ORDER
V. Srikantan, Member (A)
1. The applicant in the above application has sought for the quashing of his termination order dated 16.4.2001 passed by the Disciplinary Authority and also of the appellate order dated 10.8.2001 and for a direction to the respondents to reinstate him in service with full back wages from the date of termination till the date of reinstatement.
2. The brief facts as mentioned by the applicant are that vide appointment order dated 20.2.91, the applicant was appointed as maintenance Foreman-cum-care taker (Annexure A-1) and the applicant reported for duty on 1.3.91 (Annexure A-2) and had been discharging his duties efficiently thereafter. On 13.7.99, a notice was issued by the Vice Principal of the Institute requiring each student to pay a sum of Rs. 200 towards refundable deposit towards the locker facilities to be provided to the students to keep their belongings and a copy of the notice was sent to the applicant to collect the same (Annexure A-3). As there was no instructions given as to how the money collected should be credited to any account, the applicant was holding the amount collected from the students. When this was the position, the applicant received a memo dated 6.11.2000 in which four charges were levelled against the applicant stating that the applicant had failed to deposit the money collected from the students towards security deposit of lockers provided to the students (Annexure A-4). Another memo was issued on 7.11.2000 calling upon the applicant to hand over the list of lockers with the names of the students occupying these lockers (Annexure A-5). The applicant furnished a reply to the memos in which he did not admit any of the charges made by the respondents and also enclosed the list of students who had deposited the locker money and also agreed to furnish the correct account at the clearing time vide letter dated 15.11.2000 (Annexures A-6 & A-7). Subsequently, the applicant deposited the refundable deposits collected from 37 students (Annexures A-8 & A-9) and thereafter in respect of 55 more students (Annexures A-11, 12 & 13). However, through letter dated 16.4.2001, the applicant was informed that his services are being terminated with immediate effect. Aggrieved by the order of termination, the applicant has filed this O.A.
3. It is the contention of the applicant that he had been authorised to collect the refundable security deposit amounts towards the lockers and that in the absence of instructions as to how the amounts so collected were to be deposited, he had no alternative but to retain the same. On receiving further instructions he immediately made the deposit and the entire amount had been deposited. Accordingly, the applicant contends that there has been no lapse on his part. Further, without giving any notice or opportunity of holding a proper enquiry, the services of the applicant have been terminated by the order dated 16.4.2001 and no enquiry was initiated and no opportunity for being heard was granted to the applicant and hence, the order of termination is violative of the principles of natural justice. Moreover, the applicant not having admitted the charges, but having contested the same, a fullfledged enquiry ought to have been held by the respondents.
4. The respondents in their reply have stated that only the cashier is authorised to collect cash on behalf of the institute and a copy of the notice marked to the applicant did not authorise the applicant to collect the cash from the students, but had been sent to him since lockers had to be issued after payment of locker deposit at Institute Cash Counter. This being the position, there was no need for any instructions regarding the head of account to which the money collected was required to be remitted as the applicant had not been authorised to collect any money. Accordingly the applicant had unauthorisedly collected the money from the students for the refundable locker deposit and was holding the same unauthorisedly for more than a year, i.e. from July, 1999 till November, 2000. Moreover, the applicant had not denied the charges made against him in memo dated 6.1-1.2000 in his reply.
5. Further, the applicant had deposited the unauthorised amounts retained by him in two instalments in November, 2000 and March, 2001 only after the charge memo dated 6.11.2000 was issued. This is a clear indication of his doubtful integrity and dubious designs and the act of retaining the money collected for more than 16 months amounts is misappropriation and embezzlement of office money. The applicant had also been given an opportunity to appear before the Board for placing his defence if any which was held on 31.3.2001 but the applicant failed to appear before the Board. The appeal of the applicant dated 20.4.2001 was also considered by the Board in its meeting on 16.7.2001 which reconfirmed the decision earlier taken for terminating the services of the applicant.
6. Regarding the holding of a departmental enquiry, the respondents have stated that the respondents organisation is a society registered under the Societies Act and the applicant is not holding any civil post under Union of India and hence he is not entitled for a detailed departmental enquiry as required under Article 311 (2) of the Constitution. Further, sufficient opportunity was afforded to the applicant including personal hearing but he had failed to utilise this opportunity.
7. Heard both the Counsels and perused documents on record.
8. The case of the applicant is that he had not admitted any of the charges levelled by the respondents in the memo dated 6.11.2000 in his reply dated 15.11.2000 and hence the contention of the respondents that he had accepted the charges levelled against him is not correct. The Board proceedings held on 16.4.2001 in which it was decided to terminate the service of the applicant with immediate effect are also available at Annexure A-14. In Para 5 of this proceedings, it has been stated that the applicant has unequivocally admitted the misconduct/charges as enumerated in the office memorandum dated 6.11.2000. The applicant’s reply to the memo dated 6.11.2000 vide his letter dated 15.11.2000 is extracted as under:
“Reference made to Office Memo No. 798/2000-01 dated 6.11.2000, I am enclosing the list of the students deposited the locker money. Rest not paid and they put their own lock. Last year same locks are removed by the students. The correct account will be made available during clearance time.”
A reading of the above reply does not confirm the stand of the respondents made in the Board meeting that the applicant had unequivocally admitted the misconduct/charges. This being the position, a regular departmental enquiry should have been held. It has however been contended by the respondents that the applicant is not entitled for a detailed departmental enquiry as the applicant is not holding any civil post under the Union of India. This contention is also not borne out by the facts on record. In Para 7 of the Board meeting held on 16.4.2001, it has been stated as under:
“Mr. M. Ayyanna (applicant) has therefore acted in contravention of the staff regulations of the IHMCTN (Karnataka) Society, Bangalore and Section 3(1)(i)(iii) of CCS (Conduct) Rules.”
It is clear from the statement that in the respondent organisation, the rules as applicable to Government servants is being followed as there is a clear mention of CCS (Conduct) Rules. This being so, the CCS (CCA) Rules would also be applicable in the respondent organisation and the applicant in terms of these rules was entitled to a regular enquiry as he had not admitted the charges levelled against him. The respondents have produced the staff regulations applicable in the respondent organisation. It is seen from Para 17 that the CCA Rules are applicable in the respondents organisation and Para 18 of the above rules clearly states that no major penalty shall be passed except after an enquiry is held. In this view of the matter, holding a regular departmental enquiry was mandatory in the case of the applicant. Counsel for the respondents had accepted this position and suggested that the matter may be remitted back for holding a regular enquiry.
9. For the above reasons, we find merits in the application. Accordingly, the termination order dated 16.4.2001 and the Appellate Authority’s order dated 10.8.2001 re-confirming the termination are quashed as they are not sustainable as no enquiry was held before they were issued and the respondents are directed to reinstate the applicant into service. It is open to the respondents to initiate a regular enquiry against the applicant should they wish to do so after his reinstatement. This direction to be complied with within two months from the date of receipt of a copy of this order. The applicant has also sought for full back pay from the date of termination till reinstatement. This Tribunal is not inclined to grant this relief as no duties would have been performed by the applicant till reinstatment. No costs.
Mukesh Kumar Gupta, Member (J)
10. I have had the advantage to read the draft order prepared by my esteemed brother, Shri V. Srikantan, Member (A). Though I agree in principal about the findings that the Disciplinary Authority as well as the appellate order are liable to be quashed and the applicant is entitled to be reinstated, but I wish to add certain more reasons in support of the said findings. As noticed hereinabove, in Para 5 of the impugned order dated 16.4.2001 (Annexure A-14) the Disciplinary Authority has noted that since the applicant has unequivocally admitted the misconduct/ charges as enumerated in the office memo dated 6.11.2000, “holding of detail enquiry have been found to be unnecessary. I have seen the reply to the memo dated 6.11.2000, which was submitted on 8.11.2000 and with pains it is noticed that the said finding recorded by the Disciplinary Authority is perverse and based on no record. Similarly, the Disciplinary Authority in Para 7 of the said order has stated that the applicant “acted in contravention of the Staff Regulations of the IHMCTAN (Karnataka) Society, Bangalore and Section 3(1)(i) & (iii) of Central Civil Services (Conduct) Rules”. From the perusal of the Regulations 6 of the Institute of Hotel Management, Catering Technology and Applied Nutrition (Karnataka) Society (Staff) Regulations, 1993, it will be seen that the provisions of CCS (CCA) Rules, notified by the Central Government are applicable to the staff employed with respondents. The said Regulation 6, which fall under Chapter III reads as under :
6. General Conditions of Service–In all matters relating to service conditions such as fixation of pay; increments; counting of service for increments; compulsory deductions; option deductions; grant of special pay; personal pay; honorarium and fee; dearness allowance; additional dearness allowance; interim relief; Leave Travel Concession; Compensatory Allowance; House Rent Allowance; Children Education Allowance; House Building Advance; Festival Advance; Advances for purchase of Conveyances; Travel and Admissibility of Travel Allowance; Classification, Control and Appeal Rules; Conduct Rules; Contributions to Contributory Provident Fund; Joining Time; Leave Entitlement and conditions for grant of various kinds of leaves; Medical Rules; Gratuity and Terminal Benefits etc.; the Central Government Rules on the subject, as applicable to comparable categories of Central Government employees/servants, shall Mutatis Mutandis be applicable to the corresponding categories of the employees of the Society subject to any orders/amendments/instructions issued by the Central Government on the relevant subject from time to time, except that where the Board of Governors, with the approval of the Central Government adopts a specific provision/rule in respect of any specific service matters, the employees of the institute shall be subject to those provisions in respect of such specified matters.
Note: (1) The above list is only illustrative and not exhaustive. All matters which may not have been spelt out above shall also be regulated in the same manner as in the case of Central Government servants of corresponding categories.
(ii) Employees of the institute shall be eligible to contribute to contributory provident fund under the terms and conditions as laid down in Contributory Provident Fund (India) Rules, 1962 as amended from time to time.
11. As it was pointed out to the learned Counsel for the respondents that under Regulations 6 provisions of classification, Control and Appeal Rules have to be observed before imposing the impugned penalty, the learned Counsel made an attempt to justify the respondent’s action in imposing the penalty of terminating from service by referring to Sub-para 8 of Regulation 5, which reads as under:
(viii) Termination of services :
(a) (i) No employee’ other than a person on deputation from the Central Government of any State Government or an institute shall leave or discontinue his service in the institute except after giving one month’s notice in writing of his intention to do so to the Principal.
(ii) Provided further that where an employee has completed the period of probation and stands confirmed, the period of such notice shall be three months. (iii) However, if an employee wants to leave service instantaneously, he may be permitted to do so by depositing with the institute pay and allowances for the period of notice, as the fase may be. (iv) Provided that the Appointing Authority may, for reasons to be recorded in writing, waive, either wholly or in part, at the requirement as to payment of such compensation. (b) (i) The institute may at any time and without assigning any reason, terminate the services of any employee who has not completed his probations, after giving one month's notice in writing or a month's pay and allowances in lien thereof. (ii) The institute may at any time and without assigning any reason terminate the services of an employee who has completed period of probation and stands confirmed by giving him three months notice or pay and allowances thereof. (c) In case of Group 'C' and Group 'D' employees the Principal shall be the Competent Authority while Executive Committee for Class 'B' posts and above, shall be the Competent Authority. However, the Executive Board of Governors has accorded its approval in this behalf. (d) Nothing contained in these Regulations shall affect the right of the Appointing Authority to retire, remove or dismiss an employee without giving any notice or pay in lieu of notice in accordance with the provisions of relevant rules concerning conduct and discipline of employees.
12. In my opinion the said Sub-para-8 of Regulation 5 is not applicable in the facts of the present case in as much as neither any notice for terminating his services was issued as required under the said regulation nor any amount as stated therein was paid to the applicant. Therefore, the impugned penalty of termination, which is not specified penalty under regulation is untenable in law.
13. As could be seen from the perusal of Rule 14 of CCS (CCA) Rules, it is mandatory on the part of Disciplinary Authority before imposing major penalty on an employee, to hold an inquiry. The rule requires that an inquiry shall be held on the basis of definite charges to be framed by the Disciplinary Authority. As noticed, neither any charges have been framed nor an enquiry has been held on the specious plea that in view of unequivocal admission of the applicant, the holding of inquiry have been found to be unnecessary, which finding is perverse and not supported by the material on record. It is settled law laid down by the Hon’ble Supreme Court in AIR 1964 SC 358, State of U.P. v. Singhara Singh that where a power is given to do certain things in a certain manner, the thing must be done in that way alone. It is further settled law as laid down by Hon’ble Supreme Court in catena of cases that the Court/Tribunal normally should not interfere unless such findings are based on no evidence and are perverse/illegal/ untenable. The Hon’ble Supreme Court in Kuldeep Singh v. Commissioner of Police and Ors., 1999 Vol. 2 SCC 10=1999(3) SLJ 111 (SC) has held that the Courts “can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority”. It would also be relevant to extract the Paragraphs 7 & 8 of the said judgment which read as under:
“7. In Nand Kishore Prasad v. State of Bihar it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character, and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the quilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.
8. The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain and Bharat Iron Works v. Bhagubhai Balubhai Patel. In Rajinder Kumar Kindra v. Delhi Administration it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial Tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers, from the additional infirmity of non-application of mind and stands vitiated.”
(Emphasis supplied)
The perusal of the law laid down by the Hon’ble Supreme Court in the above case would show that whenever the findings of the misconducts are not based on legal evidence and they are based on conjectures and surmises, the enquiry proceedings can be interfered. If a decision arrived is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order could be termed as perverse. In the present case it is seen that the said findings recorded and statement made in Para-5 of impugned order dated 16.4.2001 is based on no material and is perverse on the face of it. As such in the circumstances, we are justified in interfering with the punishment order particularly with reference to Regulation No. 6. The action taken by the respondents in the present case is nothing but a malafide in law. It is settled law laid down by the Supreme Court in Tandon Brothers v. State of West Bengal, 2001(5) SCC 664, that where the Government action runs counter to good faith and is not supported by the reasons, it cannot be but described as malafide.
From the perusal of the Rule 11 of CCS (CCA) Rules, which enumerates various penalties which could be imposed upon a Government servant, it could be seen that “Termination” is not one of the specified penalty. The said Rule 11 reads as under:
“11. Penalties
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:
Minor Penalties :
(i) Censure; (ii) withholding of his promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iii) (a) reduction to a lower stage in the time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension. (iv) withholding of increments of pay; Major Penalties : (v) save as provided for in Clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (vi) reduction to lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post of service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; (vii) compulsory retirement; (viii) removal from service which shall not be a disqualification for future employment under the Government." As such the penalty of termination imposed by the Disciplinary Authority vide proceedings dated 16.4.2001 is illegal and untenable. It also shows total non-application of mind, and therefore is untenable in law.