Rama Kant Sharma Udbhrant v. Union of India and Another

9. Thereafter, the petitioner preferred Review Application bearing No. 136/2018 before the Tribunal to review the order dated 29.08.2022. The Review Application was dismissed vide order dated 05.10.2018 which is extracted below: “This Review Application (RA) is filed with a prayer to review the order passed in OA.

2. On repeated queries, the applicant is not able to state as to what is the error or inaccuracy in the order passed in OA. We do not find any basis to entertain this RA. It is, therefore, dismissed. We, however, make it clear that of the applicant makes an application for furnishing of documents in the course of the inquiry, the respondents shall either furnish him or inform him in writing as to why the documents cannot be supplied. The respondents shall also keep in view the principle that if any document is not furnished to the charged officer, it cannot be relied upon in departmental proceedings.”

10. The Enquiry Report was submitted on 14.06.2019, wherein the article of charge was held to be proved.

11. The petitioner submitted his representation dated 28.11.2020 against the findings of the Enquiry Officer, which was duly considered by the Disciplinary Authority. Thereafter, a tentative decision was taken to impose a suitable cut in pension and the matter was referred to the Union Public Service Commission[4] for its advice. The UPSC concurred with the proposed punishment, and the President, after due consideration of the Enquiry Report, the advice of the UPSC, and the representation dated 17.06.2022 submitted by the petitioner, passed the impugned order dated 29.08.2022 withholding 20% of the petitioner‟s monthly pension for a period of two years.

12. Aggrieved, the petitioner preferred OA No. 2876/2022 before the Tribunal, which came to be dismissed vide order dated 01.11.2022. The Tribunal upheld the validity of the departmental proceedings and found no perversity in the decision of the Disciplinary Authority or the procedure adopted. The relevant portion of the impugned order dated 01.11.2022 is reproduced hereinbelow:

13. The petitioner has now approached this Court by way of the present writ petition, assailing the impugned order dated 29.08.2022 passed by the Disciplinary Authority, as well as the enquiry Hereinafter “UPSC” proceedings culminating in the Enquiry Report dated 14.06.2019, and the consequential order of the Tribunal dated 01.11.2022, whereby his OA was dismissed.

14. We have heard Mr. A.K. Bhakta, learned Counsel for the petitioner and Mr. Neeraj, learned SPC for the respondents.

15. Mr. A.K. Bhakta has assailed the impugned orders on multiple grounds, primarily contending as follows: i. The disciplinary proceedings were reinitiated in 2013 based on a show cause memorandum dated 07.10.2009, which had already been withdrawn on 16.02.2010 by the then Director General, Doordarshan. ii. The enquiry was initiated nearly three years after the petitioner‟s retirement, violating the limitation period and established legal norms under Rule 9 of the CCS (Pension) Rules. iii. The enquiry proceedings suffered from grave procedural irregularities, no witnesses were examined, crucial defence documents were denied, the inquiry was conducted by officers unfamiliar with programme procedures, and the petitioner was denied a fair opportunity to defend himself. It is submitted that the delay of over nine years in concluding the proceedings, without any explanation, violates principles of natural justice and settled law. iv. The petitioner was not provided with essential and crucial documents necessary for his defence, despite repeated requests and directions from the PMO, CVC and Ministry of Information & Broadcasting. v. The chargesheet was approved by the State Minister of Information & Broadcasting, instead of the Cabinet Minister, which is procedurally defective and legally unsustainable. vi. The decision under challenge was taken by a committee of six senior officers, including the DG, DDG, and the petitioner himself, however, only the petitioner was selectively proceeded against, indicating discrimination and victimization. vii. The petitioner had received vigilance clearance before retirement confirming that no inquiry or penalty was pending or contemplated which should preclude reopening of the same issue post-retirement. viii. The Enquiry Officer and presenting officer were from engineering background, unfamiliar with programming matters, and thus lacked competence to assess the issue, leading to misunderstanding of programme functioning. ix. The petitioner, a senior citizen of over 72 years, dependent solely on pension and recently bereaved of his spouse, is facing undue hardship due to the impugned penalty, which is harsh, disproportionate, and contrary to public interest. It is contended that the Tribunal failed to appreciate these facts and legal infirmities while dismissing the petitioner‟s case.

16. Per Contra, Mr. Neeraj has opposed the petition and supported the impugned orders by contending as follows: i. That the departmental proceedings were initiated in accordance with law and after obtaining sanction of the President of India under Rule 9 of the CCS (Pension) Rules, since the alleged misconduct came to light during the petitioner‟s tenure in service and involved serious irregularities in violation of prescribed norms; ii. The earlier show cause memorandum dated 07.10.2009, though withdrawn by the then Director General on 16.02.2010, was only preliminary in nature and was not based on any formal disciplinary proceeding. The final decision to initiate regular disciplinary proceedings was taken only after full facts were considered and a formal charge sheet was approved and issued on 12.03.2013; iii. The delay in initiation and conduct of inquiry is not fatal in the present case, as the matter involved consideration at multiple levels, including the Ministry and the UPSC. Moreover, no prejudice has been demonstrated by the petitioner as arising from such delay, which, in any event, is partly attributable to the petitioner himself; iv. The petitioner was accorded full opportunity to defend himself in the inquiry proceedings and due process was followed in accordance with Rule 14 of the CCS (CCA) Rules, 1965. The petitioner participated in the inquiry, submitted a written defence, and was allowed to present his case; v. That the nature of misconduct, involving the processing and revival of a programme in contravention of Slotting Committee decisions and Doordarshan‟s Sponsored Programme Guidelines, was serious and warranted disciplinary action. The petitioner, being a senior officer, was expected to exercise due diligence and not mechanically follow superior orders; vi. The selection of the Inquiry Officer and Presenting Officer from the engineering stream does not vitiate the proceedings, as both officers were competent under the rules and the petitioner raised no such objection at the appropriate stage; vii. The grant of vigilance clearance at the time of retirement does not preclude initiation of proceedings under Rule 9 of the CCS (Pension) Rules, as the disciplinary action was initiated with the sanction of the President, and based on subsequent findings of misconduct recorded after full inquiry; viii. The penalty of withholding 20% of the petitioner‟s pension for a period of two years has been imposed after considering the gravity of the misconduct, the findings of the Inquiry Officer, and the advice of the UPSC. The punishment is limited, reasonable, and does not warrant interference in writ jurisdiction.

17. After considering the rival contentions of the learned counsel for the parties and perusing the pleadings and material on record, and the impugned order dated 01.11.2022 passed by the Tribunal, we are unable to come to the aid of the petitioner.

18. At the outset, it is observed that the primary challenge mounted by the petitioner pertains to the legality of the disciplinary proceedings initiated against him post-retirement, particularly with reference to the alleged delay and the withdrawal of an earlier show cause memorandum dated 07.10.2009. It is contended that the said memorandum, having been withdrawn on 16.02.2010, ought to have precluded the issuance of a fresh charge-sheet in 2013. However, this contention fails to withstand scrutiny. The withdrawal of the earlier memorandum was purely administrative in nature and did not amount to a conclusive adjudication on merits. The mere withdrawal of the said memorandum, which had not culminated in any formal inquiry, does not preclude the Disciplinary Authority from initiating appropriate action under the relevant service rules. The subsequent initiation of disciplinary proceedings, based on a proposal dated 15.02.2010, and duly sanctioned by the President of India under Rule 9 of the CCS (Pension) Rules, was legally competent and procedurally valid.

19. The petitioner further contends that the disciplinary proceedings were vitiated on account of delay, both in initiation and conclusion. It is well-settled that while delay is a relevant factor, it is not determinative unless it is shown to have caused demonstrable prejudice to the defence. The test is not the mere passage of time, but whether such delay has rendered the inquiry unfair or oppressive. In the present case, although there was a lapse of time between the framing of the charge-sheet on 12.03.2013 and the passing of the penalty order dated 29.08.2022, the petitioner actively participated in the inquiry, submitted his written statement, and failed to establish any material prejudice. The delay, in part, was also attributable to the petitioner‟s own conduct, including the filing of multiple representations and availing various remedies available under law, filing of the original applications before the Tribunal, which contributed to the protraction of proceedings. Accordingly, this contention is devoid of merit. It is trite that mere bald averments, unsubstantiated by any cogent material or evidence on record, cannot form the basis for vitiating departmental proceedings on the ground of delay. In the present case, the petitioner has failed to place on record any demonstrably evidence to establish to establish that the delay occasioned any real or substantial prejudice to his defence or impaired his ability to effectively participate in the inquiry.

20. In support of his submission that the findings of the Enquiry Officer are vitiated for want of proof of documents, Mr. A.K. Bhakta has placed reliance on the judgment of the Hon‟ble Supreme Court in Roop Singh Negi v. Punjab National Bank & Ors.[5] It is contended that mere production of documents is insufficient and that the contents of the documents relied upon in the inquiry must be duly proved by examining witnesses.

21. However, this Court finds the petitioner‟s reliance on the aforesaid judgment to be wholly misplaced in the facts of the present case. The principles enunciated in Roop Singh Negi (supra) are applicable in cases where uncorroborated documentary evidence is relied upon without providing the delinquent officer an opportunity to rebut the same, or where the inquiry stands solely on unproven material. In the present case, the petitioner participated fully in the proceedings, submitted a detailed written defence. The petitioner had sufficient opportunity to rebut the documentary material and failed to do so. Accordingly, the findings recorded by the Enquiry Officer based on such documents cannot be faulted for want of evidentiary value, and the plea of procedural irregularity raised in this regard is devoid of merit.

22. With respect to the petitioner‟s grievance regarding the alleged denial of crucial defence documents, this Court finds no merit in the said contention. A perusal of the record reveals that the documents sought by the petitioner were neither relied upon nor annexed to the chargesheet, and did not constitute the foundational material for substantiating the article of charges. Moreover, vide communication dated 06.06.2016, it was informed to the petitioner that the competent authority had directed that the original complaint would not be furnished. The documents in question were claimed to be confidential in nature, and the Director General, Doordarshan, the lawful custodian thereof, invoked privilege over the same with the prior approval of the Chief Executive Officer, Prasar Bharati.

23. Mere claim of prejudice, unaccompanied by demonstrable proof of actual prejudice suffered, does not vitiate the disciplinary proceedings. As held by the Hon‟ble Supreme Court in State of U.P. v. Harendra Arora[6], a delinquent employee must establish how the nonsupply of documents materially impaired his defence. In the present case, no such substantiation has been furnished by the petitioner. It is a well-settled position of law, as reaffirmed in State of U.P. v. Ramesh Chandra Mangalik[7], that where privilege is duly claimed over confidential documents and supported by recorded reasons, denial of such documents does not, ipso facto, vitiate the proceedings. The only exception is when mala fides or arbitrariness in such invocation is shown. In the present case no such allegation has been substantiated. In fact, the respondents made reasonable accommodation by offering to provide the petitioner with a reacted version of the relevant vigilance file notings, after concealing the identity of officials and complainants, thereby balancing the petitioner‟s right to defence with institutional confidentiality. We find no illegality or procedural infirmity in the non-supply of the documents in question, nor any prejudice occasioned thereby to the petitioner‟s right.

24. As regards the petitioner‟s plea that the disciplinary proceedings were barred under Rule 9 of the CCS (Pension) Rules, the same is factually and legally incorrect. The record discloses that the formal disciplinary proceedings were initiated only thereafter, with the sanction of the President of India, under Rule 9 of the CCS (Pension) Rules.

25. At this stage, it is pertinent to refer to Rule 9 of the CCS (Pension) Rules, which stipulates as follows:

“9. Right of President to withhold or withdraw pension (1) The President reserves to himself the right of withholding a pension or gratuity, or both, wither in full or in part, or withdrawing a pension in full or in part, whether permanently of for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon reemployment after retirement. Provided that the Union Public Service Commission shall be consulted before any final orders are passed. Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem. (2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,-

(i) shall not be instituted save with the sanction of the

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure application to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) Deleted (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where the departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. (5) Where the President decides not to withhold pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule,- (a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) Judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented on the court.”

26. In the present case, the petitioner had superannuated on 31.05.2010 and the departmental proceeding was initiated by issuing the chargesheet dated 12.03.2013. On the same date, the President had accorded sanction for initiation of the said departmental proceedings against the petitioner was not instituted while in service. In such a situation, Rule 9(2)(b)(i) of the CCS (Pension) Rules mandated a clear prohibition that such a departmental proceeding against the petitioner should not have been instituted save with the sanction of the President of India. Therefore, the contention of the petitioner that the enquiry proceedings were initiated nearly after three years after the petitioner‟s retirement, violated Rule 9 of the CCS (Pension) Rules, is baseless.

27. As per the pension rule 9(2)(b)(ii) of the CCS (Pension) Rules, the Government can frame charges even after retirement with respect to an act of misconduct committed before the expiry of four years from the date of such act. In this case, he superannuated on 31.05.2010, charges were framed on 12.03.2013 with reference to an act that was committed on 27.08.2009. Hence, there is no illegality in issuance of chargesheet and therefore, enquiry can be continued and punishment may also be awarded.

28. The petitioner has further assailed the departmental proceedings on the ground that the Inquiry Officer and the Presenting Officer were drawn from the engineering cadre and were allegedly unfamiliar with the nuances of programme-related functions. This objection, however, merits rejection. The selection and appointment of both officers were in conformity with the applicable rules, and there is nothing on record to suggest that either of them lacked the requisite competence or authority to discharge their respective roles. Moreover, the petitioner did not raise any objection to their appointment at the relevant stage of the proceedings. In the absence of any specific plea of bias, lack of jurisdiction, or procedural impropriety, such a contention, raised belatedly, is unsustainable and deserves to be repelled. The mere fact that the officers belonged to a different professional stream does not, by itself, vitiate the inquiry or render the proceedings infirm.

29. As regards the nature of the penalty imposed upon the petitioner is limited in nature, i.e. withholding of 20% of the monthly pension for a period of two years. This measure, having been imposed after consideration of the enquiry report and the advice of the UPSC, cannot be said to be disproportionate, arbitrary, or so unreasonable as to shock the conscience of the Court or warrant interference in the exercise of writ jurisdiction.

30. The Tribunal has, in our view, correctly observed the limited scope of judicial interference in matters concerning the quantum of punishment imposed in disciplinary proceedings. The relevant paras of the impugned judgment are extracted below: “In a recent judgment dated 20.04.2022 in Civil Appeal No. 2707 of 2022 titled as AniI Kumar Upadhyay vs. The Director General, SSB andOthers, the Apex Court has held as under: “8. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to: i)In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as „Wednesbury principles‟. In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further 13 said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken. ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under: "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:

the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.[4] above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.””

31. While the petitioner has sought to justify his conduct by submitting that he acted under the directions of his superior officers and that the matter was deliberated upon by a committee of senior officials, such a plea cannot absolve him of responsibility. As a senior functionary, the petitioner was duty-bound to ensure adherence to the established norms and procedural safeguards. Blind compliance with superior instructions, when in derogation of statutory guidelines or binding administrative procedures, cannot serve as a shield against disciplinary accountability.

32. Furthermore, the conduct of the petitioner reveals a clear disregard for the procedural requirements mandated under the applicable guidelines. Despite a specific noting by his subordinate, Mr. A.M. Rao, the then Assistant Director of Programme, recommending that the proposal for revival of the programme „Kiran‟ be placed before the Empowered Committee, the petitioner proceeded to seek approval merely on a file noting to the effect that the producer may be asked to deposit the processing fee. Thereafter, without securing the requisite sanction of the Empowered Committee, which, as per the instructions issued by the Director General, Doordarshan, is the competent authority to approve such revival, the petitioner executed an agreement with the producer and allotted the programme for telecast of 130 episodes. It is significant to note that the earlier discontinuation of the programme was itself based on the recommendation of the Empowered Committee, and any proposal for its revival necessarily required the express approval of the same authority. The petitioner‟s failure to adhere to this mandatory procedural safeguard amounts to a serious lapse in administrative discipline and cannot be brushed aside as a mere technical irregularity.

33. The Tribunal, in its impugned order dated 01.11.2022, has undertaken a detailed consideration of the facts and applicable legal principles. The reasoning recorded therein is sound and does not suffer from any perversity or legal infirmity. The scope of interference by this Court, while exercising power under Article 226 of the Constitution of India, does not extend to re-evaluating the sufficiency of evidence or substituting its own view on the findings of fact, particularly where procedural fairness has been observed, as has been held by the Hon‟ble Supreme Court in State of A.P. v. S. Sree Rama Rao[8] “7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition I … under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.”

34. In view of the foregoing analysis, this Court finds no ground to interfere with the impugned orders. The writ petition is devoid of merit and is, accordingly, dismissed. Pending application(s), if any, are disposed of. There shall be no orders as to costs. AJAY DIGPAUL, J.

C. HARI SHANKAR, J.