B S Ashok Kumar Vs Union of India

B. S. ASHOK KUMAR, S/O SRI. SUKUMAR, AGED ABOUT 44 YEARS, C/O SMT. N. S. PREMALEELA, W/O LATE N. SRINIVASA MURTHY, NO.374, 6/2, FIRST FLOOR, EAST CIRCLE ROAD, V.V.PURAM, BANGALORE - 560 004.

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…PETITIONER

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(BY SRI. MITTY NARASIMHA MURTHY, ADVOCATE)

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AND:

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Digitally Signed by REKHA R Location : High Court of Karnataka

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UNION OF INDIA, TO BE REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF INDIA, NEW DELHI - 110 001.

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THE DIRECTOR, NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES, HOSUR ROAD/MARIGOWDA ROAD, LAKKASANDRA, WILSON GARDEN, BANGALORE – 560 029.

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THE REGISTRAR, NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES, HOSUR ROAD/MARIGOWDA ROAD, LAKKASANDRA, WILSON GARDEN, BANGALORE – 560 029.

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…RESPONDENTS

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(BY SMT. ANUPAMA HEGDE, CGC FOR R1; SRI. PRABHAKAR RAO, CGC FOR R2 & R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES OF 225 AND 226 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE THE WRIT IN THE NATURE OF CERTIORARI OR MANDAMUS TO THE RESPONDENTS TO QUASH THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH IN ORIGINAL APPLICATION No.170/00428/2022 DATED 20.11.2024 AND CONSEQUENTLY TO QUASH ORDER No.NIMH/HOS/EST-2/BSAK/2021-22 DATED 12.11.2021 PASSED BY THE SECOND RESPONDENT AND TO QUASH THE ORDER No.NIMH/HOS/EST/BSAK/E818/2019-2020 DATED 31.12.2019 PASSED BY THE THIRD RESPONDENT, AND TO REINSTATE THE PETITIONER INTO HIS SERVICE AND TO AWARD BACK WAGES FROM THE DATE OF COMPULSORY RETIREMENT TILL DATE OF REINSTATEMENT, WITH CONTINUITY OF SERVICE, WITH INTEREST @ 15% PER ANNUM, WITH CONSEQUENTLY BENEFITS IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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This petition, under Articles 225 and 226 of the Constitution of India by the unsuccessful applicant, calling in question the order dated 20.11.2024 in O.A.No.170/00428/2022, passed by the Central Administrative Tribunal, Bangalore Bench (hereinafter referred to as 'the Tribunal' ). The Tribunal by the order impugned dismissed the application.

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The parties are referred to as per their ranking before the Tribunal.

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A brief factual matrix leading to filing of

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this present petition are as under;

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The applicant joined service with second respondent-NIMHANS on 12.11.2007 as a Hospital/Officer Assistant on compassionate grounds. On 06.10.2018, he was issued charge sheet under Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964. As the applicant has not pleaded guilty to the charges

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levelled against him, the enquiry commenced. As per the applicant, he was not permitted to engage an outsider as his Defence Assistant, as such, he did not attend the further proceedings before the enquiry officer, which went ex-parte .

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After the completion of the enquiry, the

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enquiry officer submitted a report holding that the charges leveled against the applicant stands proved.

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A second show-cause notice was issued to

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the applicant, to which he has given his reply denying the findings of the Enquiry Officer. The Disciplinary Authority, not being satisfied with the reply, passed an order of compulsory retirement on 31.12.2019. Feeling aggrieved, the applicant preferred an appeal under Rule 25 of the Central Civil Services (CCA Rules), 1965, before the Appellate Authority.

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Vide Order dated 31.07.2021, the

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Appellate Authority dismissed the appeal, thereby confirming the order passed by the Disciplinary

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Authority. Aggrieved by the order of compulsory retirement, as well as the Appellate Authority's order confirming it, the applicant preferred an application before the Tribunal in Application

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No.170/00428/2022.

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Before the Tribunal, the applicant has contended that the charges framed in the Charge Memo dated 06.10.2018 are the very same charges which were framed against him on an earlier point of time, which had resulted in his compulsory retirement. The earlier order of compulsory retirement

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was recalled, and he was reinstated based on his assurance that he shall not repeat the misconduct in the future. The charges now leveled against him are the very same set of charges, amounts to Double Jeopardy and against Article 20(2) of the Constitution of India.

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Further it was contended that the charges

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framed do not amount to misconduct. Additionally,

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the applicant argued that he was not familiar with English. All memos, notices, charge sheets, statements in the departmental enquiry proceedings, and the enquiry report, etc., were in English, which failed him to contest the case effectively put-forthing his defence. The same amounts to denial of proper opportunity under law. The punishment of compulsory retirement imposed on the applicant is disproportionate to the charges framed against him. Finally, he has contended that the Enquiry Officer did not permit him to engage a Defence Assistant of his choice which had occasioned his absence and entire enquiry went on ex-parte. As such the entire enquiry is vitiated on doctrine of violation of Principles of Natural Justice.

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He has further stated that this aspect of the matter had not been taken cognizance by the Appellate Authority. As such, the application must be allowed, setting aside the orders passed by the

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Disciplinary Authority as well as the Appellate Authority confirming the same. Further, sought a direction against the respondent authorities to reinstate the applicant with all consequential benefits.

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On service of notice, the contesting respondent appeared through its counsel and submitted that all mandatory rules under service law were duly followed by the respondents in holding the enquiry proceedings.

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The respondent authority submitted that, the contention of the applicant regarding nonpermission to engage a Defence Assistant of his choice is required to be negatived, in the absence of any Rules to that effect. As per the Rules, a delinquent can have assistance of an employee or ex-employees of the Institute and not an outsider. The conduct of the applicant was improper as he walked out in the midst of enquiry without there being any valid reason and not participated in the

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enquiry thereafter. Even the applicant has not signed the proceedings of the enquiry. Having left with no other alternative, the Enquiry Officer conducted the entire enquiry ex-parte .

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It is further stated that, it is not the case

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of the applicant that he was deliberately placed ex-parte . The applicant absented himself by walking out from the enquiry deliberately and did not participated thereafter. Total eight witnesses have been examined before the Enquiry Officer, besides producing relevant documents to substantiate the charges invoked against the applicant. The Enquiry Officer, after going through the entire evidence placed on record, both ocular and documentary, concluded the enquiry, holding that the charges leveled against the applicant stand proved, forwarded the same to the Registrar of the Institute.

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The Disciplinary Authority after receipt of report issued second show cause notice along with

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copy of the enquiry report on the applicant. The applicant submitted his reply to the second showcause notice. The Disciplinary Authority, after applying its mind to the entire material, including reply to the second show cause notice passed an order of Compulsory Retirement.

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The applicant preferred an appeal belatedly by 578 days, even the explanation offered for the delay were not befitted with the expression sufficient cause. The Appellate Authority, after analyzing the matter, found that there is no mitigating circumstances to award a lesser punishment than the one awarded by the Disciplinary Authority and both on delay as well as, on merits dismissed the application.

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To buttress the argument, the contesting respondent relied on the judgments in the case of State of Gujarat Vs. Umedbhai M. Patel¹ and

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1 2025 SCC Online Guj 4277

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Captain Pramod Kumar Bajaj Vs. Union of India

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and Another² .

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Upon hearing the parties, the Tribunal, after going through the entire material, passed the impugned order herein, dismissing the application subscribing its reasons in paragraph Nos.8 to 12. In the backdrop of reasons stated in Paragraph No.8 to 12, the Tribunal made an observation in Paragraph No.13, that the NIMHANS is the premier institution of national importance, renowned as a centre for mental health and neuroscience. The applicant, working in such an esteemed institution providing health-related services, is expected to maintain utmost discipline, which is ‘ sine qua non’ . The habitual unauthorized absence and misbehavior would certainly affect patient care. Since the patient care is pivotal, it prevails over the private interest.

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2 2023 11 SCC 466

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The Tribunal further taking cognizance of the conduct of unruly behavior of walking out amid the enquiry and his subsequent absenteeism declined to consider the contention put forth by the applicant complaining enquiry conducted ex-parte, holding the same as unsustainable. The applicant remaining absent from enquiry proceedings and walked out without any reasons and thereafter cannot now complain that the enquiry conducted ex-parte is unsustainable.

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So far as the contention regarding the applicant not familiar with English, the Tribunal held that the same cannot be countenanced as the applicant has given his reply to the second showcause notice in the English language, manifestly shows that he has understood the entire proceedings. The Tribunal following the judgment of the Hon'ble Apex Court in the case of B.C.Chaturvedi Vs. Union

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of India and Ors,³ concluded that with the limited jurisdiction of judicial review, the Tribunal cannot revisit and substitute its own conclusion in respect of the penalty imposed unless and until the penalty is so disproportionate to the offence that it would shock the conscience of the Court/Tribunal or is found to be flawed for other reasons. Having come to such a conclusion, the Tribunal dismissed the application. It is this order passed by the Tribunal is called into question in this petition.

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Heard Sri.Mitty Narasimha Murthy, learned counsel appearing for the petitioner, Smt.Anupama Hegde learned CGC for respondent No.1 and Sri.Prabhakar Rao learned CGC for respondent Nos.2 and 3.

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Sri.Mitty Narasimha Murthy, reiterating

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the very same grounds, which has taken before the Tribunal, tried to impress upon us that the charge

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3 1995 (6) SCC 749

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memo dated 06.10.2018 is nothing but a replica of the charges issued in the year 2016 and as such, the same amounts to Double Jeopardy under Article 20(2) of Constitution of India. He has submitted that the principles of natural justice, i.e., ‘audi alteram partem ’, was not provided to the applicant, as such, the entire proceedings stands vitiated on this ground alone. He further contends that the applicant is not familiar with the English language and the entire proceeding was conducted in English. This clearly shows that the applicant was not given an understanding of the proceedings. In these circumstances, the entire order suffers from infirmities, which was not considered either by the Disciplinary Authority or by the Appellate Authority or even by the Tribunal.

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On these primary contentions, the learned counsel sought to allow the petition, and grant the

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relief sought in the application taking cognizance of

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the infirmities stated supra.

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Refuting the submissions of learned

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counsel appearing for the petitioner, Sri.K.Prabhakar Rao, with all vehemence, submits that the conduct of the applicant disentitles him of any relief. Earlier, when proceedings were initiated against him in 2016, resulting in compulsory retirement called off on the assurance and request of the applicant that he would correct himself and not repeat the same behavior in future, he was reinstated, considering his case sympathetically. However, subsequent to his reinstatement, it was found that there were totally eight instances and fourteen written complaints received from his workplace regarding his unauthorized absence, his misbehavior with seniors and colleagues. On several occasions, punishments were imposed upon him. The applicant has a history of punishments. During the enquiry, he had

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requested to provide a Defence Assistance of his choice, which, found to be against the Rules and was not permitted. The applicant walked out from the enquiry without signing the proceedings, in an unruly manner.

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The applicant, though aware of the enquiry proceedings, refrained from participating for the reasons best known to him. Now, he cannot complain that the enquiry is ex-parte or that he is not familiar with the English language when he has answered the second show-cause notice in English. The Tribunal, having considered all these materials, rightly dismissed the application, which does not require any interference from this Court. Accordingly, sought to dismiss the petition.

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Having heard the learned counsel for the

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parties, perused the entire writ petition papers.

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Before adverting to the factual matrix put

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forth by both learned counsel, it is apt to extract the

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charges as per Charge Memo dated 16.10.2018, which would make it easy to assess the order passed by the Tribunal, so also the orders impugned in the application. The same reads as under:

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"Article-I

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Sri.B.S.Ashok Kumar, Hospital/Office Assistant as verbally abuse the staff of Medical Records Section And Clinical Nursing Services and has broken the land line telephone in medical records Department. His misbehavior has caused lot of inconvenience to the smooth functioning of Hospital Services. Misbehavior with colleagues and senior staff and damaging property is subversive of discipline and amounts to misconduct. Thus, he has violated CCS (Conduct) Rules.

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Article-II

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Sri.B.S.Ashok Kumar, Hospital/Office Assistant has not sought prior permission from the Competent Authority while availing loan or furnishing surety. He is in the habit of not repaying loans on time. He has been served with two Court attachments since he joined this Institute. he has also being served with a show cause notice and subsequently and

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inquiry was conducted against him for charges of owing dues of Rs.26,755/- to Co-optex Showroom, Bangalore. Further, he had furnished surety to M/s.Anitha, who had availed a loan from M/s.Pooja Mahila Credit Co-operative Society, Bangalore. Since, she has failed to repay the loan amount, the official has been served with the show cause notice directing into repay the amount and clear the dues at the earliest.

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Article-III

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Sri.B.S.Ashok Kumar, Hospital/Office Assistant had been awarded the penalty of "Compulsory Retirement" with effect from 27.09.2016 for the charges of misbehavior and misconduct. Considering his request to reinstate into service, he has been re-instated into service w.e.f. 30.09.2016. In his request letter, he had assured that he would not give room for any recurrence of misbehavior and that in case he fails, the institute could initiate action against him. However, the official has not made an effort to improve his behavior. Since, 30.09.2016, 13 written complaints were received from his work places regarding his unauthorized absence and misbehavior with his seniors and colleagues."

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As per the applicant, charges No.2 and 3

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were same charges issued in the enquiry prereinstatement. The Tribunal, in Paragraph No.8 of its

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order, has clearly stated regarding the charges No.2 and 3 and comes to a conclusion that the charges issued in the enquiry pre-reinstatement and the charges now post reinstatement are not one and the same, but are different. A reading of Charge No.3 makes it lucidly clear that despite his reinstatement into service with effect from 30.09.2016, on his

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assurance that he would not give room for any recurrence of his misbehavior, failing the institute could initiate action, there is neither any improvement nor an effort to improve the same, exhibited by the applicant. Post reinstatement, there were thirteen written complaints received from his workplace regarding his unauthorized absence and misbehavior with his seniors and colleagues.

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The Disciplinary Authority, having regard to all these materials placed before it and considering the enquiry report, formed the opinion that a person with such a bad track record and history is not fit to continue in an Institution of National importance. As such a background adversely affects the interests of the Institution, as it is a service-related institute and would being disgrace to the Institution. Having considered that the interest of the Institution is pivotal which undermines the private interest passed the order of compulsory retirement. The Appellate Authority being last fact finding authority having considered the entire material placed before it dismissed the appeal both on merits as well as delay. The Tribunal in its judicial review having considered the entire material came to an irresistible conclusion that the interest of Institution demand penalty of compulsory retirement imposed as just and proper.

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In these circumstances, we are satisfied

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with the reasons stated by the Tribunal, especially in Paragraph No.11, which reflects the misbehavior and misconduct on the part of the applicant even during the enquiry, a reason apart from proof of misconduct in imposing the penalty supra as just and proper.

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The petitioner, except reiterating the very same submissions which were considered by the Tribunal in Paragraph No.8 and answered in its order, nothing is placed before us to a contrary view, against orders impugned either in the application or in the petition. We find no infirmities in the order passed by the Tribunal.

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Accordingly, the petition fails and is

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dismissed as devoid of merits.

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Although we are of the view that cases of this nature, which forced the Institution into an unwarranted legal battle before one forum after another should met with exemplary cost, however, we

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