Ashok Kumar Singh vs The Union Of India & Ors.

Learned Counsel for the applicant submits that the impugned punishment order is legally unsustainable and deserves to be quashed, principally because the disciplinary proceedings relate to an alleged irregularity concerning an establishment for the period 1998–2001, whereas the applicant was posted at Ranchi only from 10.03.2014 to 17.04.2017. It is contended that the applicant had no role whatsoever in the original transactions or overpayments which allegedly occurred several years before his posting at Ranchi.

It is further submitted by Learned Counsel for the applicant that there was an inordinate and unexplained delay of more than four years in initiating the disciplinary proceedings, and the charge memorandum was issued only about two and a half months before the applicant's superannuation. According to learned Counsel, such unexplained delay seriously prejudiced the applicant in defending himself, particularly when the allegations related to events and records which were more than a decade old.

Learned Counsel for the applicant further submits that the applicant had himself brought the alleged irregularities concerning the overpayment to the notice of the authorities through his communications dated 28.08.2014 and 26.10.2015. Therefore, according to him, the allegation that the applicant deliberately failed to detect or report the irregularity is contrary to the record.

It is next contended by Learned Counsel for the applicant that the applicant was denied a reasonable opportunity of defence. Several relevant documents were either not supplied or were supplied in illegible form, despite specific requests made by the applicant and directions issued during the inquiry for supply of legible copies. It is argued that without access to the relevant documents, the applicant could not effectively cross-examine the prosecution witnesses or establish his defence. Learned Counsel also submits that despite repeated requests, the defence witnesses whose evidence was stated to be material to the applicant's defence were not permitted to be examined, thereby violating the principles of natural justice.

Learned Counsel for the applicant further argues that the findings against the applicant are unsupported by cogent evidence. It is pointed out that the Inquiry Officer himself found Articles I, II and III not proved and only Article IV proved. According to learned Counsel, there was no reliable oral or documentary evidence establishing any misconduct on the part of the applicant, and the disciplinary authority could not substitute mere suspicion or inference for proof of the charge.

It is also submitted by Learned Counsel for the applicant that the disagreement note and the subsequent punishment order do not adequately deal with the detailed defence raised by the applicant. Learned Counsel contends that the impugned punishment order is essentially a non-speaking order and does not disclose proper reasons for rejecting the applicant's explanation or for imposing the particular penalty of 10% cut in pension for three years.

Lastly, learned Counsel for the applicant submits that the punishment imposed upon the applicant is grossly disproportionate, particularly considering his long and otherwise satisfactory service and the nature of the allegation. It is contended that similarly situated officers involved in the same matter were either given only a warning or subjected to a minor penalty, whereas the applicant has been visited with a substantial cut in pension after retirement. On these grounds, learned Counsel seeks quashing of the impugned punishment order and consequential reliefs.

It is further submitted that the applicant was supplied the relevant documents and was also given an opportunity to inspect the original records and cross-examine the prosecution witnesses. His request for additional documents and defence witnesses was duly considered by the Inquiry Officer and declined as the same were found irrelevant to the charges. Thus, there was no violation of the principles of natural justice.

Learned Counsel submits that the statement of PW-2 relied upon by the applicant cannot be considered in isolation and that the findings against the applicant were based upon the overall documentary and oral evidence available on record. The Disciplinary Authority, after considering the Inquiry Report and the applicant's representation, issued a disagreement note and thereafter passed the impugned penalty order in accordance with the applicable rules.

It is submitted by Learned Counsel for the respondents that the charge was not with respect to the original overpayment of the period 1998–2001, but concerned the applicant's alleged dereliction of duty while posted as APFC at Ranchi during 2014–2017. The respondents also deny any deliberate delay or harassment and submit that the proceedings were conducted in accordance with the directions of the Tribunal.

Regarding the sealed-cover procedure, learned Counsel submits that vigilance clearance had not been furnished in respect of the applicant and the DPC had accordingly recommended keeping his case in sealed cover. The withholding of gratuity and leave encashment was also stated to be in accordance with the applicable rules since disciplinary proceedings were pending on the date of his superannuation.

Learned Counsel further submits that the roles of the other officers referred to by the applicant were different and, therefore, the allegation of discriminatory treatment is not sustainable. The penalty imposed was within the jurisdiction of the Disciplinary Authority and does not warrant interference in judicial review.

Lastly, learned Counsel for the respondents raises a preliminary objection that the applicant has not exhausted the available statutory remedy of appeal against the penalty order before approaching the Tribunal. On these grounds, learned Counsel submits that the OA is devoid of merit and liable to be dismissed.

In order to examine this, it will be prudent to reproduce the whole penalty order ad verbatim to examine the allegation of the applicant that this is a non-reasoned order with no application of mind by the Disciplinary Authority.

I have carefully perused the impugned order that is being reproduced below to have a correct perspective.

By no stretch of imagination this penalty order that has been filed along with the Original Application of the Applicant as ANNEXURE-18 could be termed as a reasoned order. All the sentences in this order are nothing but narration of sequence of procedure of framing the charge and conduct of proceedings. The only sentence reflecting the opinion of the Disciplinary Authority is confined to one line that is “The undersigned considered the representation as devoid of merit.” The defence submitted by the applicant against the disagreement note that is very exhaustive raising a large number of contentions for consideration and runs into thirty-six typed pages kept as Annexure-17 of the O.A. did not deserve to be discarded with such disdain in one line. It required proper consideration before a decision was ultimately taken in whatever manner the Disciplinary authority deemed fit. This is a classic example of violation of the principle of natural justice. No person should be condemned unheard.

It is an admitted position that the relevant records relied upon by the respondents were quite old and were admittedly in a debilitated condition. Though the applicant was permitted to inspect the original records, mere inspection of records which were admittedly in such condition cannot, in the facts of the present case, be treated as sufficient compliance with the requirement of furnishing legible and usable documents, particularly when the applicant had consistently raised such objection during the inquiry.

This Tribunal also finds that the applicant had sought examination of certain defence witnesses and production of additional documents in support of his defence. The said request was declined by the Inquiry Officer on the ground that the documents and witnesses were not relevant. However, considering the nature of the charges, particularly Articles I to III relating to the preparation/compilation of the alleged dummy accounts and the applicant's role therein, the request could not have been rejected in a mechanical manner. The applicant was entitled to an effective opportunity to establish his defence and to demonstrate the relevance of the proposed evidence.

It is further significant that the Inquiry Officer had held Articles I, II and III of the charge memorandum as not proved. The Disciplinary Authority thereafter disagreed with the findings of the Inquiry Officer in respect of Articles I and III. Such disagreement necessarily required proper consideration of the defence raised by the applicant and the material available on record. The applicant had submitted a detailed representation against the disagreement note; however, the impugned punishment order does not deal at all with the material contentions raised therein.

This Tribunal further finds that the impugned order does not disclose adequate reasons for arriving at the conclusion that the applicant's explanation was unacceptable or for imposing the particular punishment of 10% cut in pension for three years. In particular, the order does not also adequately demonstrate the basis for the quantum of punishment, including the extent of the alleged loss or financial consequence attributable to the applicant's conduct. A reasoned order was required, particularly when the applicant had specifically disputed his responsibility and relied upon the evidence recorded during the inquiry.

The fact that the applicant had himself brought the issue of overpayment to the notice of the authorities through his earlier communications was also a material circumstance which required due consideration while examining his defence. Further, the statement of PW-2 relied upon by the applicant, wherein the witness stated that no irregularity had been committed by the applicant in preparation of the dummy accounts, could not have been brushed aside merely by observing that it was inconsistent with the other evidence, without indicating the specific evidence which outweighed such testimony.

In the totality of the circumstances, I am of the considered view that the disciplinary process culminating in the impugned punishment order has not afforded the applicant a fair and effective opportunity of defence, and the impugned punishment order also suffers from want of adequate reasons. The defects noticed above go to the root of the decision-making process and have caused prejudice to the applicant. This can be amply demonstrated by the perusal of the penalty order that contains only one line of the opinion of the Disciplinary authority that reads as follows: “The undersigned considered the representation as devoid of merit.” Accordingly, the impugned punishment order dated 22.08.2024 cannot be sustained.

In view of the foregoing discussion, the Original Application is allowed in following terms :-

The impugned punishment order dated 22.08.2024, whereby a penalty of 10% cut in pension for a period of three years was imposed upon the applicant, is hereby quashed and set aside.

Consequently, the respondents shall restore the applicant's pension without giving effect to the aforesaid penalty and release the consequential arrears, if any, in accordance with law.

The respondents shall also reconsider the applicant's claim for interest on delayed payment of gratuity in accordance with the applicable rules and pass an appropriate reasoned and speaking order within a period of three months from the date of receipt of a copy of this order. So far as interest on delayed payment of leave encashment is concerned the respondents will decide as per the applicable leave rules in this regard.

The consequential monetary benefits arising out of setting aside of the impugned penalty shall be released to the applicant within the aforesaid period.