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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)To quash order No. 14/45/2010-Pers.9-Vol-IV-6807 dated 31 March 2022 passed by Special Secretary (Pers), Cabinet Secretariat(R & AW), Govt. Of India, New Delhi, by virtue of which punishment of applicant Avtar Krishan Bhat, FO (GD) is reduced to the lower post of DFO (GD) for a period of 3 years, he will be eligible for promotion to the rank of FO (GD) after expiry of this period subject to him being found fit by the DPC. He shall draw a pay of Rs 44900/- w.e.f. 24-11-2021 and shall earn increments during the currency of the penalty. Further, on his re promotion, he shall not re gain his original seniority in the rank of FO (GD) which was assigned to him prior to imposition of penalty.
b)To quash order No.127/3/2020-JAM (Estt)-14883 dated 24/11/2021 passed by Commissioner (NZ), Jammu by virtue of which Nonapplicant no 4 being the Disciplinary Authority and in exercise of the powers vested under the provisions mentioned, hereby order that the applicant FO(GD) is reduced to the lower post of DFO(GD) and shall draw pay of Rs.44,900/- in level 7 of pay matrix of CCS (revised pay) rules, 2016 from the date of issue of this order.
c)To direct the respondent no.2 to consider the case of the applicant afresh and give all consequential benefits which include regular promotion as well as MACP w.e.f. 08.10.2020 and further promotion as per the service rules applicable from time to time.
d)Any other relief befitting the occasion may please be allowed in favour of the applicant and against the respondents.
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The case of the applicant, as projected in the Original Application, is that he initially joined the Research & Analysis Wing as Deputy Field Officer (GD) and, after serving at different places, was promoted as Field Officer (GD) on 08.10.2010. The applicant married Smt. Neetu Koul on 28.01.2007 and a son was born from the wedlock on 28.03.2008. Subsequently, matrimonial disputes arose between them, resulting in various proceedings, including divorce, maintenance and criminal proceedings. The matrimonial dispute ultimately culminated in dissolution of the marriage by mutual consent in March, 2018.
According to the applicant, during the pendency of the matrimonial litigation, his estranged wife made several complaints against him to the respondent-department. The applicant was posted at Headquarters, New Delhi from August, 2011 to August, 2016. He alleges that during this period his estranged wife repeatedly approached departmental authorities and that discreet/internal inquiries were conducted into his personal affairs. The applicant claims that despite his communications dated 23.12.2013, 03.02.2014 and 03.03.2014 seeking copies of the complaints, the same were not supplied to him. He also objected to the manner in which such inquiries were being conducted and addressed communications to the departmental authorities in that regard.
The applicant further states that departmental scrutiny continued on allegations concerning his relationship with Smt. Kalpana Qasba. According to him, the inquiries conducted at Jammu, New Delhi and other places were intrusive and were actuated by the complaints made by his estranged wife. He maintains that Smt. Kalpana Qasba was a long-standing family friend and disputes the allegation that he had maintained an illicit relationship with her during subsistence of his first marriage.
The applicant’s first marriage was eventually dissolved by mutual consent and thereafter, on 19.04.2018, he married Smt. Kalpana Qasba at Arya Samaj Mandir, Janipur Colony, Jammu. The marriage was subsequently registered with the Marriage Registrar, Tehsildar Jammu North on 29.06.2018. The applicant states that he intimated the department regarding his remarriage and furnished the revised family particulars vide communication dated 08.05.2018 for incorporation in his service record.
Thereafter, Memorandum No. 14/45/2010-Pers.9-Vol.II dated 12.09.2018 was issued proposing a departmental inquiry against the applicant under Rule 14 of the CCS (CCA) Rules, 1965. The memorandum contained the article of charge, statement of imputations and other connected material. The applicant submitted his written statement of defence on 30.09.2018 denying the allegations. An Inquiry Officer and Presenting Officer were thereafter appointed for conducting the departmental proceedings.
The inquiry commenced at Jodhpur and the applicant participated therein. During the course of proceedings, there was a change of Inquiry Officer and Shri Naveen Kapur, Deputy Commissioner, SB Jodhpur, came to be appointed as Inquiry Officer. Several hearings were held during 2019 and 2020 and the applicant submitted his defence. The hearings were ultimately concluded on 28/29.02.2020.
Upon conclusion of the said inquiry, the Inquiry Officer submitted his report, a copy whereof was forwarded to the applicant vide memorandum dated 27.05.2020 with an opportunity to make a representation. The applicant submitted his detailed representation dated 21.06.2020 disputing the findings and asserting that material evidence produced by him had not been properly appreciated.
Subsequently, the applicant was transferred to the Srinagar Sector. He was informed vide memorandum dated 22.10.2020 that certain infirmities/irregularities had been noticed in the earlier inquiry report and further inquiry was to be conducted in respect thereof. A fresh Inquiry Officer and Presenting Officer were appointed. After another change of Inquiry Officer, Shri Sarvesh Raj, Deputy Commissioner, Srinagar, was appointed as Inquiry Officer. The applicant submitted his defence on 05.02.2021, participated in the proceedings and the Inquiry Officer ultimately submitted his report dated 10.08.2021.
The said inquiry report was forwarded to the applicant vide memorandum dated 24.09.2021 and he was afforded an opportunity to submit a representation. The applicant submitted his representation dated 03.10.2021. Thereafter, the Commissioner (NZ), Jammu, acting as the Disciplinary Authority, passed order dated 24.11.2021 holding the charges proved and imposed the major penalty of reduction of the applicant from the post of FO (GD) to the lower post of DFO (GD), fixing his pay at Rs.44,900/- in Level-7 of the Pay Matrix.
Aggrieved, the applicant initially preferred an appeal dated 19.12.2021 before the Secretary (R). He was subsequently informed that the appeal had been addressed to the wrong authority. Accordingly, he preferred a fresh appeal dated 03.02.2022 before the competent Appellate Authority. By order dated 31.03.2022, the Appellate Authority modified the penalty by directing that the reduction to the lower post of DFO (GD) would operate for a period of three years; thereafter, the applicant would be eligible for promotion to FO (GD), subject to fitness by the DPC. His pay was maintained at Rs.44,900/-with entitlement to increments during the currency of the penalty, with the further stipulation that upon re-promotion he would not regain his original seniority in the rank of FO (GD).
The applicant has challenged the disciplinary as well as appellate orders principally on the grounds that the inquiry was conducted contrary to the prescribed procedure and principles of natural justice; material witnesses were not examined and documents were not duly proved; relevant defence material was ignored; the subsequent/further inquiry travelled beyond the permissible scope; and the authority imposing the major penalty was allegedly not competent to do so. He further contends that the findings are unsupported by legally admissible evidence and that the punishment imposed upon him is disproportionate.
The applicant has accordingly sought quashing of the orders dated 24.11.2021 and 31.03.2022 and restoration of consequential service benefits, including consideration for MACP with effect from 08.10.2020 and other promotional benefits.
The respondents have filed their written statement wherein they have averred as follows: -
On merits, the respondents admit that matrimonial disputes existed between the applicant and Smt. Neetu Koul but deny the allegations of mala fides or unauthorized access being afforded to her. According to them, during the matrimonial dispute, the department received legal notices, RTI applications and various complaints from Smt. Neetu Koul, including allegations regarding harassment and the applicant’s relationship with another woman. They state that such communications were dealt with in accordance with the applicable procedure. They further point out that the organisation is exempt from disclosure requirements under Section 24(1) read with the Second Schedule to the RTI Act, 2005, subject to the statutory exceptions, and therefore certain information sought by the parties was not disclosed.
The respondents submit that an internal inquiry is only a preliminary exercise intended to assist the competent authority in determining whether prima facie material exists warranting disciplinary action. They state that further complaints were received through governmental channels, including a complaint forwarded through the PMO in 2017, which led to verification of the allegations.
According to the respondents, the inquiry revealed material suggesting that the applicant had travelled with Smt. Kalpana Qasba from Delhi to Godhra on 18.08.2016, had transferred money into her bank account on several occasions and was in regular telephonic contact with her. The respondents further rely upon information regarding Master Kushan Bhat, born on 08.02.2016, whose birth certificate allegedly recorded the father's name as “A.K. Bhat”, the mother's name as Kalpana Qasba and an address corresponding to the applicant's recorded residential address. They also refer to the leave availed by the applicant around the period of the child's birth and certain alleged inconsistencies concerning the reasons for such leave. On the basis of the material collected, disciplinary proceedings were initiated through the charge memorandum dated 12.09.2018.
The respondents state that the applicant submitted his written defence denying the charges and was afforded full opportunity to participate in the departmental inquiry. An Inquiry Officer and Presenting Officer were appointed and the inquiry was conducted. However, according to the respondents, certain material evidence had been overlooked in the first inquiry report and infirmities were noticed by the Disciplinary Authority. Since the applicant had meanwhile been transferred to Jammu Sector and thereafter posted at Srinagar, another Inquiry Officer was appointed to inquire into the identified infirmities.
As regards competence of the Disciplinary Authority, the respondents submit that the matter was initially dealt with at Headquarters by the Joint Secretary (Pers) because the post of Commissioner (NZ), Jammu was not occupied. Upon the Commissioner (NZ), Jammu taking charge, the disciplinary case was transferred to him and, according to the respondents, he was the competent Disciplinary Authority under the applicable statutory rules. The final Inquiry Officer held the charges proved. The Disciplinary Authority, after considering the inquiry report, evidence/material on record and the applicant's representation, concluded that the misconduct stood substantiated and imposed the penalty of reduction to DFO (GD) by order dated 24.11.2021.
The respondents further submit that although the applicant initially addressed his appeal dated 19.12.2021 to the Secretary (R), the competent Appellate Authority for the relevant Group-B non-gazetted post was the Additional Secretary (Pers)/Special Secretary in charge of the Personnel Division, as applicable. The subsequent appeal dated 03.02.2022 was entertained after condonation of delay in the interest of justice. Upon consideration of the entire matter, the Appellate Authority modified the penalty by order dated 31.03.2022, limiting the reduction to the lower post to three years and permitting consideration for re-promotion thereafter subject to fitness by the DPC, while maintaining the other conditions stipulated in the order.
With regard to the applicant's revised family particulars, the respondents state that the same had been kept pending during the disciplinary proceedings. After conclusion thereof, Smt. Kalpana Qasba and Master Kushan Bhat were accepted as members of the applicant's family vide communication dated 18.01.2022. His claims towards Children Education Allowance for the academic years 2020-21 and 2021-22 were thereafter processed for payment. The necessary changes in the welfare records were also stated to have been made.
The respondents thus maintain that the departmental proceedings were conducted in accordance with the CCS (CCA) Rules, 1965; the applicant was afforded adequate opportunity of defence; his representations were duly considered by the Inquiry Officer, Disciplinary Authority and Appellate Authority; and the final orders are reasoned and legally sustainable. They accordingly seek dismissal of the Original Application.
The applicant has filed the rejoinder to the written statement filed by the respondents wherein they have averred as follows: -
In rejoinder, the applicant has reiterated his challenge to the disciplinary proceedings and controverted the stand taken by the respondents. He submits that the respondents themselves acknowledge receipt of several complaints from his former wife, including the complaint forwarded through the PMO in 2017. According to him, despite repeated requests made in 2013 and 2014, copies of such complaints were never supplied. He maintains that the discreet inquiries conducted at Jammu and New Delhi adversely affected his reputation and that the subsequent departmental proceedings were the continuation of the alleged harassment initiated at the instance of his former wife.
b)Regarding the money transferred to Smt. Kalpana Qasba, the applicant admits that certain transfers were made but explains that these represented repayment of friendly loans obtained by him from Smt. Kalpana and her relatives during the pendency of his matrimonial litigation. He states that his bank statements were produced before the Inquiry Officer in support of this explanation and contends that the transfers by themselves could not establish an illicit relationship.
c)The applicant also disputes the respondents' allegation that he had procured a mobile number exclusively for communicating with Smt. Kalpana. According to him, the number in question has been continuously used by him since 2016 and is linked to his bank accounts and various official identity documents. He asserts that no documentary evidence was produced during the inquiry to establish that the number had been obtained exclusively for communicating with Smt. Kalpana.
d)As regards the birth of Master Kushan Bhat on 08.02.2016 and the reference to “A.K. Bhat” in the birth/hospital records, the applicant contends that the initials do not establish that he was the father of the child. He states that he was suffering from an ankle injury during the relevant period and had produced medical records in support thereof. He further relies upon the written statement of Smt. Kalpana, allegedly taken on record during the inquiry, wherein she stated that the particulars in the hospital and birth records had been furnished by her in an emergency and in the applicant's absence.
e)The applicant further contends that the disciplinary proceedings were initiated only after his marriage with Smt. Kalpana and after he submitted revised family particulars to the department. He questions why the revised family details remained pending until January, 2022 despite having been submitted in 2018, and reiterates his allegation that the proceedings were actuated by mala fides.
f)A principal objection raised in the rejoinder relates to the manner in which the inquiry was reopened/further conducted. The applicant submits that when the first Inquiry Officer's report was forwarded to him on 27.05.2020, he was not furnished with the Disciplinary Authority's note of disagreement or the specific infirmities noticed therein. He further alleges that an earlier report prepared by the subsequent Inquiry Officer around April/May, 2021 was never furnished to him and that only the final report dated 10.08.2021 was relied upon for imposing the punishment. On this basis, he alleges violation of the prescribed disciplinary procedure and denial of an effective opportunity of defence.
g)The applicant also reiterates his objection regarding the competence of the Commissioner (NZ), Jammu to impose the major penalty. According to him, the Joint Secretary (Pers) was his appointing/disciplinary authority and the Commissioner (NZ), Jammu, being subordinate thereto, could not lawfully impose a major penalty upon him. He further alleges that he was not properly informed of the change of Disciplinary Authority. The applicant therefore contends that the penalty order dated 24.11.2021 is without jurisdiction and that the subsequent modification by the Appellate Authority cannot cure the alleged foundational defect.
h)The applicant further disputes the respondents' observations concerning his marriage with Smt. Kalpana. He states that their marriage was solemnized on 19.04.2018 at Arya Samaj Mandir, Janipur Colony, Jammu and subsequently registered with the competent Marriage Registrar, Tehsildar Jammu North on 29.06.2018. According to him, both certificates were produced during the departmental proceedings and could have been independently verified from the concerned authorities instead of being treated as dubious.
i)On these premises, the applicant reiterates that the disciplinary inquiry and consequential penalty are unsustainable and seeks restoration of the rank, position and seniority held by him prior to imposition of the penalty, besides MACP benefits claimed with effect from 08.10.2020 and consequential promotional, financial and administrative benefits.
We have heard learned counsel for the parties and carefully perused the pleadings and material available on record. The principal question which arises for consideration is whether the departmental proceedings culminating in the penalty order dated 24.11.2021, as modified by the Appellate Authority vide order dated 31.03.2022, suffer from any such illegality, procedural irregularity or violation of principles of natural justice as would warrant interference by this Tribunal.
At the outset, it is necessary to observe that the scope of judicial review in disciplinary proceedings is limited. The Tribunal does not sit as an appellate authority over the findings recorded in a departmental inquiry and cannot re-appreciate the evidence merely to substitute its own conclusion for that of the competent departmental authorities. Interference is warranted where the inquiry is shown to have been conducted in violation of the prescribed procedure or principles of natural justice, where the findings are based on no evidence, where the authority lacks jurisdiction, or where the punishment suffers from a legally cognizable infirmity. The sufficiency or adequacy of evidence, however, is ordinarily within the domain of the disciplinary authority.
Tested on the aforesaid parameters, we do not find sufficient ground for interference in the present case. The record reveals that the disciplinary proceedings were not initiated merely on the basis of an unverified allegation. The respondents had received complaints concerning the conduct of the applicant and undertook verification thereof. The material referred to by the respondents included the applicant’s association with Smt. Kalpana Qasba during subsistence of his first marriage, his travel with her, financial transactions between them, the particulars appearing in the birth records of Master Kushan Bhat, the residential address reflected therein, the leave availed by the applicant around the time of the child’s birth, and other material gathered during departmental verification. It was on consideration of such material that formal disciplinary proceedings were initiated by issuance of the charge memorandum dated 12.09.2018.
The record further demonstrates that the applicant was not condemned unheard. He submitted his written statement of defence denying the charges and thereafter participated in the inquiry proceedings. The hearings continued over a substantial period. The applicant was afforded opportunity to put forth his defence and to produce material in support thereof. The proceedings before the first Inquiry Officer were ultimately concluded on 28/29.02.2020, whereafter the inquiry report was supplied to the applicant vide memorandum dated 27.05.2020 and he submitted his detailed representation dated 21.06.2020.
It is true that certain infirmities were subsequently noticed in the earlier inquiry report and further inquiry was undertaken. However, the mere fact that the competent authority did not accept the earlier report as conclusive cannot, by itself, render the subsequent proceedings illegal. The respondents have specifically pleaded that certain material evidence had been overlooked in the earlier report and, upon transfer of the applicant to another sector, a new Inquiry Officer was appointed to inquire into those infirmities. The applicant was again permitted to participate in those proceedings. He submitted his defence on 05.02.2021, attended the proceedings and the Inquiry Officer thereafter submitted the final report dated 10.08.2021.
Significantly, the final inquiry report was also supplied to the applicant vide memorandum dated 24.09.2021 and he was expressly granted an opportunity to submit his representation against it. The applicant admittedly availed such opportunity and submitted his representation dated 03.10.2021. It was thereafter that the Disciplinary Authority passed the order dated 24.11.2021. Thus, the material on record does not establish that the applicant was denied an effective opportunity to defend himself before imposition of the penalty.
Much emphasis has been placed by the applicant upon the contention that the charges were founded upon conjectures and that the circumstances relied upon by the respondents were capable of a different explanation. In the rejoinder, the applicant has explained that the money transferred to Smt. Kalpana Qasba represented repayment of friendly loans; that the mobile number referred to by the respondents was his regular number and not one procured exclusively for communicating with her; and that the reference to “A.K. Bhat” in the birth and hospital records of Master Kushan Bhat could not conclusively be attributed to him.
These explanations constitute the defence of the applicant to the charge. The question before this Tribunal, however, is not whether another inference could possibly have been drawn from the material, but whether the departmental finding is wholly unsupported by material on record. The respondents relied upon a combination of circumstances and documentary material and the final Inquiry Officer found the charges proved. The Disciplinary Authority thereafter considered the inquiry report, the material available on record and the applicant’s representation before concluding that the misconduct stood substantiated. In such circumstances, the case cannot be characterized as one of “no evidence” merely because the applicant disputes the inference drawn by the departmental authorities.
The subsequent acceptance by the department of Smt. Kalpana Qasba and Master Kushan Bhat as members of the applicant’s family also does not, by itself, nullify the disciplinary proceedings. The respondents have explained that the revised family particulars were kept pending during the disciplinary proceedings and, after conclusion thereof, the names were accepted vide communication dated 18.01.2022, whereafter the applicant’s Children Education Allowance claims were processed. Recognition of the family particulars at a subsequent stage cannot retrospectively erase the conduct which formed the subject matter of the disciplinary inquiry concerning the earlier period.
The plea of the applicant regarding incompetence of the Commissioner (NZ), Jammu to act as the Disciplinary Authority has also been specifically controverted. The respondents have explained that the matter was initially dealt with at Headquarters by the Joint Secretary (Pers) because there was no incumbent holding the position of Commissioner (NZ), Jammu and that, upon the Commissioner assuming charge, the disciplinary case was transferred to him, he being the Disciplinary Authority under the applicable statutory arrangement. Except asserting that the Commissioner was subordinate to his appointing authority, the applicant has not demonstrated from the material placed before us that the statutory scheme applicable to his post prohibited the Commissioner (NZ), Jammu from exercising disciplinary jurisdiction in the manner pleaded by the respondents. We are, therefore, unable to accept the contention that the penalty order is liable to be declared void solely on this ground.
The applicant was also afforded a statutory appellate remedy. Though the appeal dated 19.12.2021 was initially addressed to the Secretary (R), he was informed about the competent Appellate Authority and thereafter submitted his appeal dated 03.02.2022. Even though the latter appeal was beyond the prescribed period when considered independently, the delay was condoned in the interest of justice and the appeal was considered on merits. This circumstance further demonstrates that the applicant was afforded an opportunity to have the disciplinary decision examined at the departmental appellate stage.
More importantly, the Appellate Authority did not mechanically affirm the original punishment. Upon examining the matter, it modified the penalty imposed by the Disciplinary Authority. The original order reducing the applicant to DFO (GD) was modified so that the reduction would operate for a period of three years, after which the applicant would become eligible for promotion to FO (GD), subject to being found fit by the DPC. The applicant was also permitted to earn increments during the currency of the penalty. The modification itself indicates application of mind by the Appellate Authority to the nature and duration of the penalty.
The plea of mala fides raised by the applicant also does not persuade us to interfere. The fact that the proceedings had their genesis in complaints made by the applicant’s former wife would not, without more, establish that the disciplinary proceedings themselves were malicious. What assumes significance is whether the department independently examined the allegations, whether relevant material was gathered and whether the applicant was afforded an opportunity to answer the same. The record before us shows that a formal charge-sheet was issued, Inquiry Officers and Presenting Officers were appointed, the applicant participated in the proceedings over a considerable period, inquiry reports were prepared, representations were invited and considered, and thereafter the disciplinary as well as appellate authorities passed orders. The allegation of mala fides, therefore, is not established merely from the origin of the complaints.
The applicant has also questioned the evidentiary value of the material relied upon during the inquiry and has contended that witnesses were not examined and documents were not formally proved in the manner contemplated in ordinary judicial proceedings. Departmental proceedings, however, are distinct from criminal trials, and the present challenge has to be examined primarily from the standpoint of fairness of the procedure and existence of material capable of supporting the departmental conclusion. In the present case, the applicant was aware of the allegations, participated in the inquiry, submitted detailed defences and representations and placed his own material before the Inquiry Officer. We find no material demonstrating such prejudice or denial of reasonable opportunity as would vitiate the entire proceedings.
It is equally important that the Tribunal should not convert proceedings for judicial review into a fresh departmental inquiry. The applicant seeks, in substance, a re-evaluation of individual circumstances such as the purpose of financial transfers, use of the mobile number, the particulars appearing in the child’s records, the reasons for leave and the evidentiary worth of the material collected during verification. These matters were within the province of the Inquiry Officer and the competent departmental authorities. Once there exists material on the basis of which the disciplinary authority could reasonably arrive at its conclusion, this Tribunal would not substitute its own appreciation merely because another view may also be possible.
As regards proportionality, the misconduct was treated by the department as serious, particularly having regard to the nature of the respondent-organisation and the standards of discipline expected from its personnel. The original penalty was, in fact, moderated in appeal by limiting the reduction to the lower post to three years and preserving the applicant’s entitlement to increments during the currency of the penalty, with eligibility for consideration for re-promotion thereafter subject to fitness by the DPC. In the facts placed before us, we do not find a ground warranting substitution of the penalty by this Tribunal.
Viewed cumulatively, therefore, the material on record establishes that the charges against the applicant were subjected to departmental inquiry; the applicant was repeatedly afforded opportunity to participate and place his defence; the final inquiry report was supplied to him; his representation was considered before imposition of punishment; and his statutory appeal was entertained and resulted in modification of the original penalty. The findings cannot be said to be based on no material, nor has the applicant established any procedural defect causing such prejudice as would render the entire disciplinary action void.
Consequently, we find no legally sustainable ground to interfere either with the penalty order dated 24.11.2021 or with the appellate order dated 31.03.2022. The consequential claims of the applicant for restoration of his earlier rank and seniority, MACP from 08.10.2020 and other promotional, financial and administrative benefits founded upon the proposed setting aside of the disciplinary punishment also cannot be granted.
In view of the foregoing discussion, the Original Application is found to be devoid of merit and is accordingly dismissed. The order dated 24.11.2021 passed by the Disciplinary Authority, as modified by the Appellate Authority vide order dated 31.03.2022, shall remain undisturbed.
There shall be no order as to costs. All pending M.A(s), if any, shall also stand disposed of.