 of the CCS Conduct Rules by participating
in the agitation/Dharna during 19th December to 22nd December,
2006. Rule 7 of the Conduct Rules only prohibits to engage himself or
participate in any demonstration which is prejudicial to the interests
of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or
morality, or which involves contempt of Court, defamation or
incitement to an offence. Sub rule 2 of Rule 7 prohibits only any form
of strike or coercion or physical duress in connection with any matter
pertaining to his service or the service of any other Government
servant. The reply statement filed by the applicant would clearly
indicate that a peaceful agitation has been called by the employees
association and there was no duress or physical coercion so as to
attract any violation of the above rules. Every trade union is
permitted to have peaceful agitation or Dharna with notice to the
authorities. The learned counsel also relies on judgments of the Apex
Court reported in AIR1960 SC 633, AIR 1962 SC 1166 and AIR 1963 SC
822,to prove this aspect. The evidence now discussed by the Inquiring
Authority would not show that there was any physical duress or attempt
to cause disturbance of public tranquility at the premises of the
Office of the Accountant General because of the call of the agitation
made by the employees association.
8. The next contention of the counsel for the applicant is that the
finding of the Inquiring Authority that the applicant participated in
the Dharna or agitation called by the employees association in
connection with the suspension of one Santhosh Kumar, a Senior
Accountant from 19th to 22nd December,2006, is without any
evidence and it is only on surmises and speculation. The counsel
submits that even the reply statement and the explanation given by the
applicant would show that during the relevant days the applicant was
on outdoor duty and he has not participated in the Dharna, as alleged
in the charge. The conclusion of the Inquiring Authority that the
applicant participated in the Dharna/demonstration held from
19.12.2006 to 22.12.2006 is based on no evidence and the reliance
placed by the Inquiring Authority to come to such a conclusion is on
the ground that PW 2 & 3 were not cross-examined by the applicant
to prove his participation in the Dharna, at the same time there is
records to show that the applicant had submitted his TA bills claiming
ordinary T.A for his journey from Trivandrum to Kannur on 21.12.2006
and the T.A bills were also sanctioned by the authority. The
Inquiring Authority missed the case of the applicant that the
applicant was on transit to the District Police Office, Kannur on
22.12.2006 and he attended duties there. The Inquiry Officer also
missed the fact that as per the defence document B3 the tour diary of
the week ending 23.12.2006 signed by the applicant has been
countersigned by the supervising officer in the audit party and the
Attendance Register D3B would also prove that the applicant was not
present at Trivandrum or participated in the Dharna held on 19th to
22nd December,2006. Hence the finding entered into by the Inquiring
Authority is perverse and not based on any evidence at all.
9. Finally the learned counsel appearing for the applicant contends
that the Appellate Authority while considering the appeal filed by the
applicant has not properly appreciated the grounds urged in the Appeal
Memorandum and the Appellate Order does not contain any reasons for
dismissing the appeal. The applicant has urged more than 22 grounds in
the Appeal Memorandum and none of these grounds considered by the
Appellate Authority. A reading of the Appellate Order does not show
that the Appellate Authority considered the appeal as per Rule
27 of the CCS (CC&A)Rules by applying his mind and given answer
to the grounds urged in the Appeal Memorandum. The appellant has
specifically alleged that Annexure A2 complaint is a false one and
nobody proved the same as the complainant V.K.Praveen himself was not
examined at the time of the enquiry. Even the handwriting of the said
complainant Praveen is entirely different from that of produced in
Annexure A2 complaint. The copy of the complaint produced and marked
as Annexure A2 did not bear the initials of the Disciplinary Authority
or the complainant or even the superior officer who alleged to have
been received the same. Further in the Appeal Memorandum the applicant
had taken a definite contention that to prove the charges 3,4 and
5, no document has been produced and marking of even the documents
produced through the Presenting Officer is not in accordance with the
provisions of the Evidence Act or even the rules and procedure
prescribed under the CCS(CC&A) Rules. Further it is specifically
contended in the Appeal Memorandum that no evidence was produced to
prove the incident alleged to have been taken place on 30.11.2006 at
6.15 p.m. at the premises of the office of the Accountant General. It
is also urged in the Appeal Memorandum that Rule 14 of the CCS (CC&A)
Rules has been violated by the Inquiring Authority while recording the
evidence against the applicant. None of these grounds were discussed
or even given any reason for rejecting the appeal filed by the
applicant on confirming the Penalty Order by the Disciplinary
Authority.
10. Shri O.V.Radhakrishnan, learned Sr.Counsel appearing for the
respondents, has tried to meet the contention of the learning
Sr.Counsel appearing for the applicant, one by one. Learned
Sr.Counsel reiterating the stand taken in the reply statement
submitted that as per the charge memo dated 30.7.07 (Annexure A5) the
entire imputations and allegations levelled against the applicant have
been stated and the main charges namely the participation of the
applicant in the agitation programme held in the main premises of
both the Accountant General(A&E),Kerala and the Principal Accountant
General(Audit) on 19th December to 22nd December, 2006 in connection
with the suspension of one Santhosh Kumar, a Senior Accountant of
Accountant General (A&E) office has been specifically stated. Further
as per the charge memo it is alleged that the applicant while
functioning as Section Officer in the office of the Principal
Accountant General(Audit),Kerala, Trivandrum abused, threatened and
physically assaulted Sri V.K.Praveen, a Group D staff of office of the
Accountant General (A&E) on 30th November,2006 at 6.15 p.m. and
thereby committed the misconduct of violating clause (iii)of sub rule
1 of Rule 3 of CCS Conduct)Rules,1964 and further committed the
violation of Rule 7(1) of the same rules. All the 5 charges framed
against the applicant, according to the learned counsel for the
respondents have been enquired into by the Inquiring Authority and
found that all the 5 charges were proved. If so, the contention of the
learned counsel appearing for the applicant that the charge itself is
a victimization of the applicant is not tenable. The counsel further
submits that with regard to the contention that there is no evidence
to prove the charges levelled against the applicant is not correct as
the Inquiring Authority relied on the oral evidence of PW 1 to 3 and
also the documentary evidence Exhibits A1 to A7. None of the 3
witnesses examined before the Inquiring Authority has been properly
cross- examined to destroy the evidence given by these witnesses or to
cause any doubt regarding the veracity of the evidence given by these
witnesses. PW 1 to 3 had specific cases before the Inquiring authority
that they have given previous statements regarding the incident which
were recorded at the time of preliminary enquiry and further that
statements of the witnesses were read over to them and they have
admitted the fact that they have given such statements at the time of
the preliminary enquiry. These statements of the witnesses could
not have been discredited as these witnesses were not cross-examined
or discredited by effective cross-examination by the applicant. Hence
the Inquiring Authority is justified in accepting the previous
statements of the witnesses as evidence on record. With regard to the
contention of the cross- examination of the complainant Sri
Praveen,learned counsel for the respondents submits that as the
evidence of PW 2 and 3 would clearly indicate that the applicant was
present on the relevant day and Sri Praveen has been assaulted by the
applicant at the premises of the Accountant General and the incident
also has been spoken to by PW 3 who could be treated as an eye witness
to the
incident. If so, the non-examination of the complainant Praveen is not
the reason to reject the evidence of the witnesses regarding the
incident of assault. The learned counsel also relies on the judgments
of the Apex Court reported in 2006(2) SCC 584, 2007(9) SCC 86 and AIR
1977 SC 1512 to prove that it is not necessary to examine the
complainant to prove an incident, if the incident is proved otherwise.
The learned counsel further submits that the contention that the
presence of the applicant on the day of the incident and his
participation in the dharna or agitation from 19th December to 22nd
December,2006 are not proved, is not tenable. The Inquiring Authority
has categorically found in the enquiry report that the applicant
deserted his office and duty and participated in the
demonstration from 19th December to 22nd December, 2006 held in the
office premises in connection with the suspension of Sri Santhosh
Kumar. A definite finding has been entered by the Inquiring Authority
that the applicant was present during the demonstration from 19th
to 22nd December,2006 on the basis of the evidence given by PW I who
had reported to the Sr.Accountant General and further the Inquiring
Authority found that as per the documents produced from the defence
side itself would show that the applicant was physically present in
Trivandrum in order to carry out his work at Police Headquarters and
the evidence of PW 3 would also show that the complaint Sri Praveen
had told him that the applicant was present on 30.11.2006 at 6.15 p.m.
and assaulted him and this evidence also has been considered by the
Inquiring Authority. With regard to the marking of the documents
produced by the Presenting Officer, the counsel for the respondents
submits that as per the decisions reported in AIR 1969 SC 966 and AIR
1965 SC 311, the provisions of the Indian Evidence Act is not
applicable in the departmental enquiry with regard to the evidence or
marking of evidence or documents. Further the counsel submits
that even if any defect in the marking of the documents or conduct of
the enquiry as per the principles laid down by the Apex Court reported
in 1993 (4) SCC 727 and 2006(2) SCC 584, this Tribunal can only remand
the case for a de novo trial and this Tribunal is not expected to
quash the punishment order passed by the Disciplinary Authority. The
learned counsel further submits that it is not necessary to give
reasons for the Appellate Authority at the time of confirming an
order passed by the Disciplinary Authority. It is only proper for the
Appellate Authority to consider the conclusions arrived at by the
first authority and it is not mandatory to give the reasons to confirm
the order passed by the first authority. To substantiate the above
contention, the learned counsel for the respondents also relies on
2006(4)SCC 713 and 2008(3)SCC 469.
11. On an anxious consideration of the contentions raised by the
counsel appearing for the parties and on perusal of the documents
furnished, this Tribunal has to consider whether the impugned orders
are to be upheld or not. Before answering the main arguments of the
counsel appearing for the parties, the admitted background of the
cases are to be looked into. During the relevant period the Government
of India introduced a modified pension scheme called One Rank One
Pension and for the implementation of that scheme the then Accountant
General(Accounts & Entitlement), Kerala proposed to entrust the work
of the office to outside agencies. The said proposal was objected to
and protested by the employees associations and service organizations
and they discussed the matter in detail and on the basis of the
decision arrived at by the service organizations and associations
decided to resort a peaceful means of protest by way of peaceful
agitation. In connection with the above proposed agitation one
Santhosh Kumar, a Senior Accountant, has been suspended and on
suspension of that official an agitation on the organizational level
has been called on and in persuasion of the agitation designed to
protest against the suspension of Santhosh Kumar the alleged
incident of misconduct levelled against the applicant has been
occurred, if so, the first question to be considered is that whether
the agitation or Dharna conducted from 19th December to 22nd December,
2006 was a peaceful or legal strike as against the Conduct Rules which
prohibits any of the illegal strike or dharna in violation of Rule 3
or Rule 7 of the CCS Conduct Rules, 1964, hereinafter be referred to
as the CCS (Conduct) Rules and further question to be considered is
that whether the applicant was present in the office premises of the
Accountant General and participated in the dharna or agitation and
whether on 30.11.2006 at 6.15 p.m, the applicant assaulted Shri
V.K.Praveen or not. Under the above circumstances the charge memos
dated 21.3.2007(Annexure A1), 16.4.2007(Annexure A3) and
30.7.2007(Annexure A5) have to be analysed. As per Annexure A1
memo it is alleged that on 30.11.2006 at 6.15 p.m. the applicant
hit with his leg on the abdomen of Shri Praveen and the applicant
threatened him with dire consequences once AG is transferred from the
place , while the latter was returning to the section after keeping
the bag of the Accountant General in the Staff Car. The action of the
applicant amounts to a misconduct coming under clause (iii) of Sub
Rule 1 of Rule 3 and Rule 7 of the CCS(Conduct)Rules, 1964. In
Annexure A3, it is further directed to explain within 10 days of the
receipt of the memo to show cause why disciplinary action under the
CCS (CC&A) Rules,1965 and administrative action as contemplated in FR
17-1and FR 17-A should not be taken against him. Apart from the
allegations contained in Annexures A1 and A3 , it is alleged in
Annexure A5 charge memo that the Principal Accountant General and
Disciplinary Authority proposed to hold an enquiry against the
applicant under Rule 14 of the CCS (CC&A) Rules,1965 and directed the
applicant to submit his written statement within 10 days from the date
of receipt of the charge memo. Along with the memo dated 30.07.2007 5
separate Articles of Charges have been framed against the
applicant. On the basis of the above charge memo, the Statement of
Imputations of misconduct in respect of the Articles of Charges framed
against the applicant was also narrated. The Articles of above 5
charges reiterate rather combined allegations contained in Annexure A1
and Annexure A3 memos . For Annexure A1 and Annexure A3 memos the
applicant had filed his explanations denying the allegations
levelled against him as per the explanations offered by the applicant
dated 27th March,2007 and 7th May,2007 respectively. However an
enquiry has been ordered and the applicant on receipt of the notice
from the Inquiring Authority filed his written statement reiterating
his stand taken in the explanations furnished to the memos received by
him. To answer the first question whether there was any illegal
strike or any agitation as alleged in the charge memo from 19th
December to 22nd December, 2006 in connection with the suspension of
Santhosh Kumar, the Inquiring Authority found that as per Exhibit A6
there was an unauthorized dharna conducted without permission of
the authorities. Conducting a meeting/demonstration within the office
premises without the permission of the authorities is prohibited one
and there is evidence to show that the dharna conducted was illegal
one. But to substantiate this finding the Inquiring Authority relies
only on Exhibit A6, Memo No.C. Cell/Audit/Tr.48 dated 27.4.2007 and
this is not proved by adducing any admissible evidence. Exhibit A6 was
marked through the Presenting Officer and this document Exhibit A6
produced along with the charge memo has not been properly proved to
show that the so-called dharna or agitation was irregular, illegal or
without any permission. The written statement of the applicant in
this context has not been analyzed properly by the Inquiring Authority
or the Disciplinary Authority. The specific case set up by the
applicant in his written statement is that there was no agitation in
the office, as alleged and there was no illegal strike, coercion or
physical duress in connection with any matter pertaining to the
service of any Government servant. There was a call from the Audit and
Accounts Association of Kerala office, which is a unit of the All
India Audit and Accounts Association, recognized by the Government of
India under the CCS (RS) Rules and there was a call for peaceful
demonstration and dharna and the same was very peaceful. There was no
complaint against the demonstration and dharna from employees except
from some interested corners. In the light of the above stand by the
applicant it is the duty of the Inquiring Authority and the
Disciplinary Authority to prove that the strike or the dharna or
demonstration staged from 19th December to 22nd December,2006,
was illegal and without permission, whereas the agitation was a
peaceful one and within the rights of the trade unions resorting
collective bargain to stop the proposal for outsourcing the work of
One Rank One Pension scheme and the suspension followed by such
protest. The Inquiring Authority found that the applicant deserted his
duties and participated in unauthorized demonstration/dharna. On the
basis of the evidence of DW I who had stated that the dharna was in
connection with the suspension of Santhosh Kumar and the dharna was
an unauthorized mass dharna in which a large number of not less than
100 persons participated. Further it is concluded by the Inquiring
Authority that even if there is no evidence to show that there was a
call for strike of any association during December, 2006 it is clear
that dharna of 19th to 22nd December,2006 will tantamount to
striking work by the participants since such large number
abstaining from work would naturally result in slowing down work and
as per the Government of India Office Memorandum No.25/23/66-Estt(A)
dated 9th December,2006, actions which would fall under the definition
of strike would include stay-in, sit-down etc. The further finding of
the Inquiring Authority is that it is clear that the unauthorized
dharna/demonstration by such a large number or over such a long
period was a coercive strike to pressurize the administration of the
office to take certain steps such as revoking the suspension of Shri
Santhosh Kumar. Thus the applicant participated in an unauthorized
strike or dharna or demonstration and thereby violated clause (ii) of
Rule 7 of the CCS (Conduct) Rules, 1964. On a careful reading of the
depositions given by PWs 1 to 3, and the documents proved through
the Presenting Officer would show that there was no evidence to hold
that the demonstration or dharna was illegal or any coercive steps
have been taken place. Whereas the evidence of DWs I to 3 and the
explanation given by the applicant would show that there was a
peaceful agitation/dharna in connection with the suspension of Sri
S.V.Santhosh Kumar and there is no evidence to show that the said
agitation was illegal or it could be called as a strike or cessation
of work in the office of the Accountant General. No witness has stated
that any office work has been paralyzed or affected by the agitation
spoken to by DWs 1 to 3. Even if such a violent demonstration or
strike occurred and the applicant participated therein, it should be
proved by legally acceptable evidence . Staging a dharna or an
agitation on the call made by the Service Associations of Employees
Organizations is not in violation of Rule 7 of the CCS(Conduct) Rules.
At the same time to have an association or to have a collective
bargaining on the organizational level is permissible and within the
fundamental right of the employees guaranteed as per Article 19 of the
Constitution of India as well as the Service Rules permitting the
Government employees to have a trade union or an organization to
protect their grievance or to show protest against any order or action
on the side of the employer and this is clear from the judgments of
the Apex Court reported in AIR 1962 SC 1166; Kameshwar Prasad &
others vs. State of Bihar and AIR 1963 SC 822; O.K.Ghosh and another
vs. E.X.Joseph. In the first case, the Apex Court considered Rule 4 of
the Bihar Government Servants Conduct Rules,1956 which prohibits any
form of demonstration and against resorting to strike.
The Apex Court on considering the issue raised therein held in
paragraph 13 of the judgment, as follows:-
" (13)The first question that falls to be considered is
whether the right to make a "demonstration" is covered by either or
both of the two freedoms guaranteed by Art.19(1)(a) and
19(1)(b). A "demonstration" is defined in the Concise Oxford
Dictionary as "an outward exhibition of feeling, as an exhibition of
opinion on political or other question especially a public
meeting or procession". In Webster it is defined as "a public
exhibition by a party sect or society .......... ..... as by a parade
or mass- meeting. Without going very much into the niceties of
language it might be broadly stated that a demonstration is a
visible manifestation of the feelings or sentiments of an individual
or a group. It is thus a communication of one's ideas to others to
whom it is intended to be conveyed. It is in effect therefore a form
of speech or of expression, because speech need not be vocal since
signs made by a dumb person would also be a form of speech.
It has however to be recognized that the argument before us is
confined to the rule prohibiting demonstration which is a form of
speech and expression or of a mere assembly and speeches therein and
not other forms of demonstration which do not fall within the content
of Art.19(1)(a) or 19 (1)(b). A demonstration might take the form of
an assembly and even then the intention is to convey to the person
or authority to whom the communication is intended the feelings of
the group which assembles. It necessarily follows that there are
forms of demonstration which would fall within the freedoms
guaranteed by Art.19(1)(a) & 19(1)(b). It is needless to add that from
the very nature of things a demonstration may take various forms; it
may be noisy and disorderly, for instance stone-throwing by a crowd
may be cited as an example of a violent and disorderly demonstration
and this would not obviously be within Art.19(1)(a) or (b). It can
equally be peaceful and orderly such as happens when the members of
the group merely wear some badge drawing attention to their
grievances."
So also the same question was considered by the Apex Court in
O.K.Ghosh's case, cited supra, wherein the Apex Court upheld the
fundamental right guaranteed under Article 19 of the Constitution of
India can be claimed by the Government servants. In the above judgment
in paragraphs 10 and 11, the Apex Court held as follows:-
" (10)This argument raises the problem of
construction of cl.(4).Can it be said that the rule imposes a
reasonable restriction in the interests of public order ? There can
be no doubt that Government servants can be subjected to rules which
are intended to
maintain discipline amongst their ranks and to lead o an efficient
discharge of their duties. Discipline amongst Government employees
and their efficiency may in a sense, be said to be related to public
order. But in considering the scope of cl.(4), it has to be borne in
mind that the rule must be in the interests of public order
and must amount to a reasonable restriction. The words "public
order"occur even in cl.(2),which refers, inter alia, to security of
the State and public order. There can be no doubt that the said
words must have the same
meaning in both cls.(2) and (4). So far as cl.(2) is concerned,
security of the State having been expressly and specifically provided
for, public order cannot include the security of State, though in its
widest sense it may be capable of including the said concept.
Therefore, in cl.(2), public order is virtually synonymous with
public peace, safety and tranquility. The denotation of the said
words cannot be any wider in cl.(4). That is one consideration which
it is necessary to bear in mind. When cl.(4) refers to the
restriction imposed in the interests of public order, it is necessary
to enquire as to what is the effect of the words "in the interests
of". This clause again cannot be interpreted to mean that even if the
connection between the restriction and the public order is remote
and indirect the restriction can be said to be in the interests of
public order. A restriction can be said to be in the interests of
public order only if the connection between the restriction and the
public order is proximate and direct. Indirect or far-fetched or
unreal connection between the restriction and public order would
not fall within the purview of the expression "in the interests of
public order". This interpretation is strengthened by the other
requirement of cl.(4) that, by itself, the restriction ought to be
reasonable. It would be difficult to hold that a restriction which
does not directly relate to public order can be said to be reasonable
on the ground that its connection with public order is remote or
far-fetched. That is another consideration which is relevant.
Therefore, reading the two requirements of cl. (4), it follows that
the impugned restriction can be said to satisfy the test of cl.(4)
only if its connection with public order is shown to be rationally
proximate and direct. That is the view taken by this Court in
Superintendent,Central Prison, Fatehgarh v. Dr.Ram Manohar Lohia AIR
1960 SC 633.In the words of Patanjali Sastri J.in Rex v. Basudev, 1949
FCR 657 at p 661:(AIR 1950 FC 67 at p.69)"the connection contemplated
between the restriction and public order must be real and proximate,
not far-fetched or problematical." It is in the light of this legal
position that the validity of the impugned rule must be
determined.
(11) It is not disputed that the fundamental rights guaranteed
by Art.19 can be claimed by Government servants. Art.33 which confers
power on the Parliament to modify the rights in their application
to the Armed Forces, clearly brings out the fact that all citizens,
including Government servants, are entitled to claim the right
guaranteed by Art.19. Thus, the validity of the impugned rule has to
be judged on the basis that the respondent and his co-employees are
entitled to form associations or unions. It is clear that R.4-B
imposes a restriction on this right. It virtually compels a
Government servant to withdraw his membership of the Service
Association of Government servants as soon as recognition accorded to
the said association is withdrawn or if, after the association is
formed, no recognition is accorded to it within six months. In other
words, the right to form an association is conditioned by the
existence of the recognition of the said association by the
Government. If the association obtains the recognition and continues
to enjoy it, Government servants can become members of the
said association; if the association does not secure recognition
from the Government, or recognition granted to it is withdrawn,
Government servants must cease to be the members of the said
association. That is the plain effect of the impugned rule. Can this
restriction be said to be in the interests of public order and can it
be said to be a reasonable restriction? In our opinion, the only
answer to these questions would be in the negative. It is difficult
to see any direct or proximate or reasonable connection between the
recognition by the Government of the association and the discipline
amongst, and the efficiency of the members of the said
association. Similarly, it is difficult to see any connection between
recognition and public order.
12. The next point we have to consider that the finding entered into
by the Disciplinary Authority that the applicant participated in the
demonstration alleged to have been conducted from the 19th to 22nd
December,2006 and the applicant threatened and assaulted Shri
V.K.Praveen, on 30.11.2006 at 6.15 p.m. at the office premises of the
Accountant General, are supported by any acceptable evidence or
material. In this regard the Inquiring Authority relied on the
evidence of PWs 2 and 3 But these 2 witnesses have not given any
evidence to prove that the applicant has participated in the dharna
from the 19th to 22nd Dcember,2006 or assaulted Shri V.K.Praveen on
30.11.2006. What they have stated is that they have given some
statements at the time of preliminary enquiry held on 16th May,2007
before the Sr.Deputy Accountant General,Kerala in which they
have stated that the applicant had physically assaulted Shri
V.K.Praveen and verbally abused and threatened him.To accept the
previous statements of these witnesses the Inquiring Authority found
that these witnesses were not cross-examined at the time of the
enquiry. But the specific case set up by the learned counsel appearing
for the applicant is that none of the previous statements
alleged to have been recorded by the Sr.Deputy Accountant General has
been legally proved or even marked at the time of the enquiry. Instead
the witnesses were asked in the chief whether they have such a
statement on reading the alleged previous statements to the
witnesses which the witnesses admitted, but there is no recording of
such previous statements as evidenced in their depositions. If the
reliance placed by the Inquiring Authority on the previous statements,
alleged to have been given by the witnesses during the preliminary
enquiry, cannot be accepted as legal evidence. Further the Inquiring
Authority held that the documents produced and proved through the
Presenting Officer marked as Annexures A1, A5 and A6 would show that
the applicant was present and participated in the dharna held between
19th and 22nd December,2006. When we analyze these documents, which
would show that Annexure A1 is only a note of the Dy.Accountant
General dated 9.3.2007 and Annexure A5 is another note of the
Dy.Accountant General dated 19.1.2007 and Annexure A6 is the copy of
the memo dated 27.4.2007 to the applicant and all these documents
would not show that the applicant was actually present or participated
in the dharna as found by the Inquiring Authority and further Annexure
A5 would show that it is a note showing the name of the applicant who
was signatory to the note for calling a dharna but that does not mean
that the applicant was actually present at the spot or
participated in the dharna held on the 19th to 22nd
December,2006.Annexure A5 itself is a part of the notice dated
9.1.2007 and the call for agitational steps by the audit and
accounts associations notice is dated 18.12.2006 If so, the
appearance of the name of one Manuel, even without identifying that is
the applicant, cannot be accepted as an evidence to prove that the
applicant was present at the premises of the Accountant General office
and participated in the dharna held on the 19th to 22nd December,2006.
At the same time the explanation given by the applicant would show
that he was on outdoor duty during the relevant time and he claimed
TA&DA for the the relevant days which were granted by the authorities.
But the Inquiring Authority answered the said case set up by the
applicant stating that the defence has not proved any evidence to
support its claim that the charged officer was not present at the
alleged scene of occurrence of the incident in question. It is also
of the case of the applicant that the applicant was on official duty
allotted to him in outside audit wing on 19th and 20th December,2006
and he was on outside audit duty at the Police Headquarters,
Trivandrum on the 21st December,2006 and he was on transit to District
Police Office, Kannur on 22nd December,2006 To prove this fact the
applicant produced D3 series which would dhow that the tour diary of
the week ending 23.12.006 signed by the applicant and countersigned by
the supervising officer in the audit party, the attendance
register of the audit party and watch register maintained at SRA
headquarters and all these documents would show that the applicant
was present at the spot as found by the Inquiring Authority. To
overcome these documentary evidences the Inquiring Authority
held that marking one's attendance on a particular day in the
Attendance Register cannot be considered as a conclusive proof that he
attended the office during the entire day and told as the applicant
admitted that he was at Trivandrum on the 20th December,2006 to
carry out the work at the Police Headquarters, the Inquiring
Authority came to the conclusion that the applicant was present or
might have been present at the premises of the office of the
Accountant General and participated in the dharna. But these findings
are not supported by any material or evidence as acceptable for
entering such a finding. It is also to be noted that the Inquiring
Authority considered the copy of the complaint alleged to have been
filed by Shri V.K.Praveen regarding the assault made by the applicant
and the evidence of PW 3 to support the finding that the applicant was
present at the spot and assaulted Sri V.K.Praveen. In this context the
very inception of P2 the complaint alleged to have been filed by Shri
V.K.Praveen itself is doubtful as the author of the complaint has not
been examined or even cited for examination at the time of enquiry. To
avoid the examination of Shri V.K.Praveen no explanation is
forthcoming from the prosecution side and that apart the said
complaint filed by Shri V.K.Praveen is dated 1.12.2006, whereas it has
reached the Accountant General or acted on by the Accountant General
only on 9.4.2007 and such a long delay for not taking any action in
the complaint filed by Shri V.K.Praveen is enough to discard this
document as a genuine one. In this context the learned counsel for the
respondents relies on the judgements of the Apex Court reported in
1998(7) SCC 97; Director General, Indian Council of Medical Research
and others vs. Dr.Anil Kumar Ghosh and another and 1999(8)SCC 582;
Hardwari Lal vs. State of U.P. & others. In the first case, it is held
by the Apex Court that the genuineness of documents produced during
the enquiry was not in dispute and therefore their authors need not be
examined and if opportunities are given to the delinquent officer to
inspect the documents during the course of enquiry omission to mark
such exhibits during the course of the enquiry did not vitiate the
enquiry. In the second case the Apex Court taken the view that if
there are other materials sufficient to come to a conclusion one way
or the other, observing the impact of the complainant's testimony
could not be visualized and also evidence of other witnesses are
sufficient to prove the charge against the delinquent officer, the
non-examination of the complainant will not vitiate the enquiry. But
when analyzing the evidence of the case in hand, the facts considered
by the Apex Court in the above two cases are entirely different from
that the facts under discussion. If the evidence of Shri Praveen is
excluded and what other witnesses namely PWs 1 to 3 given, by itself
is not enough to conclude that the applicant was present and assaulted
or threatened Shri V.K.Praveen. In this regard the evidence of PW I
would show that he had given a report to the Dy.Accountant General
regarding the incident and what is the contents of that report is not
spoken to by any witness before the Inquiring Authority. Sri Praveen
had told him that the applicant threatened and and assaulted him on
30.11.2006. But the evidence of these witnesses is not substantial or
corroborated by other evidence and being an unsupported piece for
concluding that the applicant was present at the spot and assaulted
Shri V.K.Praveen. If so, a close reading of the documentary evidence
produced and marked through the Presenting Officer and the evidence of
PWs 1 to 3 are not legally acceptable evidence to prove any of the
charge levelled against the applicant. Hence the finding
entered into by the Inquiring Authority is a perverse finding. If
there is no acceptable evidence to prove the charges against the
applicant it is only proper for us to take a conclusion that the
charges levelled against the applicant are not proved by any legally
acceptable evidence. The same is the principle involved in other cases
also. So we are not accepting the same in the light of the facts of
the case in hand. Non-examination of the material witness can draw an
adverse inference as per the judgment of the Apex Court held in AIR
1968 SC 1402 in Karnesh Kumar Singh and others vs. State of U.P.
13. The next point we have to consider is that whether the
Disciplinary Authority has applied his mind while passing the
impugned order of removal from service on the basis of the enquiry
report. The Disciplinary Authority has not given any reason to
accept the findings entered into the Inquiring Authority while
imposing the penalty order except accepting the report of the
inquiring Authority without assigning any reason. A reading of the
impugned order of penalty, namely Annexure AIX order would show that
the finding of the Inquiring Authority is simply followed and without
giving any reason or applying its mind for issuing the penalty order
of dismissal of the applicant, the Disciplinary Authority erred in
accepting the evidence of DW I and DW 2 who had given evidence before
the Inquiring Authority that if the applicant was present in the
office he would have participated in the congregation. But this
finding has been accepted by the Disciplinary Authority on the ground
that as there is evidence to show that the applicant was present at
the Headquarters on that day and this finding of the Disciplinary
Authority is without any basis and further the Disciplinary Authority
found that there is reasonable nexus in the evidence of PWs 2 and 3
regarding the incident and their credibility has not been challenged
by cross- examining them. We have already discussed the evidence of
PWs 2 and 3 regarding the veracity of their evidence and the non-
examination of the complainant Shri V.K.Praveen itself was also found
as a ground for rejection of the charges levelled against the
applicant. But the Disciplinary Authority only had stated that he has
only concurred with the finding of the Inquiring Authority and all the
charges levelled against the applicant have been thus proved
according to the Disciplinary Authority, but we have already discussed
each and every evidence adduced before the Inquiring Authority against
the applicant and we have concluded that there is no evidence to prove
any of the charges levelled against the aplicant. In the above
circumstances, the impugned order of penalty passed by the
Disciplinary Authority is not sustainable. Apart from the above
infirmity of the order passed by the Disciplinary Authority, it could
be seen that the applicant has filed an appeal before the Appellate
Authority raising various grounds th rein, a copy of which was
produced and marked in the O.A. as Annexure A10. In Annexure A10 the
applicant has raised more than 10 grounds to reject the finding
entered into by the Inquiring Authority and also to set aside the
order passed by the Disciplinary Authority. But it is surprisingly
noted by us that none of the grounds in the appeal memorandum has been
considered by the Appellate Authority. No reason has been stated by
the Appellate Authority for confirming the penalty order passed by the
Disciplinary Authority. In this context the judgements of the Apex
Court reported in 2006 (4)SCC 713; in Narinder Mohan Arya vs. United
India Insurance Co.Ltd, and 2008(3)SCC 469;Divisional Forest Officer,
Kothaguden and others vs. Madhusudhan Rao, are relevant. In the first
case, the Apex Court held in paras 32 and 33, as follows:-
"32. The Appellate Authority, therefore, while disposing of the
appeal is required to apply his mind with regard to the factors
enumerated in sub-rule (2) of Rule 37 of the Rules.
The judgment of the civil court being inter parties was relevant. The
conduct of the appellant as noticed by the civil court was also
relevant. The fact that the respondent has accepted the said judgment
and acted upon it would be a relevant fact. The authority considering
the memorial could have justifiably come to a different conclusion
having regard to the findings of the civil court. But, it did not
apply its mind. It could have for one reason or the other refused to
take the subsequent event into consideration, but as he had a
discretion in the matter, he was bound to consider the said question.
He was required to show that he applied his mind to the relevant
facts. He could not have without expressing his mind simply ignored
the same.
33. An appellate order if it is in agreement with that of the
disciplinary authority may not be a speaking order hut the authority
passing the same must show that there had been proper application of
Ind on his part as regards the compliance with the requirements of law
while exercising his jurisdiction under Rule 37 of the Rules."
Further, the Apex Court, in para-36 of the said judgment, while
considering Rule 37 of General Insurance (Conduct, Discipline and
Appeal)Rules,1975, an analogous provision of Rule 27 of the CCS
(CC&A)Rules,1965 held that:-
"The Appellate Authority, when the Rules require application of
mind on several factors and serious contentions have been raised, was
bound to assign reasons so as to enable the writ court to ascertain
as to whether he had applied his mind to the relevant factors which
the statute requires him to do. The expression "consider" is of
some significance. In the context of the Rules, the Appellate
Authority was required to see as to whether (i) the procedure laid
down in the Rules was complied with; (ii) the enquiry officer was
justified in arriving at the finding that the delinquent officer was
guilty of the misconduct alleged against him; and (iii) whether
penalty imposed by the disciplinary authority was excessive." In the
2nd case, the Apex Court while considering Rule 27 of the
CCS(CC&A)Rules, held in para-20, as follows:-
"20. It is no doubt also true that an appellate or revisional
authority is not required to give detailed reasons for agreeing and
confirming an order passed by the lower forum but, in our view, in the
interests of justice, the delinquent officer is entitled to know at
least the mind of the appellate or revisional authority in dismissing
his appeal and/or revision. It is true that no detailed reasons are
required to be given, but some brief reasons should be indicated even
in an order affirming the views of the lower forum."
In this context the learned Sr.Counsel appearing for the
respondents also brought to the notice of this Tribunal to a
judgment of the Apex Court reported in JT 2009(2) SC 176 in Roop Singh
Negi vs. Punjab National Bank & Ors, wherein the Apex Court considered
the extent of the duty of the Disciplinary Authority or the Appellate
Authority and contended that the Disciplinary Authority as well
as the Appellate Authority are not bound to give all the reasons in
support of their finding. But a reading of the above judgment would
show that a decision must be arrived at on some evidence which is
legally admissible. Further it is stated that though the provisions
of the Evidence Act may not be applicable in a departmental
proceeding but the principles of natural justice should be followed
especially when a report of the Enquiry Officer was based on merely
ipse dixit as also surmises and conjectures, the same could not have
been sustained, since the inferences drawn by the Enquiry Officer were
apparently not supported by any evidence. We have already concluded
that to prove the charges levelled against the applicant, there were
no material or any evidence available on record and if so, the
findings entered into by the Inquiring Authority, basing on which the
orders passed by the Disciplinary Authority and confirmed by the
Appellate Authority, would become a nullity.
14. In the light of the discussions made in this order and the
findings entered, we are of the considered view that the impugned
orders are not sustainable and hence they are liable to be set aside
and the applicant shall be exonerated from all the charges levelled
against him. Accordingly the Application is allowed. Annexure AIX
order of the Disciplinary Authority, and Annexure XI order of the
Appellate Authority, are hereby set aside and the respondents are
hereby directed to reinstate the applicant in service forthwith
with all consequential benefits.
There will be no order as to costs.
(K.George Joseph)
(Justice K.Thankappan)
Member (A)
Member (J)
