ORDER
Neena Ranjan, Member (A)
1. This common order will decide two OAs bearing No. 2618/2006 and No. 2703/2006, since common question of facts and law are involved therein.
2. Present OAs are filed challenging the order dated 25.10.2006 whereby respondents have purported to pass an order deciding to hold disciplinary proceedings against applicants and order dated 8.11.2006 placing them under suspension. Applicants are challenging the aforesaid order and the charge-sheets, inter alai, on the grounds that they are incompetent and invalid containing vague allegations without material particulars as to how applicants were declared ineligible in the first place or how they managed to have their applications allowed and called for interview as apparent from the reading of the statement of imputations itself. The challenge is also made on the ground that the decision has been made with a mala fide motive and in colourable exercise of power, which cannot be allowed in law.
3. The material facts, in brief, are as follows:
(i) that applicants were initially appointed as casual artists in the Song and Drama Division (S&DD) of respondents between the periods July, 1994 to July, 2001. Each of applicants had been working for more than 120 days in each year with the respondents after having been selected through a duly approved Screening Committee;
(ii) that some of the casual artists filed OA bearing No. 1115/1997 seeking regularization of appointment which was partly allowed on 5.6.1998 directing respondents to frame a scheme to consider casual artists in S&DD for appointment as regular staff artists by amending the Recruitment Rules. In pursuance to the aforesaid judgment, respondents framed a proposed Scheme for such a regularization. The said Scheme was also published in the News Paper in which it was clearly mentioned that the qualification can be relaxed for SC/ST which was ultimately approved by the respondents (Annexure-5);
(iii) that vide a Notification dated 8.7.1997, respondents approved the constitution of the Selection Committee for the staff artists cadre of the S&DD. Applicants appeared before the Selection Committee, were duly selected and were also issued appointment letters. It will be pertinent to mention here that before issuance of appointment letters, a note was put up with regard to educational qualification in respect of applicants No. 1, 2, 3, 5 and 8 wherein it was mentioned that educational qualifications in respect of the above five applicants may be relaxed;
(iv) that by order dated 10.4.2003, applicants were informed that they had successfully completed the probation and are confirmed in the said grade with effect from the dates mentioned in the order, which is at Annexure A-8;
(v) that on 10.8.2006 an application was filed under the Right To Information (RTI) by one Shri Madan Lal, who was informed that the appointments of applicant Nos. 1 to 6 and 8 were made in accordance with the rules and pursuant to the orders of the Tribunal their appointments were duly approved by the Selection Committee;
(vi) that applicants were shocked to receive an order on 25.10.2006 informing them that disciplinary proceedings were proposed to be held against them and subsequently by order dated 9.11.2006 they were placed under suspension w.e.f. 8.11.2006;
(vii) that applicants received charge-sheets dated 8.11.2006 along with statement of Articles of Charge and the imputation of misconduct purportedly issued by the ad hoc disciplinary authority. A reading of the Article of Charge would show that the same was issued by an incompetent authority and contains vague allegations without material particulars. On conclusion of the same, it was clearly mentioned therein that the disciplinary authority had predetermined the issue and as such it is submitted that the charge-sheets have been issued with a mala fide intention and in colourable exercise of power as it is the stand of the respondents themselves that the appointments of applicants are proper and regular;
(viii) that by letter dated 17.11.2006 the applicants have individually pointed out to the respondents specifically the fact that applicants were duly appointed by a Selection Committee and in pursuant to that, a Scheme was framed in accordance with Tribunal’s directions. Applicants also requested for copies of the documents relied upon by respondents annexed with the the charge-sheets and reserved their right to furnish further reply only after receipt of such documents;
(ix) that instead of providing copies of the aforesaid documents and to give opportunity for being heard in person, respondents by letter dated 27.11.2006 informed applicants that it has been decided to hold enquiry into the charges and accordingly appointed a retired Group ‘A’ Officer of Union of India as the Inquiring Authority;
(x) that applicants have heavily argued that experience which they have gained will entitle them to be given relaxation in lieu of qualifications and the same should not act as a bar in regularizing them. Hence, applicants have prayed for the following reliefs:
(a) Quash the impugned orders dated 25.10.2006 and 8.11.2006 of the respondents deciding to hold disciplinary proceedings against the applicants and the charge-sheets issued pursuant thereto.
(b) Pass such order, which this Tribunal deems fit and proper.
4. In view of the above it is prayed that the OAs be allowed with costs.
5. Respondents by filing the counter-affidavit, have stated as follows:
(i) that on 6.3.2006 one Shri Madan Lal submitted an application under RTI Act, 2005 seeking some information from respondent No. 1. The Vigilance Section, Assistant Director (Administration) and the Information Officer in the office of respondent No. 2 put up a detailed note after thoroughly examining the case of the Director. Shri Prem Matiyani was the Director, S&DD then. As he was personally concerned with the matter as the Selection Committee Chairman and Appointing Authority, instead of sending it to the office of respondent No. 1, he put a hurdle in sending the matter to respondent No. 1. He was fully responsible for not passing the information to respondent No. 1 but respondent No. 1 in July, 2006 insisted that Shri Prem Matiyani should furnish the information. Shri Matiyani got the matter investigated by the Administrative Section instead of Vigilance Section to try to escape from the irregularities, which he had committed. In the draft note Shri Matiyani had made corrections in his own handwriting which clearly prove that he had not passed the correct information to respondent No. 1 about the professional qualifications of the candidates, including applicants, which clearly indicate that they were not eligible to be appointed to the said posts. He also prepared false/wrong information on all other items sought to by Shri Madan Lal.
(ii) that there are many complaints against Shri Prem Matiyani, the then Director Song and Drama Division including the irregularities committed by him at S&DD, Shimla. CBI as well as CVC made recommendation to start departmental proceedings against him vide which he was placed under suspension on 4.8.2006 which was reviewed and extended for a further period of 180 days beyond 21.10.2006;
(iii) that vide order dated 25.10.2006 including 17 officials which included the applicants who were appointed to the said posts inspite of the fact that they were ineligible but were appointed because Shri Prem Matiyani functioned as Appointing Authority. Out of 17 persons, 16 were placed under suspension including the applicants. All the 17 persons were issued memoranda of charge, which was denied to by them but proceedings are continuing;
(iv) that in the charge it is stated that as applicants did not fulfil the educational qualifications and other technical qualifications, they were issued memoranda of charge under Rule 11 of CCS (CCA) Rules, 1965 to terminate their service;
(v) respondents have relied upon a case entitled Union of India v. Upendra Singh (1994) 27 ATC 200 (SC) and Secretary to Government Prohibition & Excise Department v. L. Srinivasan and submitted that the OAs deserve to be dismissed.
6. In view of the above it is prayed that the OA be dismissed with costs.
7. We have heard the learned Counsel for the parties and perused the record.
8. It is now well settled that the Tribunal in exercise of its power of judicial review does not have jurisdiction to go into the correctness or truth of the charges, which are within the executive powers of the disciplinary authorities. The Tribunal can interfere with the charges at the threshold ‘only if all the charges (read with imputation or particulars of the charges, if any) no misconduct of other irregularity alleged can be said to have been made out or charges framed are contrary to any law’. (See Government of Tamil Nadu v. K.N. Ramamurthy , Union of India v. K.K. Dhawan and Union of India v. Upendra Singh (1994) 27 ATC 200 (SC). In H.B. Gandhi, Excise and Taxation Officer cum Assessing Authority, Karnal v. Gopi Nath and Sons 1992 Supp (2) SCC 312, the Supreme Court has laid down the parameters of power of the judicial review of the Courts in the following words:
Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
9. In the case of Upendra Singh (supra) the Supreme Court observed, that a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is understandable how that can be done by the Tribunal at the stage of framing of the charges. The Court also observed that the truth or otherwise of the charges is a matter for the disciplinary authority to go into and not the Court.
10. In view of the above, we are of the considered view that no illegality or misconduct has been shown by the applicants vis-a-vis the action taken by the respondents at this initial stage. Hence, without interfering at this interlocutory stage, we dispose off this OA with a direction to the respondents to complete these proceedings within six months. The applicants are also directed to bring the facts of their defence as placed before the Tribunal before the respondents and to fully co-operate in the disciplinary proceedings. Nothing shall be construed as a finding on merits of the case.
11. The OA is disposed off with the directions as laid down in para 10 above. No costs.
Let a copy of this order be placed in OA 2703/2006.