The Union of India Vs Shri H v Krishnamurthy

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) ISSUE AN ORDER, DIRECTION, WRIT IN THE NATURE OF WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE ORDER, DIRECTION, WRIT QUASHING THE ORDER DATED 11.01.2023 ANNEXURE-A MADE IN O.A.No.170/00112/2015 PASSED BY THE HON’BLE CAT, BANGALORE AND DISMISS THE O.A.No.170/00112/2015 FILED BY THE RESPONDENT IN THE INTEREST OF JUSTICE; b) GRANT SUCH OTHER RELIEFS WHICH THIS HON’BLE COURT DEEMS IT FIT TO GRANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.

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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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The Union of India and another are before us under Articles 226 and 227 of Constitution of India in this petition calling in question the order dated 11.01.2023, passed in O.A.No.170/00112/2015 by the Central Administrative Tribunal, Bangalore Bench, Bengaluru, (‘Tribunal’ for short), allowing the application, by setting aside the order dated 21.01.2015, issued by the first respondent and allowing the application to that extent.

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The parties are referred to as per the rankings before the Tribunal.

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The factual matrix of the case are as

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follows:

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As per Applicant:

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The applicant is a retired Deputy Director, Song and Drama Division, Ministry of Information and Broadcasting. He was retired from service on

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attaining the age of superannuation on 31.12.2010. He has served in the department for three decades with unblemished service. While he was working as Deputy Director, Song and Drama Division ('S&DD' for short), Ministry of Information and Broadcasting Regional Office, Bengaluru, in the year 1998-1999, he was also discharging additional charge of S&DD, Chennai Region.

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In the year 1998, the second respondent issued an advertisement for filling up of various categories of Staff Artists including the post of Dancer (Male) vide Notification dated 09.09.1998, to all their Regions/Sub centers including Chennai and Hyderabad region.

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In response to the said advertisement, the Chennai Regional Office has received 13 applications for the post of Dancer (Male) in the office of the Deputy Director, S&DD-Chennai. After scrutiny, 9 candidates were approved and called for interview. As

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per the Cadre and Recruitment Rules, the post of Dancer is a direct recruitment post and the qualification prescribed for the said post is matriculation or equivalent to Diploma in Dance from an Institution recognized by the Government or University with minimum 2 years experience of performance on the stage as a Dancer of standing etc., subject to relaxation at the discretion of the Competent Authority in the case of candidate is otherwise well qualified.

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As stated supra, out of 13 applications

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received, 4 candidates were eligible and 4 candidates were not eligible and 5 candidates were otherwise eligible. The applicant issued call letter to 4 eligible candidates and 5 otherwise eligible candidates in all 9 candidates to appear before the selection committee. The selection committee was comprising of former Director General, Dooradarshan and one Veteran Artist from outside and also an officer from

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AIR with the Director, S&DD as the Chairman of the committee. After considering the candidature of the applicants, the committee selected one Mr.G.Satish as Dancer. He was working as a casual Artist in S&DD, Chennai, for the last 2 to 3 years. Upon selection an order of appointment came to be issued from Head Quarters, Delhi, on temporary basis.

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Aggrieved by selection of Mr.G.Satish, one Mr.Velumurgadas, filed an application in OA.No.508/1999 before the Tribunal, Madras Bench, Chennai, challenging the selection of Mr.G.Satish.

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The application was allowed, remanding the matter to the Government Authority to consider whether the qualifications are relaxable under the clause of relaxation, which is found in terms of the advertisement. In compliance of the order passed by the Tribunal stated supra, the Director being the appointing authority competent to relax educational qualification, approved on relaxing the qualification

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in the case of otherwise well qualified candidates on

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01.02.2000. Thereafter, the appointment of Mr.G.Satish was regularized on completion of probation and declared as permanent employee of S&DD.

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Vide order dated 20.06.2008, the

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appointment of Mr. G.Satish came to be terminated on the ground that the appointment has been secured by illegal means, which was the subject mater in Application bearing OA.No.409/2008. The said application was allowed by the Tribunal setting aside the order of termination.

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As things stood thus the second respondent issued a Memorandum dated 14.05.2007, calling upon the applicant to submit his explanation, in as much as entertaining the applications at S&DD, Bangalore and the direction given by the applicant to consider those applications. The applicant submitted his reply to the memorandum.

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After lapse of three years and just before six months to the retirement of applicant on superannuation, he was served with a Memorandum of Articles of charge alleging that while he was working as Deputy Director, S&DD, Chennai, has approved for sending call letters to ineligible persons including one G.Satish. The applicant has submitted his defence statement stating the circumstances under which the call letters were issued. During the inquiry, the applicant was permitted to retire on 31.12.2010 on attaining the age of superannuation.

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After lapse of one year, Inquiry Officer and Presenting Officer were appointed. The Inquiry Officer, after holding the detailed inquiry submitted his report on 28.02.2012 stating that the charges levelled against the applicant are not proved. The Disciplinary Authority not satisfied with the report again appointed one Sri.K.Ganeshan, the then Director General, Press Information Bureau as a new

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Inquiry Officer, as the said officer was reluctant to inquire into the charges, one Sri.Geetharam, Joint Secretary (Retd), Department of Pension and Pensioners' Welfare, Government of India, was appointed as Inquiry Officer to conduct a fresh inquiry. The said Inquiry Officer submitted his report on 22.03.2013 holding that the charges are not proved. The respondent No.1 not satisfied with the report, provisionally decided to disagree with the finding of the Inquiry Officer and held that the charge against the applicant has been proved. The same was communicated to the applicant to which the applicant submitted his representation on 24.07.2013 and requested to exonerate him from the charges.

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The file was then referred to UPSC for its advice by respondent No.1. The UPSC thereafter, furnished its advice vide order dated 23.05.2014, to withhold 10% of monthly pension for a period of 5

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years. The said advice was made available to the applicant, to which he has submitted his representation. The Disciplinary Authority not satisfied with the representation submitted by the applicant passed an order on 22.01.2015, imposing the penalty of withholding of 10% of the monthly pension of the applicant for a period of 5 years. Aggrieved by the order of imposition of penalty stated supra, the applicant was before the Tribunal in O.A.No.112/2015.

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The application came to be dismissed at

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the first round on the premise that withholding of 10% of monthly pension is small punishment and it was only for limited period of 5 years. Aggrieved by the order passed by the Tribunal, the applicant preferred a writ petition in WP.No.65126/2016, before this Court. This Court allowed the petition observing that the job of applicant was only sending call letters and not beyond that and the Tribunal has

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failed to consider these aspects of the matter including the finding of the inquiry report, holding that the charges against the applicant having not been proved.

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After remand, the matter was listed before the Tribunal for fresh hearing. The Tribunal, having considered the rival submissions, allowed the application stating its reasons at paragraph Nos.12, 13 and 14, holding that the order passed by the Disciplinary Authority is erroneous as there is nonconsideration of the enquiry report submitted by two enquiry officer and the disagreement reasons is not in right perspective, and in view of earlier order passed by the CAT in Madras Bench, Chennai in OA.No.508/1999 comes to the conclusion that merely on surmises and conjectures no employee could be punished. The Tribunal further observed that it is well settled legal principles that truth is invincible and a trial/inquiry is a voyage to discern the truth. If

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such an inquiry report disclosed that the guilt is not proved, strong responsibility is shouldered on the Disciplinary Authority to disagree with the same. The Disciplinary Authority must record its opinion in not accepting the report submitted by the Inquiry Officer.

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The Tribunal further observed that on query, the learned counsel for the respondents as to whether any action has been initiated against the members of the Selection Committee or the Appointing Authority for selecting an ineligible candidate, no positive answer has been given by the counsel. The Tribunal further observed referring to the inquiry report that no lack of integrity is found against the applicant to state that it is unbecoming on the part of the Government servant.

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It is further observed that the UPSC has

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not considered the inquiry report and the

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disagreement reasons in a right perspective and the earlier orders passed by the Tribunal on the

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application filed by a rival candidate and the direction passed in the said application, and was of the opinion that the Disciplinary Authority has failed to consider the same and no valid reasons assigned by the Disciplinary Authority while imposing the penalty. Having reasoned the same comes to a conclusion that the order passed by the Disciplinary Authority suffers from legal error and set aside the same. It is this order passed by the Tribunal is called in question in this petition.

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Heard Sri. H.Jayakara Shetty, learned

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counsel appearing for the petitioners. Perused entire writ petition papers.

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Sri. H.Jayakara Shetty, reiterating the

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very same grounds placed before the Tribunal, states that when eligible candidates were available for interview as per the Advertisement and Recruitment Rules, invoking of provisions of relaxation to 'otherwise well qualified', applicants was uncalled for

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and the same has happened in the case on hand, wherein an otherwise qualified person has been sent call letter and ultimately selected which is against the advertisement as well as the Recruitment Rules. Further, submitted that the charge memo issued against the applicant in OA.No.351/2011, has been dismissed by the Tribunal allowing the disciplinary proceedings to be proceeded against the applicant. Though both the Inquiry Officers have submitted their report stating that charges levelled are not proved but the Disciplinary Authority disagreed with the findings, holding that there are sufficient evidence in support of the charge. Calling ineligible candidates when eligible candidates were available, invoking the relaxation clause without approval of the Competent Authority itself constitutes misconduct and as such, the penalty imposed in terms of recommendations by the UPSC is sound and proper and does not require any interference.

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He further submits that the Tribunal has

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failed to consider this aspect of the matter and which

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has resulted in setting aside the order passed by the Disciplinary Authority and accordingly, sought to allow the petition and quash the order passed by the Tribunal and confirm the order passed by the Disciplinary Authority.

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We have considered the submission made

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by the learned counsel. We are not inclined to interfere with the order passed by the Tribunal. The Tribunal has given proper reasons for the conclusion arrived by it which finds place in paragraph Nos.12, 13 and 14, which we extract as under:

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"12. It is surprising to note that though such relaxation was made, the charge memo was issued on 21/22.06.2010 along with the statement of Article of charges and the Statement of imputations of misconduct in support of Article of charges. No explanation is forthcoming for the inordinate delay caused in issuing the said charge memo. The first Inquiry Officer Shri K.S.Dhatwalia submitted his inquiry report on 28.02.2012 and the Disciplinary Authority found that the inquiry was not held in accordance with the prescribed Rules under CCS (CCA) Rules, 1965. Accordingly invoking Rule 15(2) of

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CCS (CCA) Rules, the Disciplinary authority decided to hold fresh inquiry by appointing new Inquiry Officer one Shri K. Ganeshan, the then Director General, Press Information Bureau from the initial stage of preliminary inquiry. The said Inquiry Officer Shri K.Ganeshan was replaced by Shri Geetnaram Joint Secretary (Retd.) Department of Pension and Pensioner's Welfare, Government of India, vide order dated 07.02.2013. The said Inquiry officer after holding the full fledged inquiry submitted a report that the Article of charges issued against the applicant was not proved. It is trite law that the Disciplinary Authority has to give reasons for disagreeing with the inquiry report. Reasons for the tentative disagreement with the finding of Inquiry Officer (part of Memorandum dated 09.07.2013 (Annexure A12)) disclosed that the said authority has considered the arguments advanced by the charged officer. No reason much less a valid reason has been assigned to disagree with the findings of the inquiry authority. This goes to the root of the matter. In the absence of the reasons assigned for disagreeing with the findings of inquiry authority, further proceedings initiated by the Disciplinary Authority falls to ground. Any edifice built upon a foundation, which is not in conformity with law shall fall.

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13. The Respondent No.1 has appointed the Inquiry Officers one after the other, but having found the inquiry report submitted by the Inquiry Officers not up to his predetermined expectation, proceeded to disagree with the inquiry reports. At the first instance the disagreement not being supported by valid reasons cannot be approved. As discussed in the preceding paragraphs, the huge delay caused in issuing the charge memo in the year 2010, for issuing the call letter in the year 1998 pursuant to the advertisement notification dated 19.10.1996 and the relaxation order passed by the competent authority on 01.02.2000 in compliance with the order passed by

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the CAT, Madras Bench, Chennai in OA No.508/1999 (DD 01.12.1999) creates a doubt in the mind of court inasmuch as the disciplinary proceedings initiated and the penalty order imposed. In our considered view, the Respondent No.1 proceeded blindly without application of mind on the advice of the UPSC in issuing the penalty order.

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14. It is the specific case of the applicant that the call letters were issued by him based on the report of Administrative Officer, Office of Deputy Director. The advice of the UPSC dated 23.05.2014 is only advisory in nature. The observation made by UPSC that requisite procedure has not been followed by the charged officer in making recruitment of Mr.G.Satish to the post of Dancer (Male), (S&DD), Chennai Region cannot be countenanced for the reason that the charged officer/applicant was neither in the selection committee nor he was the appointing authority. Onerous responsibility is on the selection committee and finally on the appointing authority for recruiting the candidates. From the query made by us with the learned Counsel for the respondents whether any action has been initiated against the members of the selection committee or the appointing authority for selecting an ineligible candidate, no positive answer is given. It is the bounden duty of the selection committee to examine the eligibility qualification of the candidates participated in the selection process. The inquiry report indicates, whatever has been done by the charged officer in this case was not found lack in integrity and is not unbecoming of a Government servant. It appears the UPSC has not considered the inquiry report and the disagreement reasons in a right perspective. Further, the order passed by the CAT, Madras Bench, Chennai in OA No.508/1999 and the compliance order dated 01.02.2000 passed by the competent authority relaxing the educational qualification in terms of the recruitment notification advertised also has not been properly weighed in

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arriving at the advice. All these factors would be relevant for determination of guilt alleged. Merely on surmises and conjectures, no employee could be punished. It is well settled legal principle that truth is invincible. Trial/inquiry is a voyage to discern the truth. If such an inquiry report disclosed that the guilt is not proved, strong responsibility is shouldered on the Disciplinary Authority to disagree with the same. At the cost of repetition, we reiterate that no such valid reasons are assigned by the Disciplinary Authority."

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The Tribunal in unequivocable terms has

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stated that it is well settled legal principle that truth is invincible and the trial/inquiry is a voyage to discern the truth and when the Inquiry Officer has submitted the report that the charges having not been proved, responsibility is shouldered on the Disciplinary Authority to record its disagreement with the same.

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The Tribunal has held that the penalty order founded only on recommendation of UPSC, in the absence of any valid reasons suffers from legal infirmity and makes that the order impugned is unsustainable in law, allowed the application and set

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