Full Text
W.P.(C) 4341/2013
Date ofDecision : 18"* January, 2016 UNION OF INDIA & ORS. Petitioners
Through Mr. Sanjeev Narula, CGSC with Ms. Vinod Tiwari, Advocate
RSKHAN
Through Ms. Meenu Mainee, Advocate
HON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA. J. (ORAL^
The Union of India and its functionaries have challenged the impugned order dated 14.03.2013 passed by the Principal Bench of the Central Administrative Tribunal whereby O. A. No. 4045/2010 filed by Ms. R. S. Khan-the respondent before us has been allowed
« and the penalty of censure imposed vide order dated 28.10.2009 has been set aside.
JUDGMENT
2. The respondent is a 1972 batch of Indian Defence Accounts Officer. On 27.07.2004 and 02.08.2004, while working as Controller General of the Defence Accounts,,the respondent had applied^^ ^ leave to go to the United Kingdom which was not Nevertheless, the respondent left for the United Kingdom and WP(C)No.4341/2013 2016:DHC:9086-DB returned for duty after an absenceof 518 days on 01.01.2006.
3. In the meanwhile, departmental proceedings had been initiated against the respondent vide charge Memorandum dated 29.05.2005 under Rule 14 of the Central Civil Service (Classification, Conduct and Appeal) Rules, 1965. On joining she was served with a copy of the memorandum dated 29.05.2005. The Articles ofCharge read ARTICLE OF CHARGE -1 Smt. R. S. Khan, IDAS presently posted as Controller of Defence Accounts (Internal Audit), Delhi Cantonment, remained unauthorisedly absentfrom duty from 02.08.2004 onwards and proceeded to U.K. She left the Headquarters station without submitting any application to the Competent Leave sanctioning Authority the Controller General of Defence Accounts, requesting for grant of leave. She also failed to seek prior permission ofthe said Authority before leaving the Headquarters station. The above act ofSmt. R. S. Khan, is in violation ofPara 221, 222, 223 and 251, Chapter V- "LEAVE AND ATTENDANCE"
OF THE OFFICE MANUAL Part-1.
ARTICLE OF CHARGE-II Controller of Defence Accounts (Internal Audit), Delhi Cantonment, in violation of Para 316, Chapter VI "CONDUCT AND DISCIPLINE" of the office Manual WP(C) No.4341/2013 Page[2] of 12 Part-1 addressed applications dated 27.07.2004 02.08.2004, 17.09.2004 and 20.11.2004 to the Secretary, Ministry ofDefence, who is not directly concerned with either the sanctioning of leave, or with according permission tohertoleave Headquarters station.
ARTICLE OF CHARGE-UJ Controller ofDefence Accounts (Internal Audit), Delhi Cantonment, in her applications dated 27.07.2004 and 02.08.2004 addressed to the Secretary, Ministry of Defence, made baseless allegations against the Ministry of Defence (Finance)
ARTICLE OF CHA RGF - TV Cantonment, left for U.K., without seeking prior permission of the Leave sanctioning Authority viz Controller General ofDefence Accounts, as required in Government of India, Department of Personnel and Training of its O.M. Nos. 11013/7/94-Esstt. (A) dated 18.05.1994 and11013/8/2000-Estt.(A) dated07.11.2000.
ARTICLE OF CHARGF-V Cantonment, made afalse declaration regarding source WP(C)No.4341/2013 offinance for her journey to U.K. in an unsigned Proforma submitted with her application dated 27.07.2004 which was addressed to the Secretary, Ministry ofDefence. IN the aforesaid Proforma she had declared that the source offinance for her journey to U.K. would be met from her "Providence Fund". However, she did not submit any application requesting for payment ofeither advance or withdrawalfrom her providentfund account,for the abovepurpose.
4. The respondent appeared before the Disciplinary Authority and submitted her statement ofdefence. The Inquiry Officer Ms. Nita Kapoor, the then Principal Controller ofDefence Accounts (Western Command) vide her report dated 23.02.2007 had held that aforesaid Articles of Charge 1 to 5 stood proved. The Inquiry Report pertinently records "ARTICLE OF CHARGE-I Contrary to the provisions laid down in Paras 221, 222, 223 and 251, Chapter V-"LEAVE AND ATTENDANCE" of Office Manual Part-1. Smt. R.S. Khan, IDAS submitted application dated 27.7.2004, 2.8.2004, 17.09.2004 and 20.11.2004 to the Secretary, Ministry ofDefence. In her applications she requested the Defence Secretary to issue directions to the Defence Accounts Department for sanctioning leave for two months from 2.8.2004 to 1.10.2004, not to allow them to take any vindictive action against her and sought extension ofleave upto 31.3.2005. Thus, by her above action Smt. R.S.Khan, IDAS remained unauthorisedly absent from duty from 2.8.2004 onwards and proceeded to U.K. She left the WP(C) No.4341/2013 Page 4of12 Headquarters station without submitting arty application to the Competent Leave sanctioning Authority i.e. the Controller General of Defence Accounts, requesting for grant of leave. She also failed to seek prior permission ofthe said Authority before leaving the Headquarters station and proceeded abroad. Therefore, the article of charge standsproved.
ARTICLE OF CHARGE-TJ As per Para 316, Chapter-VI "CONDUCT AND DISCIPLINE" of the Office Manual Part-l, "no member of the establishment is permitted to send copies ofhis representation to any outside authority i.e. authorities who are not directly concerned with the consideration thereof (e.g other Honourable Minister/Secretary, Member ofParliament etc.). But, Smt. R.S.Khan, IDAS, in clear violation ofaforesaid provisions, addressed applications dated 27.07.2004, 02.08.2004, 17.09.2004 and 20.11.2004 to the Secretary, Ministry of Defence, who is not directly concerned witheither sanctioningofleave to her or to permit her to leave Headquarters station. Therefore, the article ofcharge II stands proved.
ARTICLE OF CHARGE-III The Charged Officer, in her applications dated 27.07.2004 (Prosecution Exhibit 5 in folder VI) mainly alleged that she has been harassed by the Defence (Finance) and Defence Accounts Department by way of not sanctioning leave to visit abroad on different occasions on one or the other pretext and in her application dated 02.08.2004 (Prosecution Exhibit 6 in folder VI) addressed to the Secretary, Ministry of Defence, she has requested not to allow DAD and MOD (Finance) for taking any vindictive action against her. The Presenting Officer in his written brief in respect of the Charged Officer1s above statement has said that leave on earlier occasion was denied to her due to exigencies of WP(C) No.4341/2013 services, due to which she developed an unsubstantiated bias against the Department and made baseless allegations against DAD and Defence (Finance) Superior officials. As she has been granted leave in the recent past to proceed abroad andfor other reasons by the leave sanctioning authority, for which the proceedings had to be postponed and therefore the Charged Officer cannot say that the Defence Accounts Department has harassed her Further, in her written statement of defense dated 30.12.2005 in reply to the article ofcharge-Illshe has denied ofmaking any baseless allegations against the Ministry of Defence (Finance) or the Defence Accounts Department andalso admittedthat leavefor going abroad was refused by the CGDA on the grounds that the annual accounts ofCSD were to be examined carefully. The Inquiry Officer while evaluating and analyzing the evidence in respect of the Article ofCharge-Illframed by the Disciplinary Authority on the basis ofapplications dated27.7.2004 & 2.8.2004 found that the contention of the Presenting Officer is based on the facts, as the Charged Officer has been granted leave during the inquiry proceedings i.e. vide CGDA, New Delhi letters No.AN/I/1351/3/Vol. VIII dated 17.08.2006 and No.AN/I/1351/3/Vol.VIII dated 13.09.2006 w.ef 17.08.2006 to 01.09.2006 to proceed to U.K. and w.e.f 08.09.2006 to 22.09.2006 to leave duty station respectively, due to which the Inquiry had to be postponed. The Inquiry Officer agreeing with the contention ofthe Presenting Officer, the admittance of the Charged Official that she was denied leave due to exigencies of the services and in view of the fact of being granted leave during the Inquiry proceedings has no doubt that the Article of Charge-Ill stands "PROVED". However, as per the direction vide Presidential Order No.AN/I/1382/6/RSK-III dated 29th January, 2007, the spirit of the Article of WP(C)No.4341/2013 Page 6of12 Charge-Ill leveled against the Charged Official has been given reconsideration and the article ofcharge- Illstill stands "PROVED ARTICLE OF CHARGE-JV In Government ofIndia, Department ofPersonnel and Training, OM. No.l1013/7/94-Estt.(A) dated 18.05.1994, it is mentioned that "Failure to obtain permission of competent authority before leaving station/headquarters especiallyforforeign visits is to be viewed seriously and may entail disciplinary action". The Government of India, Department of Personnel hasfurther clarified in para 2 ofits O.M. No.ll013/8/2000-Estt.(A) dated 7.11.2000 that "while granting leave the sanctioning authority shall take prior approval, ifrequired, for permitting the officer to go abroad as per the existing instructions". But Smt. R.S.Khan, IDAS, left for U.K. without seeking priorpermission of the Leave sanctioning Authority viz. Controller General of Defence Accounts. Thus, thearticle ofcharge-IVstandsproved.
ARTICLE OF CHARGE-V Smt. R.S.Khan, IDAS in reply to question no.18ofthe unsigned proforma enclosed with her application dated27.7.2004 to the Secretary, Ministry ofDefence, i.e. "APPLICATION FOR OBTAINING 'NO OBJECTION CERTIFICATE' PASSPORT CUM PROCEEDING ABROAD" gave wrong declaration that the source offinance for the aforesaid trip to U.K., would be metfrom her "Provident Fund". The Charged Officer in her initial statement of defence dated 30.12.2005 in reply to the memorandum of charges contended that a cheque on account of withdrawal from GPF was received in her absence. Whereas the Presenting Officer during the Inquiry Proceedings and in his brief dated 01.11.2006 contended that the Charged Officer failed tofurnish the no. and date of claim for withdrawalfrom GPF and the no. & date ofthe cheque stated to have been WP(C)No.4341/2013 Page 7of12 received in her absence inpayment of her claim for •withdrawal After taking into consideration the contentions of the Charged Officer/Presenting Officer, the documentary evidence adduced during the Inquiry before her, most significantly the admission by the Charged Officer that a cheque on account of withdrawalfrom GPF was received in her absence, the undersigned isfully satisfied that the Charged Officer has definitely made a false declaration regarding source offinance for herjourney to U.K., as she commenced hersaidjourney by gettingfinance from an undisclosed source of finance. In this connection, the Presenting Officer's brief/Daily Order Sheet No. 03 dated 01.11.2006 containing his contention that the Charged Officer has failed to furnish the no. and date ofclaimfor withdrawalfrom GPF and the no. & date ofthe cheque stated to have been received in her absence in payment ofher claim for withdrawal were also served on the Charged Officer (acknowledgement dated 08.11.2006 kept in records) beforefmalization ofInquiry Report, but she did not refute this connection at all and failed to reply/submit her brief. It is prudent to mention here that in view of the above, the follow up taken to ensure whether any cheque has been received by the Charged Officer was not considered necessary by the Inquiry Officer as suggested in Para 3 (ii) of the Presidential Order No.AN/I/1382/6/RSK-III dated 29th January 2007. Thus, on the basis of available evidence the Article ofCharge-Vstands "PROVED". Above all, it is a fact that although the Charged Officer was afforded ample opportunity at each stage of the inquiry proceedings to participate and despite the fact that she received all the preliminary/regular hearing notices. Daily Order Sheets and Presenting Officer's brief, she neither attended any of the hearings nor intimated reasons for not attending the same. She also did not offer WP(C) No.4341/2013 'y? any comments on the Presenting Officer's brief. She did not make any effort to defend herself.
FINDINGS On the basis of the documentary evidence adduced, all the articles of charge I to Vleveled against Smt. R.S.Khan, IDAS under memorandum of charges No.AN/1/1382/6/RSK/III dated 29.09.2005 stands proved."
5. Penalty of compulsory retirement was recommended to be imposed upon the respondent. However, the Minister of Defence, on behalfof the President who is the Disciplinary Authority, decided that the punishment of 'Censure' was sufficient as the respondent was due for retirement on superannuation on 31.10.2009. This fact is specifically recorded in the order passed by the Disciplinary Authority dated 28.10.2009. The orderwas passed in the nameof the President.
6. The Tribunal by allowing the said OA, quashed the penalty of 'Censure' and has given two reasons. First reason isthat Nita Kapoor, IDAS the then Principal Controller of Defence Accounts (Western Command) who had acted as an Inquiry Officer was junior to the respondent in the cadre. The said reasoning is wrong and unacceptable. The post/rank of Principal Controller is higher in hierarchy and senior to the post/rank of Controller of Defence Accounts, which post the respondent was holding at the time of inquiry proceedings. Ms. Nita Kapoor was inducted into Indian Defence Accounts Services in 1973 whereas the respondent was inducted in 1972, but the same would not make Ms. Nita Kapoor WP(C)No.4341/2013 Page9ofl[2] junior to the respondent after she had been promoted as the Principal Controller of Accounts. Pertinently, the respondent has not made any personal allegations against the Inquiry Officer or stated that she was biased or subjected to prejudice. Ms. Nita Kapoor who had acted as an Inquiry Officer, being Principal Controller Accounts, was certainly senior being holder of a higher post.
7. The second reason given by the Tribunal is violation of principle of natural justice as the documents as requested by the respondent vide letter dated 20.03.2006 were not furnished to her. The letter dated 20.03.2006 reads as under:- "Subject: Supply ofimportant relied upon documents. With reference to memorandum of charges letter No. AN -1/1382/6/RSK/dated 29.9.2005, the following essential documents have not been included in the list of RUDs enclosed vide above memorandum. They may now be kindly supplied to me to enable me to offer may defence.
1. The copies ofthe notings/remarks/comments made by the Secretary, Ministry ofDefence with regard to my representationfor sanctioning me ex-india leave moving to personal urgencies.
2. Copy of the advice/letter of CBI communicating "NOObjection to my goingon ex-india leave.
3. Copies ofrecommendation ofCGDA to Secretary Finance Defencepermitting me to goon ex-india leave.
4. Copy of the notings/orders of the Secretary WP(C)No.4341/2013 Page 10 of12 Finance Defence regarding the recommendation of CGDAfor grant ofex-india leave to me. While the above documents may be made available to me at the earliest, I shallrequest thatI be given at least30days' time tooffer my defence as at the time moment I am busy in the proceedings of another major penalty inquiry which is currently going on day to day basis."
8. The aforesaid letter had notasked for any specific document or noting by date, name of the officer etc. The respondent had made a general or rather indecisive request for all notings/remarks/comments made by the Secretary etc. andalso copies of the recommendations to the Secretary Finance Defence etc. We do not think that this communication is sufficient to hold that there was violation of principle of natural justice. The respondent had submitted a detailed representation dated 18.10.2006 which is after writing the letter dated 20.03.2006. The respondent has not been able to show that non furnishing ofso called "documents" has caused prejudiced. To this, no grievance has been made by the learned counsel for the respondent. The inquiry officer, in her report on the question of affording an opportunity and compliance with the principles ofnatural justice had observed that the respondent had been afforded ample opportunity to participate at each stage ofthe inquiry proceedings and even received all notices, daily order sheets and the Presenting Officer's brief, but despite that she neither attended any hearing nor gave any reason for the same. WP(C)No.4341/20I[3] Page 11 of12
9. During the course of hearing, learned counsel for the respondent did accept that the respondent was abroad for aperiod for 518 days from 02.08.2004 to 01.01.2006. She asserts that the respondent was being harassed asherapplication for sanction ofleave for arranging the marriage of her daughter and to take care of her mother had been malafidely rejected. We note and understand the anxiety ofthe respondent, however we cannot ignore the fact that the respondent had absented herselffrom duty for aperiod of518 days.
10. In the facts ofthe present case, we do not think that punishment of 'Censure' can be said disproportionate or inappropriate. As the respondent was due for retirement /superannuation on 31.10.2009, the authorities have taken a lenient view.
11. We accordingly allow the present writ petition and set aside the impugned order dated 14.03.2013. The punishment of censure is upheld. OANo. 4045/2010 willbetreated as dismissed.
12. The Tribunal has also directed the respondent to make a '•^presentation before the Competent Authority for treating the intervening period as qualifying service for fixation ofpay as well as her pension. To this extent we have not interfered with the impugned order. There will be no orderas to costs.
JANUARY 18, 2017 II SANJIVKHANNA,J. CHANDER SHEKHAR, J. WP(C)No.4341/2013 „ Page 12 of! 2