Union of India v. Dr. Mohammed Saleem

1. The challenge in this writ petition is to an order dated July 03, 2018 in O.A. 2723/2014 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, allowing the O.A. filed by the respondent herein by stating in paragraph 8 as under:-

2. On the last date of hearing, this Court had issued default notice to the respondent as the Court had found that there was no appearance for the W.P.(C) 2664/2019 Page 2 respondent on March 07, 2022 and October 05, 2021. Today, Mr. S. M. Arif, Advocate, appears for respondent.

3. The case of the petitioner as contended by its counsel is that the respondent had joined petitioner No.2 as Technical Assistant (Bio) on August 20, 1981. He was later promoted to the post of Senior Technical Assistant (STA) (Bio) and was re-designated as Plant Protection Officer (PPO) (Bio Efficacy). He was further promoted as Assistant Director (Plant Protection) and was posted at National Plant Quarantine Station (NPQS) Rangpuri, New Delhi on April 28, 2018.

4. On May 26, 2010, the Central Bureau of Investigation (‘CBI’, in short) conducted a raid in the premises of NPQS, Rangpuri. Pursuant thereof it recommended departmental action against four officials including the respondent herein. As a consequence thereof, the four officials of NPQS, Rangpuri were issued charge sheet dated July 06, 2011. The charges framed against the respondent herein were the following:- “On the basis the complaint received by the CBI, New Delhi and after its verification, a joint surprise check was conducted by a team of ACB, CBI, New Delhi in the office of NPQS, New Delhi on 26.05.2010. At the time of joint surprise check conducted by CBI, the said Dr. Mohd. Salim, Asstt. Director (PP) while functioning as Asstt. Director, NPQS, Rangpuri, New Delhi was present in the office on 26.05.2010. Dr. Salim was present in the room of Shri Mahavir Sharma, SSA-III at the time of surprise check, wherefrom unclaimed cash for Rs.28,750/- (Rupees Twenty eight thousand seven hundred and fifty) and suspicious handwritten papers were recovered from the room of Shri Mahavir Sharma, SSA-III. Further, eleven sheets having handwritten date-wise details, name of some persons were recovered from the carry bag of Shri Mahavir Sharma, SSA-III. W.P.(C) 2664/2019 Page 3 Moreover, Shri Vijay Kumar, Mali who was attached with Shri Mahavir Sharma to assist him in processing the files, was present in the Office room of Shri Mahavir Sharma at the time of Joint Surprise Check, wherefrom unclaimed cash for Rs.5,350/- (Rupees Five thousand three hundred and fifty only) and some handwritten papers were recovered from the office carry bag of Shri Mahavir Sharma. Dr. Mohd. Salim failed to properly supervise the scrutiny of documents and deployment of Inspectors for inspection etc which led to corruption and malpractices in issue of Phytosanitory Certificates in NPQS, New Delhi. By the above act the said Dr. Mohd. Salim, Asstt Director (PP) failed to maintain absolute integrity, failed to ensure the integrity and devotion to duty of his subordinates, failed to supervise effectively and also failed to prevent malpractices in issue of Phytosanitory Certificates in NPQS, New Delhi and acted in the manner which was unbecoming of a Government servant and thereby, violated Rule 3 (1) (i), 3 (1) (iii) and 3 (2)(i) of the Central Civil Services (Conduct) Rules, 1964.”

5. The respondent submitted reply to the memorandum on July 28, 2011. Not finding the reply satisfactory, the Disciplinary Authority decided to hold the departmental inquiry. The Inquiry Officer was appointed who conducted regular proceedings. The I.O. submitted his report. The analysis/finding of the Inquiry Officer is the following:- “Analysis and finding: While carefully examining the records available on the file, selfcontained note of CBI, examination of witnesses, reply to CVO, brief provided by the Presenting Officer and the reply provided by Defence Assistant, I found that the officer was not carrying extra ordinarily excess amount with him. No incriminating or objectionable document was received from him or was found in his room searched by the CBI team on 26.5.2010. It is a fact that he was present in the cabin of Shri Mahavir Sharma at the time of search where Rs.28,750/- was found. This is a general habit if not practice, that in offices Government officials do visit rooms of their subordinates while leaving offices to talk or to exchange W.P.(C) 2664/2019 Page 4 pleasantries or to enquire about one's well being, etc. Being present in the room of his subordinate at the time of search is not leading me to draw inference that his integrity is under cloud. Therefore, violation of Rule 3 (l)(i) 85 3(i)(iii) of CCS (Conduct) Rules are not observed. As per the CCS (Conduct) Rules, 1964 every Government servant holding a supervisory post is required to take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority. On this account also Dr. Mohd Salim has been charged to have failed to observe this Rule. In the instant case, it has not been brought out before the 10 that what could have been done to ensure devotion to duty and maintaining integrity of the subordinates in which Dr. Mohd. Salim failed, whether there were any checks and balances existing in the office for the purpose. It has also not been pointed out that how the above could have been executed which CO has failed to perform. It is indeed a rule to be observed and followed by every officer but is difficult also to ensure about integrity, devotion to duty of every subordinate. In our day to day work in the Government set up it is observed that maintaining absolute integrity and' devotion to duty has become a personal choice and decision and the superior officer is not in a position to ensure absolute integrity of the subordinates. There is lack of conclusive evidence to sustain this charge, therefore, violation of Rule 3 (2)(i) by Dr. Mohd. Salim is not proved. Based on the above, facts available on the file and circumstantial evidences gathered during the inquiry, the charges against Dr. Mohd. Salim are not sustained.”

6. Suffice to state, the Inquiry Officer did not sustain the charges against the respondent. The Disciplinary Authority disagreed with the findings of the Inquiry Officer and issued a disagreement note dated January 18, 2013. The grounds of the disagreement are the following:- “(i) NPQS, Rangpuri, New Delhi is a very small office having a very limited number of staff. Hence, any supervisory officer, if W.P.(C) 2664/2019 Page 5 duty vigilance and willing to enforce discipline in such a small organization, can do it. The officer concerned should have devised or formulated certain ethics/culture to enforce the rule.

(ii) Nowhere any proof has been given as to how the CO tried at his level to follow/enforce the provisions of Rule 3(l)(i), 3 (l)(iii) and 3 (2)(i) of CCS (Conduct) Rules, 1964.

(iii) C.O. was physically present in the room from where cash was recovered from the dust bin and in which Shri Mahavir Sharma, though not on duty, was still conducting business transactions. As such it is difficult to accept that C.O. was unaware of the happenings in that room and was not involved or associated with the same.”

7. The disagreement note was sent to the respondent for his comments and representation. Vide letter dated February 25, 2013, the respondent had submitted reply to the disagreement note. The Disciplinary Authority did not agree with the reply filed by the respondent and decide to seek UPSC advise in the matter.

8. The UPSC vide its letter dated January 24, 2014, advised the imposition of penalty of reduction of pay by three stages in the time scale of pay for a period of three years. Accordingly, the Disciplinary Authority imposed the penalty of reduction of pay by three stages in the time scale of pay for a period of three years. The respondent approached the Tribunal challenging the order of the Disciplinary Authority.

9. The case of the respondent before the Tribunal was that the charge against the respondent was the failure on his part to perform his supervisory duties which charge was not proved in the inquiry. It was also his case that the Disciplinary Authority simply went ahead, on the basis of the recommendations of CBI, to institute a Regular Departmental Action against the respondent. It was also his case that the disagreement note given was W.P.(C) 2664/2019 Page 6 based on assumptions and presumptions and not on any substantive evidence.

10. The Tribunal was of the view that the penalty imposed on the respondent is excessive/disproportionate to the alleged misconduct or misdemur when the charges against the respondent have not been proved. The Tribunal also relied upon the judgment of the Supreme Court in Ranjit Thakur v. Union of India & Others, (1987) 4 SCC 611, to hold that the penalty imposed is highly disproportionate and had accordingly in paragraph 8 of the judgment reduced the penalty.

11. The submission of learned counsel for the petitioner are, the Tribunal has erred in interfering with the penalty imposed on the respondent inasmuch as the Tribunal could not have exercised the jurisdiction which otherwise is not conferred upon it.

12. That apart, it is his submission that when the charge has been proved on the basis of the disagreement note, the Tribunal even otherwise could not have modified the penalty which has been imposed on the respondent.