Dismissed

The Union of India v. P.Venu

Kerala HC18 Dec 2019OP (CAT)/16/2019

Case brief

AI extract

What is this about?

The Kerala HC rejected an Original Petition filed by a retired Assistant Salt Commissioner challenging the Karnataka Administrative Tribunal's order quashing disciplinary proceedings. The Court held that fresh initiation of proceedings was barred by the four-year limitation period under CCS Pension Rules applicable to pensioners.

What did the court decide?

The Original Petition was rejected and parties left to suffer their respective costs.

The Union of India Vs P.Venu — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941

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OP (CAT).No.16 OF 2019

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AGAINST THE ORDER IN OA NO.106/2017 DATED 19-12-2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER/RESPONDENT:

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THE UNION OF INDIA THROUGH THE SECRETARY, DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY, UDYOG BHAVAN, NEW DELHI110011.

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BY ADV. SRI.T.V.VINU, CGC

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RESPONDENT/APPLICANT:

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P.VENU, ASSISTANT SALT COMMISSIONER (RETIRED), RESIDING AT NANDAVANAM, UDAYANAPURAM, VAIKOM-686143.

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BY P.VENU,(PARTY IN PERSON)

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SRI.S.RADHAKRISHNAN (AMICUS CURIAE)

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12-12-2019, THE COURT ON 18-12-2019 DELIVERED THE FOLLOWING:

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OP (CAT).No.16 OF 2019

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JUDGMENT

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K. Vinod Chandran, J.

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We posted three Original Petitions [O.P. (CAT) Nos.119/2016, 16/2019 and 268/2019] together, from three separate orders of the Central Administrative Tribunal [“CAT” or “Tribunal” for brevity]. The same applicant before the Tribunal is a Government servant, who retired, as Assistant

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Salt Commissioner, on 30.06.2013. Two matters [O.P (CAT) Nos.119/2016 and 16/2019] are with respect to disciplinary proceedings initiated against the applicant, one of which ended with imposition of penalty. The Tribunal though found the allegation of misconducts having been proved, relegated the matter to the Disciplinary Authority for consideration of reduction of penalty. In the second Original Application ['OA' for brevity], in which the disciplinary proceedings had not concluded, the Tribunal found the initiation to be

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OP (CAT).No.16 OF 2019 3

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improper and allowed the OA, against which the Union of India is before us. While the above two matters were pending, the applicant was denied gratuity and commuted value of pension; the provisions enabling such withholding was challenged as unconstitutional before the Tribunal, which OA

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stood rejected. The third Original Petition [O.P(CAT) No.268/2019] is filed by the applicant against that rejection order of the Tribunal. Though the very same applicant is before us, we pass separate judgments in the three Original Petitions. We refer to the parties from their status in the OA and Annexures as produced in the OA.

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2. The Original Application [for brevity, 'the OA'] from which the above Original Petition [for brevity, 'the OP'] arise was filed against the initiation of a disciplinary proceeding, which is

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the second disciplinary proceedings referred to

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earlier. The Tribunal found the disciplinary proceedings to have been not properly initiated and allowed the OA. Sri. T.V. Vinu, learned Central Government Standing Counsel, argues that the applicant had approached the judicial forums earlier with a similar contention, which though failed to be considered, was not left open and the orders passed were never challenged thereafter. Here the disciplinary proceedings are not completed still.

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3. Annexure-A1 is the proposal for disciplinary action against the applicant issued by the Department of Industrial Policy and Promotion [Salt Section]. The Minister has just signed on the proposal without even perfunctorily noticing or recording an approval. The earlier challenge made are seen from Annexure-A13, A15 & A18. Annexure-A13 is the order in O.A. No.946 of 2013. Therein, as indicated in the order itself, the prayer was for a

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direction to the respondents to consider the defence statement and dispose of the disciplinary proceeding expeditiously. The applicant, who had appeared in person before the Tribunal, was not present on the date of disposal. It is noticed in the order that the applicant had been heard by the competent authority and there has to be a decision taken in the matter of statement of defence submitted by the applicant. There was hence no challenge against the initiation of disciplinary proceedings at that stage.

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4. It is trite that when a ground is

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available to a litigant, it has to be raised at the first instance or he is deemed to have waived such right. But in this case, we find that at the stage of filing of O.A. No.946 of 2013, there could have been no challenge to the initiation of disciplinary proceedings, since the applicant was not aware of

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the manner in which it was initiated. For this

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purpose, we refer to the averments in the OA, from grounds (bbb), (ccc) & (ddd). In the first paragraph referred the applicant speaks of having filed O.A. No.946 of 2013. After which, the Deputy Secretary, who was instrumental in initiating the disciplinary proceedings one Smt.Sanjivani Tamhane afforded a personal hearing to the applicant on 23.10.2013, wherein he had made oral submissions and also furnished a written defence. It is stated in the last of the above referred grounds that after the conclusion of the personal hearing, the applicant was handed over a copy of the decision of the competent authority approving initiation of the disciplinary proceedings, which obviously was on 23.10.2013. The official respondents do not refute

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any of these statements made by the applicant. The OA was disposed of on 25.10.2013, but in the absence of the applicant. Hence at the time of filing of OA No.946 of 2013, it cannot be said that

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the applicant had knowledge of the specific irregularity pointed out by him.

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5. The next proceedings, OA No.205 of 2014, was disposed of by Annexure-A15. There, the applicant had for the first time raised the ground against the initiation of disciplinary proceedings and alleged it to be null and void for reason of the approval being not in-consonance with law. The Tribunal noticed that the written statement of defence was filed and the disciplinary authority had also heard him on the same. Hence the OA was disposed of without any observation on the merits and specifically leaving open the contentions raised by the applicant to be urged before the disciplinary authority. Hence in the present case, it cannot be said that there was a denial of consideration, which order had acquired finality. The questions raised were also specifically left open.

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6. The last of such proceedings is seen from Annexure-A18, which disposed of OA No.432 of 2015. Therein the applicant had raised a contention against the change of Enquiry Officer, which was negatived. No contention regarding the initiation of disciplinary proceedings was raised nor could he have raised such a ground, since in the earlier proceedings the same was left open to be urged

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before and considered by the disciplinary authority. In this context, the decisions of the Hon'ble Supreme Court in Chairman-cum-Managing Director, Coal India Ltd. V. Ananta Saha [(2011) 5

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SCC 142] & Union of India v. P.V. Gopinath [(2014) 1 SCC 351 assumes significance.

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7. Before we look into the decisions, we

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have to notice Rule 14(2) of the Central Civil Service [Classification, Control & Appeal] Rules, which is extracted hereunder:

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“14. Procedure for imposing major

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OP (CAT).No.16 OF 2019

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penalties:

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xxxx xxxx xxxx (2)Whenever the Disciplinary

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Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.”

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8. Ananta Saha [supra] is a case in which

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the delinquent employee had abused and attempted to assault his Senior Officer and perpetrated assault on other Officers who tried to intervene. Once the enquiry proceedings were directed to be de novo carried out from the stage of initiation. In the second round, the High Court interfered with the initiation of enquiry on grounds of the Chairmancum-Managing Director [for brevity, 'the CMD'] of Coal India Ltd. alone having jurisdiction to initiate an enquiry and also upholding the

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OP (CAT).No.16 OF 2019 10

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allegations of malafides. The Hon'ble Supreme Court set aside the findings on malafides entered into by the High Court holding that there was no sustainable ground of bias, predetermination or malafides. The Hon'ble Supreme Court found that it was sufficient if the CMD of the Subsidiary Company initiated the proceedings but actually the initiation was found to be by the Officer on Special Duty ('OSD' for short) and not by the CMD. The specific ground raised by the delinquent was that the OSD initiated the enquiry proceedings and the CMD of the subsidiary Company put his signature without making any observation.

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9. B.V.Gopinath arose in a slightly different context of the ground raised against the initiation of disciplinary proceedings being, lack of approval of a charge sheet by the disciplinary authority who was the Finance Minister. There the Government contended that the Finance Minister

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having granted approval for issuing charge memo/sanction for proceeding, it is deemed that the charge memo also was approved. The Hon'ble Supreme Court looking at an Office Order, relevant to that case, found that there is clear distinction between approval for issuing charge memo and approval of charge memo. The approval for issuing a charge memo deals with initiation of the proceeding. Whereas

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the approval of the charge memo arises after the first approval has been granted. When the initiation of disciplinary proceedings is approved, then a charge memo has to be drafted and the same approved by the Finance Minister. It was held that recognizing the gravity of the consequences, the initiation of prosecution and charge memo itself had to be approved by the Finance Minister-the Disciplinary Authority. This power is not to be mechanically exercised and involve exercise of discretion looking at the relevant facts of the

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case, the allegations levelled and the grounds which result in the misconduct charged against the delinquent. When the power to exercise discretion has been conferred on a person it is the onerous responsibility to individually assess the attendant circumstances and arrive at a satisfaction on the initiation of proceedings and the efficacy of the charge sheet. There cannot be a delegation unless there is an express provision to delegate such power to another.

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10. The Hon'ble Suprmee Court in Ananta

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Saha held so in paragraphs 30,31 & 32 which are extracted hereunder:

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“30. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been

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OP (CAT).No.16 OF 2019

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properly revived even from the stage subsequent to the issuance of the chargesheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.

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31. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the enquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the enquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab[AIR 1963 SC 395], Union of India v. H.C. Goel[AIR 1964 SC 364], Anil Kumar v. Presiding Officer[(1985) 3 SCC 378] and Union of India v. Prakash Kumar Tandon[(2009) 2 SCC 541].) Thus, the

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OP (CAT).No.16 OF 2019

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abovereferred order could not be sufficient to initiate any disciplinary proceedings.

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32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.”

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(underlining by us for emphasis)

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11. The requirement of reasons hence is a

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mandate at the time of initiation and also at the time of conclusion. The very same defect, in Ananta

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Saha stares at the face of the Union of India in these proceedings. The Minister who is the Disciplinary Authority has mechanically signed the proceedings without recording any opinion or observations and not even indicating a formal approval. There is absolutely no application of mind and there is no opinion of the Authority discernible from the proceedings. Rule 14 (2) of

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the CCA Rules require the Disciplinary Authority to form an opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a government servant. This ensures that the proceedings are not initiated merely on the ipsi dixit of the superiors of a government servant; an act vengenful and arising out of personal rancour or a mere act of victimisation. The Disciplinary Authority hence has to look at the allegations raised, the statement made in defence and form a defenite opinion as to there being a case made out for further enquiry, in the least a prima facie satisfaction that the matter requires a detailed probe. This cannot be evidenced by a mere signature with nothing more revealing the mind of the Disciplinary Authority. We hence follow thee binding precedents, as has been done by the Tribunal to strike down the enquiry initiated against the applicant, to uphold

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the impugned order.

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12. At this stage the learned CGSC prayed

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on the strength of the binding precedents that the matter be remanded or the Authority be directed to proceed de novo from where the irregularity is found. Specific reliance is placed on paragraph 46

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of Ananta Saha which is extracted hereunder:

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1. In ECIL v. B. Karunakar[(1993) 4 SCC 727] and Union of India v. Y.S. Sadhu[(2008) 12 SCC 30], this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

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13. We bow to the above proposition, but

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however find no application in the case of the

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OP (CAT).No.16 OF 2019

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applicant herein, who is retired long back, precisely in 2013, about 7 years back. For one the applicant being superannuated, there exists no employer-employee relationship between the Union Government and the applicant. The applicant is no longer a government servant and is a pensioner who can be proceeded against only as permitted by the Central Civil Services (Pension) Rules.We specifically notice Rule 9(2)(b) of the CCS Pension Rules which prescribes the manner in which a retired government servant can be proceeded against. Departmental proceedings against a Government servant if not instituted while in service can be instituted only (i) with the sanction of the President and (ii) in respect of any event which took place within four years before such institution. The allegations raised are with respect to incidents that occured while the applicant was in service; obviously in discharge of

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his duties. The applicant retired seven years back and hence there can be no fresh initiation of disciplinary proceedings at this juncture for reason of the events upon which the disciplinary proceedings can be initiated, occured long prior to the four year period, within which period alone a valid proceedings could be initiated against a pensioner.

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Original Petition stands rejected for the reasons stated above and the parties are left to suffer their respective costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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Sd/-

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V.G. ARUN, JUDGE.

sp/26/11/19

//True Copy//

P.A. To Judge

OP (CAT).No.16 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1	TRUE COPY OF NO.180/00106/	ORIG 2017	INAL APPLICATION IN OA , DATED 24/01/2017.
ANNEXURE A2	TRUE COPY OF	THE	ORDER DATED 20/03/2013.
ANNEXURE A3	TRUE COPY 17/05/2013.	OF	THE MEMORANDUM DATED
ANNEXURE A4	TRUE COPY O REPORT.	F FI	NDINGS OF THE INQUIRY
ANNEXURE A5	TRUE COPY 28/06/2013.	OF	THE LETTER DATED
ANNEXURE A6	TRUE COPY 21/01/2011.	OF	THE LETTER DATED
ANNEXURE A7	TRUE COPY	OF	THE CORRESPONDENCE
	RELATING TO OFFICERS.	ME	ETING OF THE SENIOR
ANNEXURE A8	TRUE COPY 04/01/2012.	OF	THE LETTER DATED
ANNEXURE A9	TRUE COPY 04/01/2013.	OF	THE LETTER DATED
ANNEXURE A10	TRUE COPY OF DATED 06/06/2	THE 013.	STATEMENT OF DEFENCE
ANNEXURE A11	TRUE COPY 26/06/2013.	OF	THE LETTER DATED
ANNEXURE A12	TRUE COPY OF DATED 23/10/2	THE 013.	EXPLANATORY STATEMENT
ANNEXURE A13	TRUE COPY OF	THE	ORDER DATED 25/10/2013.
ANNEXURE A14	TRUE COPY OF	THE	REPLY STATEMENT.
ANNEXURE A15	TRUE COPY OF	THE	ORDER DATED 08/04/2014.

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OP (CAT).No.16 OF 2019

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ANNEXURE A16 TRUE COPY OF THE DEPOSITION OF SMT. SANJEEVANI TAMHANE, DEPUTY SECRETARY. ANNEXURE A17 TRUE COPY OF THE ORDER DATED 23/04/2015. ANNEXURE A18 TRUE COPY OF ORDER DATED 30/11/2015. ANNEXURE A19 TRUE COPY OF THE APPLICANT'S DEPOSITION. ANNEXURE A20 TRUE COPY OF THE DAILY ORDER SHEET DATED 12/05/2016. ANNEXURE A21 TRUE COPY OF WRITTEN BRIEF. ANNEXURE R1 TRUE COPY OF THE ORDER DATED 22/11/1998. ANNEXURE R2 TRUE COPY OF THE ORDER DATED 25/06/2013. EXHIBIT P1 TRUE COPY OF ORIGINAL APPLICATION IN O.A.NO.180/00106/2017, DATED 24.1.2017. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00106/2017, DATED MAY, 2017. EXHIBIT P3 TRUE COPY OF THE ORDER IN O.A.NO.180/00106/2017, DATED 19.12.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH.

The Union of India v. P.Venu

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The Union of India v. P.Venu

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