BIMALENDU GUPTA Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) SHRI Bimalendu Gupta, Sr. Accountant in the Office of the Accountant General (A&F), Assam, Guwahati, in this O. A. challenges validity of suspension order dated 11.4.2007, followed by charge memo dated 23.4.2007, which culminated in penalty of removal inflicted vide order dated 26.3.2008. Initially he had sought various other reliefs but, when he was confronted with Rule 10 of CAT (Procedure) Rules, 1987 he responded by submitting M.P. No. 78/2010 emphasizing quashing of suspension order dated 11.4.2007, charge memo dated 23.4.2007 and consequential proceedings. Vide order dated 8.6.2010 we had noticed the statements made by learned Counsel for applicant that other reliefs, not concerned with the disciplinary proceedings will be not be pressed by him.

(2.) ADMITTED facts are while working as Sr. Accountant of C.A. -4 Section and in contemplation of departmental enquiry vide order dated 11.4.2007, Sr. Deputy Accountant General (Admn.) placed him under suspension with immediate effect. It was noticed therein that his continuance in office would prejudice investigation and interest of the department and subvert discipline in the office. Immediately thereafter, charge memo dated 23.4.2007 under Rule 14 of CCS (CCA) Rules, 1965 was issued containing seven articles of charge. Article 1 alleges that he was in the habit of leaving the section regularly after signing the Attendance Register without permission of his superiors and without performing his assigned work. Article II alleges that he did not carry out the work allotted to him within the target, as a result of which work remained undone. Article III was to the effect that he was absent from the section without intimation and permission from 26.3.2007 to 2.4.2007. According to Sectional Attendance Register, he continued to absent himself on subsequent days also upto 10.4.2007 except 5.4.2007 on which day he came to section and put his signature therein after he was "crossed out" as absent. Article IV alleges that when he served certain memorandum he refused to receive the same which amounts as an act of insubordination. Vide Article V it was alleged that he did not comply with the official requirement of Circular dated 17.11.2006 calling for details of residential address from all officials of the office. Article VI was to the effect that though he was nominated for a training programme at Regional Training Institute, Shillong from 1.2.2007 to 7.2.2007 but he did not attend said training during aforenoted period. Lastly, vide Article VII it was alleged that the submitted claims for medical treatment of his wife and related claims including airfare without following prescribed procedure. He submitted frivolous representations time and again disturbing the working atmosphere of the office and wasting official working hours. Written statement was submitted on 8.5.2007 disputing the aforesaid allegations. Inquiry Office was appointed and an oral enquiry was held. As applicant did not participate in the enquiry, it was conducted ex parte. Inquiry Officer submitted a detailed report dated 20.12.2007 holding that the prosecution side sustained the charges mostly by documentary evidences, which were official, and there was no scope to deny or ignore or misinterpret them or to be prejudiced. Said enquiry report was made available to him vide communication dated 4.1.2008 and required him to submit written representation, if any, within the time limit prescribed therein. Senior Deputy Accountant General (Admn.)inflicted a penalty of removal vide order dated 26.8.2008.

(3.) CONTESTING the claim and filing detailed reply, the Respondent Nos. 2 -5 stated that disciplinary proceedings were instituted against him for misconduct in the form of dereliction of duty, non -performance and habitual and deliberate insubordination. Seven charges levelled against him were proved by the Inquiry Officer, which led to the removal from service without disqualification for future employment. The gravity of misconduct was so serious that if the same had not been dealt with firmly and immediately and allowed to continue, it would not only amount to retention of a Government servant in service who did not perform his official duties but it would have emboldened him to continue his misconduct having a detrimental effect on the work culture of the department and a demoralizing effect on the sincere, committed and hardworking colleagues. Vide order dated 12.4.2007 (Annexure -R/IV) it was made clear that the Subsistence Allowance shall not be denied on any ground unless a Government servant is unable to/does not furnish a certificate that he is not engaged in any other employment, business, profession or vocation during the period of suspension, while endorsing copy of said order to the Accounts Officer, I/C Administration -2 section, requested was made to make payment of Subsistence Allowance only on production of such certificate by him. Said certificate had been submitted by him only on 21.9.2007 and, therefore, it was the applicant who was responsible for belated payment of Subsistence Allowance. Immediately on submission of said certificate, applicant was paid subsistence allowance on 4.10.2007. He had been afforded reasonable opportunity of being heard; prescribed procedure had been followed by the concerned authorities. Drawing our attention to the detailed and exhaustive enquiry report, it was pointed out that vide order dated 13.6.2007 he was required to appear before the Inquiry Officer for preliminary hearing on 19.6.2007 as well as to intimate the name of his Defence Assistant and produce the Disciplinary Authority's permission in case his defence Assistant was a legal practitioner. He did not appear on said date, and therefore, proceedings were adjourned to 16.7.2007. Detailed order -sheet as well as notice had been sent to him from time to time. He continued to defy the directions of said Inquiry Officer. Witnesses listed vide charge memo were examined. It was only on 31.7.2007 when proceedings were in progress and when witness No. 2 was being examined, he entered the room of the Inquiry Officer in a highly casual manner without following any decorum and in reply to question posted by the Inquiry Officer, he stated that he could not attend the proceedings due to some pending issues relating to his suspension and hoped that he would join the future proceedings. Vide communication dated 21.8.20 07 he requested the Inquiry Officer to adjourn/suspend/postpone said proceedings fixed for 21.8.2007 and since by then, proceedings had been completed on said day there was no scope for the Inquiry Officer to act retrospectively. Similarly, he made another representation dated 3.9.2007 urging the Inquiry Officer to stay/cancel/defer the enquiry/departmental proceedings. Finding no valid reason for accepting aforesaid request, his prayer was rejected by passing reasoned order. On conclusion of the enquiry, he was also afforded opportunity to submit his Defence Brief but no response was received from him till the last date fixed for said purpose. In such circumstance, Inquiry Officer had no option but to close the enquiry proceedings. Ultimately, the Inquiry Officer concluded that the charges levelled were proved. He was a Sr. Accountant, which is a Group 'C post. As per para 2 of Section 'F', of Comptroller and Auditor General's Manual of Standing Orders Administration) Volume II Third Edition, for all Group 'C posts, Senior Deputy Accountant General/Deputy Accountant. General/Officers of equivalent rank is the Appointing Authority and as per Column 5, Heads of Departments in the rank of Principal Accountant General/Accountant General is the Appellate Authority. Mr. G. Baishya, learned Counsel for the Respondents, thus, emphasized that he being a Group 'C employee, departmental proceedings have rightly been proceeded and concluded by Senior Deputy Accountant General (Admn.) being the Appointing Authority as well as Disciplinary Authority. The question of incompetence on his part as well as non -jurisdictional is misconceived, baseless and untenable in law. In this background, learned Counsel contended that none of the contentions raised by applicant is justified and have any substance. Delay in payment of subsistence allowance is attributable to the applicant. He himself is responsible for conclusion of ex parte departmental proceedings. His conduct in itself establishes his complicity. He is precluded to challenge its validity at this late stage, keeping himself away from the enquiry. There was no delay in payment of subsistence allowance. When he had willfully not participated in the enquiry, he is precluded to question its validity. It was also contended that reasoned order had been passed by the Appellate Authority while inflicting the punishment. Thus, there was no scope for any judicial review. Reliance was placed on, (i) Union of India v. B.C. Chaiurvedi, (1995) 6 SCC 750; (ii) Tar a Chand Vyas v. Chairman and Disciplinary Authority and Ors. : (1997) 4 SCC 565; (iii) High Court of Judicature at Bombay through Its Registrar v. Shashikant S. Patil and Anr. : 2000(2) SLJ 98 (SC) : (2000) 1 SCC 416.