ORDER
S.K. Agrawal, Member (A)
1. The applicant has filed this O.A. with the prayer to call for the records relating to the impugned orders DOP/10/103053/DMRL dated 8.4.2002 passed by respondent No, 1 and No. CM/1/6/1/1 (MC)/1 dated 13.9.1.2001 passed by respondent No. 2 imposing the penalty of reduction by two stages with cumulative effect and treating the entire period of suspension as not duty for seniority and increments as totally illegal and without jurisdiction and quash the same and consequently for a direction upon the respondents to restore his pay and other consequential benefits, including seniority and arrears and to pass any such order as may be deemed fit and proper by this Tribunal.
2. The brief facts of the case are that the applicant was appointed in Defence Metallurgical Research Laboratory in the year 1964. The applicant was placed under suspension on 2.8.1976 and two charge memos were issued to him of the same date for similar allegation that the applicant has preferred false medical reimbursement claims during the years 1972 and 1973 and defrauded the Government to the tune of Rs. 96.30p. as per the first charge memo and Rs. 2,532.60p. according to the second charge memo. The applicant has, however, denied the charges. The basis for issuance of such charge memos according to the applicant is that about 300 employees are reported to have submitted false medical reimbursement claims and as such, he is also presumed to have submitted false medical claims as the medical bills were submitted with the essentiality certificate obtained from one of the same panel doctor and the medicines purchased from one of the same medical Halt.
3. The applicant demanded from the respondents copies of all documents mentioned in the charge memo by his letter dated 7.5.1977 on which the respondents have relied to prove the allegations. The respondents, however, through their letter dated 31.5.1977. refused to furnish copies of the documents on the ground that there is no provision under the rules to furnish the said documents and that furnishing list of documents in sufficient compliance with the rules. Thereafter, the applicant requested the respondents to allow him to peruse the document to enable him to submit his explanation and again the respondents through their letter dated 6.7.1977 reiterated that there is no provision for such request. The applicant submitted his explanation denying the charges and asserting that the bills are genuine and that he has not preferred any false medical reimbursement claims. Thereupon, an inquiry officer was appointed by the respondents to inquire into the matter regarding submission of false medical bills for reimbursement.
4. On a batch of writ petitions, the Hon’ble High Court has taken the view that respondent No. 2 was not competent to suspend or take disciplinary action and that only respondent No. 1 is competent to do so.
5. Meanwhile, the applicant filed writ petition No. 5315/82 against the order of suspension and further disciplinary action against him. The writ petition was allowed on 12.10.1982, The respondents preferred an SLP and the same was allowed on 10.4.1990. remitting the matter back to the High Court. The said case stood transferred to this Tribunal and registered as T.A. No. 28 of 1991 for being considered and disposed of.
6. This Tribunal vide their decision dated 4.10.1993 passed in T.A. No. 28/1991 held that if the enquiry is not completed by 31.12.1993 and the applicant is not responsible for the said delay, the order of suspension would stand revoked from 1.1.1994. This Tribunal further ordered that the applicant has to be reinstated in service and the enquiry of course can be proceeded with after 31.12.1993. As the enquiry was not finalised after more than four years, the applicant filed C. A. No. 1510/1998 to quash the charge memo on the ground of delay. The said O.A. was dismissed on 14.2.2000, directing the respondents to complete the disciplinary proceedings as early as possible. The inquiry in both the matters was completed and inquiry reports were furnished. It was held by both the inquiry officers that the charges are not proved. Respondent No. 2 accepted the inquiry report in respect of the first charge memo and dropped the charges in respect of false medical reimbursement claim for Rs. 96.30p. by an order dated 28.9.2001. However, in respect of the second charge memo, respondent No. 2 issued a notice dated 17.4.2000, disagreeing with the finding of the inquiry officer and asked the applicant to submit his representation against the observation of the disciplinary authority, holding the applicant guilty of presenting false medical claims. The applicant submitted his objections to the show-cause notice vide his letters dated 17.8.2001 and 12.9.2001. Thereafter, respondent No. 2 passed the impugned order dated 13.9.2001, imposing the penalty of reduction by two stages for a period of one year and that the entire charge of suspension does not count for seniority or increments, Aggrieved by the said order, the applicant preferred an appeal on 1.10.2001 to respondent No. 1. However, the appeal was dismissed by the said respondent on 8.4.2002. The applicant has thus approached this Tribunal by filing the present O.A.
7. It is the case of the applicant that the respondents have acted on surmises and suspicion and have not produced any valid evidence to establish the charges. It is submitted by the applicant that when respondent No. 2 has disagreed with the finding of the inquiry officer, he cannot proceed on surmises and suspicion instead of on the basis of proof of allegations. According to the applicant, the impugned orders are totally illegal and without jurisdiction and liable to be set aside for the following reasons:
(i) The respondents have not proved the documents evidencing the falsity of essentiality certificate or medical bills as no person connected with the alleged documents were examined. As such, there is no admissible evidence on record to prove the allegation.
(ii) The respondents ought to have seen that once the bills are admitted as per the procedure in vogue and in accordance with the rules, it will be presumed that the bills are genuine and it” any rebuttal evidence is to be adduced, the burden is on the respondent to prove the same as false medical claims and in this case, the respondents have failed to discharge the said burden and, therefore, ought to have dropped the charges.
(iii) The respondents ought to have seen that they are discharging a quasi-judicial function while exercising their disciplinary jurisdiction and their decision has to be objective based on the evidence adduced during the course of inquiry and not on the basis of conjectures and surmises, substituting the proof of allegation by suspension. Therefore, the orders suffer from grave illegality and material irregularity.
(iv) The respondents ought to have seen that they have not furnished the documents relating to the applicant and that they were produced only during the course of inquiry after the inquiry has commenced in the year 1993 and though the inquiry officer could have summoned the doctor and the proprietor of the medical hall, they could not produce the same since the doctor had died and the medical hall was closed and what could not be done by the respondents, the respondents could not have insisted on the applicant to summon those witnesses and the entire orders of the respondent was contrary to established principles relating to the principles of natural justice and reasonable opportunity and as such, the impugned order suffers from illegality and is without jurisdiction.
(v) The respondents ought to have seen that the judgment of the High Court, in similar circumstances, in S.A. No. 919 and 926 of 1979 and 152/1980 filed by other employees, is binding on the respondents and the reasons for allowing the said S.As. and quashing penalties therein to the effect that there is no legal evidence on record to prove the falsity of their document with which the plaintiff therein was concerned also applies to the applicant and they ought to have dropped the charges.
(vi) The respondents also ought to have followed another judgment in O.A. No. 324/1995 dated 9.12.1997 filed by one K. Venkateswara Rao, wherein CAT set aside the punishment holding that the evidence and confessional statements in some other inquiry cannot implicate the applicant therein and that the said applicant has suffered mental agony for more than 20 years.
(vii) The respondents cannot adopt double standards by accepting medical bills issued by the same doctor and medical hall submitted by some employees in their confessional statement as genuine and some other medical bills to he false, merely on the submission of the employees and, therefore, the said confessional statements and documents could not have been relied upon for proving the allegations against the applicant, without actually producing the documents and oral evidence to prove the allegations against the applicant.
(viii) The finding recorded by respondent No. 2 and affirmed by respondent No. 1 are totally not based upon any legal evidence and based on inadmissible documents and surmises and suspicions and as such, they are vitiated by errors apparent on the face of the record and liable to be set aside.
8. It has been stated by the respondents in their counter-reply that prior to the introduction of Central Government Health Scheme (CGHS) in Hyderabad, the employees of DMRL Hyderabad were eligible for reimbursement of medical expenses incurred by them under the provision of CS (MA) Rules. According to the respondents, it was observed during 1970-71 that the number of medical claims preferred by the employees was showing a spurt and hence suspicion arose about the genuineness of the claims. There was a strong suspicion that a close and well knit gang among the staff in the lab has been formed which was able to collude with some of the authorised medical attendants and some of the authorised medical shops to fradulently draw money from the Government. The CBI, Hyderabad was asked to investigate into the racket and the report of the CBI clearly brought out the modus operandi of the racket and a list of 120 employees suspected of having submitted false medical claims in collusion with some authorised medical attendants and medical shops. The list was not complete as the CBI investigations were confined to only a few authorised medical attendants and only one medical hall. From this report it was apparent that the claims of other employees whose names were not included in the CBI’s report but who had submitted medical claims on the same pattern, were also not entirely free from doubt. Besides the report of CBI, the Director of Medical Services, Andhra Pradesh, Hyderabad, deleted the names of a number of doctors indulging in this malpractise from the list of AMAs. As a follow up action on the CBI report, a Court of enquiry was appointed to inquire into all matters concerning medical reimbursement cases At the same time, the employees of the laboratory were also invited to palce before the Court of enquiry whatever information they had about the false medical claims. In response to this invitation, 373 employees appeared before the Court of enquiry and voluntarily confessed their guilt of preferring false medical claims and also agreed to refund the amount to the Government which they had claimed fraudulently.
9. The applicant, however, did not appear before the Court of enquiry though, according to the respondents, he preferred medical reimbursement claims on the same pattern. The applicant’s name is also found in the above mentioned list of 120 employees submitted by the CBI. As such, the applicant was placed under suspension w.e.f. 2.8.1976. pending inquiry into the charges of preferring false medical reimbursement claims during the years 1972 and 1973. The applicant was issued two charge memos, one dated 29.4.1977 for preferring false medical reimbursement claims for Rs. 96.30p. and the second, for preferring false medical reimbursement claims for Rs. 2,532.60p. on denial of the charges, inquiring authority was appointed. One Inspector from CBI presented the case in respect of charge sheet prepared by the CBI and one officer of DMRL was appointed as Presenting Officer to present the case in respect of the second charge memo.
10. The applicant questioned the powers of Director as disciplinary authority and filed Writ Petition No. 5315/82 in the Andhra Pradesh High Court and a Division Bench of the High Court allowed the writ petition. Thereafter an SLP CA No. 3521 of 1982 was filed in the Hon’ble Supreme Court against the judgment of the High Court. The matter was decided on 10.4.1990 by the Hon’ble Supreme Court declaring the Director as disciplinary authority.
11. Inquiries were resumed on 30.9.1992 by appointing fresh inquiry officers. The writ petition remitted back by the Supreme Court for deciding on merits on the basis of their judgment was dismissed by the Hyderabad Bench of CAT with the direction to complete the inquiry proceedings expeditiously. As per the order of this Tribunal dated 4,10.1993, the applicant was taken back on duty from 1.1,1994, revoking the suspension order and the inquiry continued.
12. The inquiry in respect of charge memo at (i) was completed and the report was received in September, 1994. The inquiry officer had, given a finding that the charge was not proved as certain documents and witnesses could not be produced by the CBI.
13. The applicant filed O.A. No. 653/2000 against the notice dated 17.4.2000 of the disciplinary authority and obtained a slay. The O.A. was disposed of on 31.7,2001 with a direction by the C.A,T. that the disciplinary authority will pass final orders within 30 days of the date of receipt of explanation from the applicant. The applicant submitted his explanation on 17.8.2001 stating that the inquiry report in the other case was accepted though the CBI could not bring the witnesses, he is not able to bring the witnesses in this case as the case is 25 years old and the doctor expired 5 years back and requested one month’s time for giving the explanation and also to allow him to go to Court. After considering the explanation dated 17,8.2001, Director DMRL passed the final order dated 13.9.2001, imposing a penalty of reduction of pay by two stages from Rs. 6050/- p.m. to Rs. 5750/- p.m. in the scale of Rs. 5000-150-8000 for a period of one year with cumulative effect. The applicant submitted an appeal dated 1.10.2001 to respondent No. 1 i.e. the appellate authority, who rejected the appeal vide his order dated 8.4.2002.
14. The respondents have denied the allegations made by the applicant that the respondents have acted on surmises and suspicion and have not produced any valid evidence to establish the charges. In this regard, the respondents have submitted that the applicant was given full opportunity to defend his case by supplying him copies of confessional statements of 26 employees who confessed their claims brought from same doctors and medical halls as false and other relevant documents. The purpose of the inquiry was to inquire into the truth whether the applicant had actually visited the doctors and purchased the medicines from the medical halls who had issued I also essentiality certificates and cash memos to other 26 employees, but he failed to produce any oral or documentary evidence to establish that his claims are genuine.
15. The charge against the applicant is that he had submitted medical bills from the same doctors and medical halls from whom other 26 employees had submitted and confessed them as false. Statement of the witness on behalf of the disciplinary authority was also recorded. However, the applicant failed to cross examine the witness in spite of repeated opportunities given by the inquiring authority and also failed to produce any evidence or witnesses on his behalf in support of his defence to establish that his bills were genuine.
16. The Id. Counsel for the applicant has relied upon a decision of the Hon’ble Supreme Court reported in 1999(2) SCC 10; Kuldeep Singh v. Commissioner of Police and Ors., and the Daily Order Part-II dated 27th August, 1976, of the Defence Metallurgical Research Laboratory, in support of his arguments.
17. The learned Counsel for the respondents has brought to our notice the decision of this Tribunal dated 22nd November, 2002 in O.A. No. 187 of 2001 (K. Balasunder v. UOI and Ors.), wherein on similar facts, this Tribunal had observed as follows:
“It is now well established that adequacy of evidence is not a matter for consideration in a proceeding under Article 226 of the Constitution of India and the Courts/ Tribunals will interfere only in a case where mere is no evidence in support of the findings. Since in the instant case the evidence placed on record clearly established that the majority of employees of DMRL during the relevant period made false medical claims and have admitted the said facts before the Court of Inquiry and refunded the amounts in easy instalments and it is further found that the applicant obtained the essentiality certificates and cash memos from the same doctors and the medical halls who furnished false documents during the relevant period and it is further established that the applicant made claims in the same pattern of the false claims made by the other employees, it cannot be said that the disciplinary and appellate authorities were not justified for the above material placed on record, in drawing a reasonable inference that the claims made by him are also false and in holding that the charges are proved. Further, it is not established by the applicant from the evidence adduced by him during the inquiry that in his case, the documents issued to him by the same doctors and medical halls are true and genuine. For all the above reasons, we find that there are no grounds to interfere with the impugned orders passed by the disciplinary and appellate authorities.”
The said O.A. was accordingly dismissed by this Tribunal.
18. The respondents have, therefore, submitted that the applicant has not made out any case in support of his claim that the medical claims made by him were genuine and as such, the penalty imposed by the respondent-authorities upon the applicant was quite in order.
19. The learned Counsel for the applicant, however, submitted that the major penalty imposed upon the applicant was too excessive, whereas oilier employees who had made similar medical claims, which they admitted to be false, were imposed with minor penalty. As such, the applicant may also be imposed with a minor penalty and his suspension period may be treated as on duly, which may entitle the applicant with necessary promotion at per with his juniors.
20. We have considered all facts of the case and the materials placed before us, including the judgments relied upon by learned Counsel for both sides, as also the arguments advanced by the learned Counsel for the applicant and the learned Counsel for the respondents.
21. We find that the respondents had produced all available evidence during the inquiry. As such, it was entirely upon the applicant to dispute the charge and to prove his innocence, which the applicant failed to do so and also produce necessary witnesses of documents. Thus the charge framed against the applicant that he had submitted false medical claims from the-same doctors and medical halls who were in the habit of issuing false essentiality certificates and false cash memos, confessed by atleast 26 other employees of the Laboratory, was established and the applicant was given opportunity to produce evidence to the effect that he visited the doctors and purchased medicines from the medical hulls in order to disprove the charges. However, in the absence of any such evidence, the disciplinary authority had to come to the conclusion that the charge is proved on the basis of circumstantial evidence and preponderance of probability. Moreover, the decision of this Tribunal dated 22.11.2002 in O.A. No. 187/2001, having similar facts, is also very relevant in deciding the instant O.A. We, therefore, do not find any ground to interfere with the impugned orders passed by the disciplinary and appellate authorities. In our view, the penalty imposed upon the applicant is not excessive considering the misconduct committed by him. The same, is, therefore, upheld.
22. In the result, this O.A. is found to be devoid of merits and it is, therefore, liable to be dismissed. The O.A. is accordingly dismissed with no order as to costs.