JUDGMENT
A.S. Sanghvi, Member (J)
1. The applicant who was working as a Junior Telecom Officer at Rajkot was served with a minor penalty charge-sheet under Rules 16 of the CCS (CCA) Rules on dated 3.9.97 asking him to submit his representation within 10 days from the receipt of the charge memo. Before he could reply to the charge-sheet, he was served with a fresh charge-sheet on dated 8.9.97 levelling the same charges and imputations and informing that the charge memo dated 3.9.97 is treated as cancelled. The fresh charge-sheet was communicated to him vide letter dated 16.9.97. The applicant replied to the charges levelled against him vide his representation dated 22.9.97. The charges levelled against the applicant were that he had complained about the bogus signatures on MR No. 17, Book No. 95, Work Order No. 100 dated 4.12.93 by Mr. R.V. Sharma SDE, CXL, Rajkot. At the time of inquiry by V.O., O/o. C.G.M., MTCE WTR, Mumbai on 22.7.96 he was asked to name the person who had signed the above MR instead of the actual employed labours, but even though he had mentioned in the complaint that he knew the persons who had signed on behalf of the labours he had refused to name him. He had levelled the allegations against the officials/officers without any documentary proofs. He had not helped the V.O. to book the culprit which violates the Rule 10 of CCS(Conduct) Rules, 1964. The second article of charge levelled against the applicant was that while functioning as JTO T/T, Rajkot during the period in the aforesaid office he had tried to access important documents. As the MR and work order were supposed to be the important documents and the unauthorized officials should not have the access to such documents it was not understood how the applicant got access to such documents for which he was not concerned with the section. It was alleged that the applicant had violated the Rule 11 of the CCS (Conduct) Rules, 1964 and had done such an act which was unbecoming of Govt. servant contravening Rule 3(i)(iii) of CCS (Conduct) Rules, 1964.
2. The Disciplinary Authority on the receipt of the reply of the applicant on the charge levelled against him proceeded to impose penalty on the applicant and vide his order dated 11.12.98 holding him guilty of both the charges, imposed the penalty of withholding of two increments of pay for two years without cumulative effect. After an unsuccessful appeal the applicant has preferred this O.A. in this Tribunal.
3. The main contention of the applicant is that once a charge-sheet was given to him on 3.9.97 it was not open to the Disciplinary Authority to give him a fresh charge-sheet without assigning any reason for cancellation of the earlier charge-sheet. It is also contended that no detailed inquiry in the matter was conducted by the respondent No. 3 and without giving any opportunity of defending himself the respondents had victimized him for levelling certain allegations against Mr. R.V. Sharma. The provisions of Rule 10 of the CCS (Conduct) Rules cannot be made applicable to the facts of the instant case as the inquiry was not before any authority appointed by the Govt./Parliament or State Legislature. He had come to know about the fraud committed by the superior officer and made a complaint and it is pertinent to note that his complaint was found correct and accordingly the officer concerned was punished. The Vigilance Officer should have investigated the matter further, and found out from the persons who had committed the offence about the identity of the person who signed the muster. The responsibility should not have been shifted on the applicant and no proceedings should have been initiated against him. He has also contended that he had given the complaint on the basis of his personal knowledge and not from any unauthorised access of the documents. Hence, the second article of charge also had no basis and could not have even formed part of the charge memo. He has prayed that the punishment imposed on him be quashed and set aside with all consequential benefits.
4. The respondents on the other hand in their reply have defended the action of the Disciplinary Authority maintaining that refusal of the applicant to disclose the name of the person or the identity of the person who had illegally signed the muster roll and indulged into misappropriation, had required the Disciplinary Authority to initiate proceedings against the applicant. According to them, the applicant had submitted a complaint on 7.11.94 and again thereafter on 15.11.94. He had thereafter again made another complaint on 22.2.96 making certain allegations against one Mr. Sharma, SDE, CXL, Rajkot. The vigilance enquiry was held against Mr. Sharma and in that vigilance enquiry, the applicant was examined as a witness. Though he admitted having lodged the complaint against Mr. Sharma who committed forgeries, he refused to disclose the name of persons with the result that further enquiry in the case could not be proceeded. Since the applicant had refused to divulge the name of the responsible persons for perpetuating, a fraud disciplinary proceedings were initiated against him. The Vigilance Officer who had conducted inquiry against Mr. Sharma had found him guilty of procedural lapse in the sense that he had failed to verify personally the signatures of the persons who received payments but entrusted the same to his subordinate. The Vigilance Officer had however, found that payments were made to correct persons and that such persons had stated that they had received the payments. The applicant had however, claimed that payments were made to wrong persons but had refused to come out with the names of such persons. He had therefore, not substantiated the allegation made in the complaint. They have further contended that the first charge-sheet dated 3.9.97 was defective in the sense that it was not addressed to the applicant. Hence, the revised charge-sheet dated 8.9.97 was issued to avoid the technicality and served on the applicant. They have also denied that the Disciplinary Authority and the Appellate Authority had passed orders without application of mind and that the act of the applicant cannot be considered to be a misconduct. They have also contended that during the course of inquiry by the Vigilance Officer no documentary proof was produced by the applicant about the names of the so-called bogus signatories or the names appearing in the muster roll under investigation. He had acquired personal knowledge by having unauthorised access to documents which he had no concern. He had no business to acquire information from a section of the office to which he was not attached. He has unauthorisedly communicated the said information and therefore, was guilty for misconduct of the Rule 11 of the CCS (Conduct) Rules, 1964. They have prayed that the O.A. be dismissed with cost.
5. The applicant has filed rejoinder to which the respondents have filed sur-rejoinder.
6. We have heard the learned Counsel for both the parties at length and duly considered the rival contentions. We have also perused the departmental inquiry file made available by Mr. Doctor to us.
7. It is not disputed by the applicant that he had given in writing some complaints against one Mr. Sharma levelling allegations of preparing bogus muster roll and misappropriation of amount, etc. It is also not in dispute that the applicant and Mr. Sharma were not working in the same section and that both of them were working in different section at Rajkot at the relevant time. It is also evident from the letter dated 22.2.96 (Annexure-A) of the applicant that he was aware that an enquiry was conducted in the allegations made by him in his complaint against Mr. Sharma. He has made a grievance in this letter that he has not been conveyed (he result of the inquiry even after his repeated request. This letter dated 22.2.96 clearly suggests that he owes the responsibility of complaining about Mr. Sharma vide his letter dated 7.11.94 and 15.11.94. It also discloses his grievance against Mr. Sharma as Mr. Sharma had not made the payment of his bills without authority letter. There is also no denial of the fact that in the inquiry conducted against Mr. Sharma by the Vigilance Officer, the applicant had appeared as a witness and his evidence was recorded. When asked to identify the person who had signed the bogus muster roll, he had refused to give the names of the persons who signed the muster roll though maintaining in his evidence that he knew that person. Mr. Pathak, learned Counsel for the applicant has submitted that refusing to answer the question in the evidence before the Inquiry Officer cannot be construed a misconduct on the part of the employee concerned. Referring to Rule 10 of the CCS (Conduct) Rules, Mr. Pathak has submitted that the inquiry by the Vigilance Officer cannot be equated with the inquiry before an authority appointed by the Govt./Parliament or State Legislature. According to him, it was for the Vigilance Officer to find out who had prepared the bogus muster and who had signed the muster roll. The applicant was justified in refusing to name the persons who had signed those muster rolls and for that he cannot be said to have misconduct himself. According to him, there was absolutely no justification to initiate disciplinary proceedings against the applicant on such a ground of refusal to answer the question in the inquiry proceedings.
8. We are unable to appreciate the submission made by Mr. Pathak. It is to be seen that the inquiry against Mr. Sharma was started only on account of the applicant lodging complaint against Mr. Sharma. It is an undisputed position that Mr. Sharma was a colleague of the applicant and if the applicant had no substantial or cogent reason to make allegations against Mr. Sharma which would have serious repercussions on the career of Mr. Sharma, then it goes without saying that the applicant had misconducted himself by lodging a false complaint against Mr. Sharma. It was therefore, all the more necessary on the part of the applicant to substantiate his allegation made in the complaint by pointing out as to who had signed the muster and/or who had prepared the bogus muster rolls. Once he had got an inquiry instituted against Mr. Sharma, by making complaint about serious misconduct of Mr. Sharma, it was obligatory on the part of the applicant to furnish necessary evidence to substantiate his allegation against Mr. Sharma. Having failed to substantiate his allegation against Mr. Sharma and having refused to furnish necessary evidence in support of his complaint the applicant had made himself liable for initiation of the disciplinary proceedings against him. It would clearly imply that he had lodged a false complaint against his colleague trying to jeopardise his career. This can easily be said to be an act of grave misconduct on the part of the employee. If he was not in possession of the cogent or sufficient reason to substantiate his allegation against his colleague he ought to have refrained from making allegation against his colleague or superior. The applicant was made a grievance that he has made a scapegoat to conceal the lapses of the higher officers in the vigilance inquiry and false inquiry was instituted against him. He has conveniently forgotten that he himself had got an inquiry instituted against Mr. Sharma and when it was an obligation on his part to substantiate his allegations made against Mr. Sharma, he had failed in that obligation though maintaining all the time that he had known the persons who perpetuated the forgery etc. This would either imply that even though he knew the identity of the guilty persons, he was deliberately trying to protect them or that he did not know the real identity of the persons. Both ways he was misconducting himself as a responsible Govt. servant. His conduct was clearly unbecoming of a responsible Govt. officer. The authorities therefore had good and sufficient reason to initiate disciplinary proceedings against him.
9. The Disciplinary Authority’s finding on Article I of the charges cannot therefore be said to be perverse or illegal and does not require our interference. Since it was a minor penalty charge-sheet under Rule 16 of the CCS (Conduct) Rules served on the applicant, the Disciplinary Authority was not required to hold a regular inquiry in the charges levelled against the applicant and was only required to be satisfied from the reply of the applicant as well as from the charges levelled against him that the charges are proved or not.
10. So far as the Article II of the charges is concerned, we agree with the submission of Mr. Pathak that the same could not have been said to be proved as there was no evidence before the Disciplinary Authority to conclude that he had unauthorised access to the documents of which he had no concern. The Disciplinary Authority has also not given any reason for holding this article of charges as proved. Mr. Doctor learned Counsel for the respondents has also not been able to support the finding of the Disciplinary Authority and Appellate Authority on this article of charge by pointing out any evidence relating to the proof of the same. When there is no evidence about the name, the conclusion is inevitable that the Disciplinary Authority has merely assumed that he had unauthorised access to the official document and that he had used the unauthorised access for levelling imputations of misconduct against Mr. Sharma. The finding on the Article II of the charges therefore, cannot be sustained but we find that the penalty imposed by the Disciplinary Authority being a minor penalty does not require to be interfered with on this ground.
11. Much ado is made by Mr. Pathak for the applicant about the charge-sheet dated 3.9.97 having been cancelled by the respondents and issuing the fresh charge-sheet vide orders dated 8.9.97 without assigning any reasons. Relying on the Govt. instructions No. 9 under Rule of 15 of the CCS (CCA) Rules. Mr. Pathak has submitted that the second charge-sheet is not tenable and has vitiated the whole inquiry initiated against the applicant. The Govt. of India’s instruction as envisaged in D.G.P. & T.’s letter No. 114/324/78-Disc.II, dated 5.7.79 reads as under:
“It is clarified that once the proceedings initiated under Rule 14 or Rule 16 of the CCS(CCA) Rules, 1965, are dropped, the Disciplinary Authorities would be debarred from initialing fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge-sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, important that when the intention is to issue a subsequent fresh charge-sheet, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action and indicating the intention of issuing a subsequent charge-sheet appropriate to the nature of the charges the same was based on.”
The opening sentence of this letter of the D.G.P. & T. leaves no room for doubt that it is a clarification given by the D.G.P.&T., so far the issuance of a fresh charge-sheet is concerned. It is not by way of an obligation or by way of an order that this clarification is issued. In any case so far the instant case is concerned, the first charge-sheet was issued to the applicant on 3.9.97 and before he could reply to the charge levelled in the charge-sheet, the authorities concerned had issued a fresh charge-sheet on 8.9.97 intimating the applicant that the first one was treated as cancelled. It is no doubt true that the intimation dated 16.9.97 did not contain any reasons for the cancellation of the first charge-sheet but then it can be easily seen that cancellation of the first charge-sheet had not prejudiced the applicant, in any manner. He had not even submitted his reply to the first charge-sheet and as such, he cannot claim that his defence was made known to the respondents and therefore, the cancellation of the first charge sheet without any reason and the same being replaced by a fresh charge-sheet has prejudiced him in any manner. Mr. Doctor, learned Counsel for the respondents has however, pointed out that the cancellation was motivated on account of technical defect of the first charge-sheet not having been addressed to the applicant. According to him, the first charge-sheet was not at all issued to the applicant as it was not addressed to him and as such it was ab initio void and did not require cancellation. According to him, the authorities had taken precaution to inform the applicant that the first charge sheet was treated as cancelled to avoid any technical objection being raised by the applicant. There is lot of substance in what Mr. Doctor has submitted. Since the first charge sheet was not addressed to the applicant, the respondents were justified in issuing a fresh charge-sheet to the applicant with same article of charges and imputations to avoid any technical objection being raised by him. The conduct of the respondent in issuing the fresh charge sheet within a week of the issuance of the first charge sheet also reflects their anxiety to see that no technical objection being raised on the ground of non-service of the charge sheet on the applicant and also reflects their conscious decision not to drop the charges against the applicant but to pursue with the same charges. Hence, we are not inclined to accept the submission that in view of the clarification of the D.G.P. & T., the issuance of the second charge sheet by the respondents without any reason has vitiated the inquiry against the applicant. In fact, it cannot be said also that a fresh charge sheet was given to the applicant as the authorities had resorted to issue the same charge-sheet to the applicant without any modification or change in the charge-sheet given earlier on 3.9.97. Mere use of the word cancellation of the first charge sheet does not change the nature of the charges given by way of the first charge sheet and since the same charge sheet was sent again to the applicant without any modification, it cannot be held that the second charge sheet is barred in view of the authorities concerned, not recording the reasons for the cancellation of the first charge-sheet. We therefore, reject this submission.
12. We may point out that in UP State Transport Corporation v. Subhash Chandra Sharma, 2001(1) SLJ 269, the Supreme Court while dealing with the case of charges for abusing and threatening the colleagues by the delinquent has held that this was a misconduct and the penalty of removal from service imposed on the employee is justified. In the instant case though the charges of abusing and threatening the colleague are not there, more serious charge of levelling imputations or allegations of misappropriation and misconduct on the colleague have been made by the applicant. If in fact those charges were proved the colleague, would have faced the penalty of removal from service also. The charges could not be proved against Mr. Sharma only because of the applicant refusing to identify the persons who had signed the muster, etc. and refused to cooperate in the inquiry initiated against Mr. Sharma on his complaint. As observed earlier, this conduct of the applicant clearly suggests that either he had lodged the false complaint against Mr. Sharma or he had deliberately refrained from furnishing the evidence against Mr. Sharma. Either way he had misconducted himself and therefore, was rightly imposed the penalty by the Disciplinary Authority.
13. For the aforementioned reasons and in the facts and circumstances of the case, we do not see any reason to interfere with the punishment imposed on the applicant by the Disciplinary Authority and confirmed by the Appellate Authority. We do not see any merit in the O.A. and are of the opinion that the same deserves to be rejected. In the conclusion, therefore, the O.A. is rejected. No order as to costs.