ORDER
M. Jayaraman, Member (Admn.)
1. Heard Shri M. Venkanna representing Dr. A. Raghu Kumar, learned Counsel for the applicant and Shri C. Yadagiri, learned standing Counsel for the respondents.
2. The present OA has been filed by the applicant with the prayer to quash the charge memo dated 25.9.96 for the reason that the said memo has been issued on the same charge as the earlier charge memo dated 29.5.1991 which has not reached its logical end, inasmuch as, the revisionary authority, who was directed by the Hon’ble Tribunal in OA 255/99 by Order dated 14.3.2000 to take a final decision in the light of the observations by the Hon’ble Tribunal, but has remitted the matter back to the disciplinary authority i.e., the 4th respondent herein vide order dated 31.7.2000. The additional ground adduced is that the impugned charge memo has been issued after a lapse of six years which is not attributable to the applicant.
3. The brief facts of the case here are that the applicant originally joined the office of the Director of Postal Accounts as Lower Division Clerk on 24.1.1978. While he was functioning as Senior Accountant at Hyderabad, he was also acting as the office bearer of the All India Postal Accounts Employees Association, Hyderabad Branch since 1986. On 22.4.1991 the applicant was alleged to have participated in a demonstration and the respondents issued Charge Memo dated 29.5.1991 (Annexure II to the OA). On denial of the charge by the applicant, the respondents appointed an Inquiry Officer who submitted the inquiry report on 30.12.1994 which was supplied to the applicant on 10.1.1995. Finally, the 3rd respondent, vide proceedings dated 15.5.1996 (Anexure III to the OA), imposed a penalty of reduction of pay by one stage from Rs. 1800/- to Rs. 1750/- in the pay scale of Rs. 1400-2600 for a period of one year with immediate effect, with a further direction that the applicant would not earn increments of pay during the period of reduction and that on expiry of this period the reduction will have the effect of postponing his future increments of pay. Aggrieved by the said penalty order, the applicant preferred an appeal to the 2nd respondent who upheld the orders of the 3rd respondent. The applicant thereafter submitted a revision petition to the Member (Personnel) of the Postal Board which was rejected by him, upholding the action of the 2nd and 3rd respondents. Aggrieved by the said order, the applicant filed OA 255/1999 before this Hon’ble Tribunal which was disposed of on 14.3.2000 setting aside the revisioning authority’s order dated 18.5.1998 and remitting back the matter to the Member (Personnel), Postal Service Board, with a direction that a final decision should be taken by the Member (Personnel) within a period of two months from the date of receipt of a copy of that order and the applicant, if so advised, was directed to submit a detailed revision petition in addition to what he has already submitted, within a period of one week from the date of the order viz., 14.3.2000. The applicant accordingly submitted further review petition on 20.3.2000. The 2nd respondent, vide order dated 31.7.2000, remitted back the matter for initiating fresh proceedings under Rules 14 and 18 by a competent disciplinary authority as per the rules in force, in exercise of the powers conferred vide Rule 29 of CCS (CCA) Rules, 1965. The 4th respondent issued the charge memo dated 25.9.2006, after a lapse of about six years of the order of the 2nd respondent dated 31.7.2000. The applicant submitted representations on 6.10.2006 and 13.11.2006 which are still pending with the 4th respondent. The applicant submitted that the respondents are going ahead with the impugned charge memo dated 25.9.2006 by appointing an inquiry officer and presenting officer vide orders dated 19.10.2006 and 28.11.2006. Hence, the present OA has been filed.
4. The applicant has adduced the following grounds in support of his prayer:
(i) There is no provision in the rules for the respondents to conduct repeated inquiries on the same charge. He relied on the decisions of the Hon’ble Apex Court in the case of State of Assam v. J.N. Roy Bishwas reported in AIR 1975 SC 277; and K.R. Deb v. The Collector of Central Excise, Shillong wherein it was held that Rule 15 of CCS (CCA) Rules does not contemplate successive inquiries. The same legal position was re-affirmed by the Hon’ble High Court of Andhra Pradesh in the case of P. Rama Rao v. A.P. State Agro Industries Development Corporation Ltd. and Anr. reported in 1997 (5) ALD 325; and B. Balakishan Reddy v. Andhra Pradesh State Electricity Board .
(ii) The impugned action of the respondents is illegal and barred by latches and limitation in view of the fact that the Hon’ble Tribunal directed the 2nd respondent to take a final decision within a period of two months from the date of receipt of the copy of the order dated 14.3.2000 whereas the present impugned charge sheet dated 25.9.2006 was issued after almost 15 years of the alleged incident and after a lapse of six long years of the issue of the order of the 2nd respondent dated 31.7.2000 directing for fresh inquiry. The respondents did not seek leave of this Hon’ble Tribunal for issuing the present impugned proceedings.
(iii) The Tribunal did not give any liberty to the respondents to initiate fresh proceedings and as such the action of the respondents in issuing the impugned fresh charge memo is illegal, arbitrary and violative of Articles 311 of the Constitution of India and also violative of the directions of this Hon’ble Tribunal.
(iv) The applicant was subjected to hostile discrimination as he was an office bearer of All India Postal Accounts Employees Association, Hyderabad Branch. The applicant submitted that he has done all his activities in pursuance of the objectives of the Trade Union.
(v) The action of the revisionary authority in remitting the case back to the disciplinary authority i.e., the 4th respondent herein is not what he was directed to do and ultra vires his powers and therefore liable to be set aside.
5. The above contentions of the applicant have been repelled by the respondents who have filed a detailed reply statement. It is submitted that the applicant, while working as Senior Accountant, organized and participated in the Gherao of the then lady Director of Accounts (Postal), Hyderabad on 22.4.1991 in her chamber and incited the staff to agitate against her by shouting slogans causing disturbance to the order in the office premises and thus violated the provisions of Rule 7(1) of CCS (Conduct) Rules. As such, the Director of Accounts (Postal), in the capacity of disciplinary authority issued a charge sheet under Rules 14 and 18 of the CCS (Conduct) Rules. On conclusion of the proceedings against the applicant, a penalty of reduction of pay by one stage from Rs. 1800 to Rs. 1750/- in the pay scale of Rs. 1400-2600 for a period of one year with cumulative effect was imposed vide proceedings dated 15.5.1996. Aggrieved by the punishment order, the applicant preferred an appeal before the appellate authority who upheld the penalty orders rejecting the appeal of the applicant. The revision petition submitted by the applicant was rejected upholding the orders of the appellate authority. The applicant filed OA 255/1999 which was disposed of by this Hon’lble Tribunal by setting aside the orders of the revisionary authority dated 18.5.1998 remitting the case back to the revisionary authority for taking a final decision with a direction to the revisionary authority to consider whether disciplinary proceedings initiated by the then DA(P), who was a party to the case, were in order. The Hon’ble Tribunal also advised the applicant to submit a detailed review petition in addition to what had already been submitted. Accordingly, the applicant submitted review petition dated 20.3.2000. The revisionary authority, in exercise of the powers conferred vide Rule 29 of the CCS (CCA) Rules, 1965 ordered that the case be remitted back for initiating fresh proceedings under Rules 14 and 18 by a competent authority as per rules in force. Accordingly, the Director of Accounts (Postal), Hyderabad issued a fresh charge sheet under Rule 14 vide memo dated 25.9.2006 which is impugned in the present OA.
6. The respondents have further submitted that the main contention raised by the applicant in OA 255/1999 was that the disciplinary authority who passed the punishment order was lower in rank than the initial appointing authority and that the Director of Accounts (Postal) was allegedly gheraoed by the official. Thus, the DA(P), being a party to the case, should not have initiated the disciplinary proceedings. Considering the above contentions, the OA was disposed of observing that when some procedural irregularity is committed, it is to be seen whether that irregularity has affected the fortune of the employee or not. The Hon’ble Tribunal directed the revising authority to consider whether the disciplinary proceedings initiated by the DA(P), Hyderabad who was a party in this case were in order. Accordingly, the case has been carefully re-examined in the light of the order of the Hon’ble Tribunal and the revision order dated 31.7.2000 was passed. The contention of the applicant that the finalization of the disciplinary proceedings by an officer who was lower in rank to the initial appointing authority of one of the officials in the common proceedings, has been held as technically correct. It was, however, observed that no disadvantage or denial of justice was caused to the applicant due to the above. It was still felt that this technical irregularity has not put the applicant in any disadvantage nor has this denied him of reasonable opportunity of defence. Moreover, the disciplinary authority is not lower in rank than the initial appointing authority in respect of the applicant. As regards the disciplinary proceedings initiated by the DA(P), who was a party to the case, the respondents submitted that the DA(P), Hyderabad did not pass the punishment order although she had initiated the disciplinary proceedings. Assuming that the then DA(P), Hyderabad who was allegedly gheraoed by the applicant and affected by the alleged misconduct was in a position to influence the preliminary inquiry and shape the opinion that a prima facie case existed against the applicant, equity demanded that the disciplinary proceedings should have been initiated by some other officer afresh. Accordingly, the Member (D), Postal Service Board remitted back the case for initiating fresh proceedings under Rule 14 and 18 by a competent disciplinary authority as per the rules in force, thereby complying with the order of the Hon’ble Tribunal in OA 255/1999. Consequent on remitting back the case for initiating fresh proceedings under Rule 14 of the CCS (Conduct) Rules, action has been taken for conducting preliminary inquiry which involved taking statements from retired officials settled at different places and on completion of the preliminary inquiry, the charge sheet was issued under Rule 14 of the CCS (Conduct) Rules. The delay caused is owing to shortage of staff and other administrative reasons. The respondents submitted that the conduct rules are applicable to the office bearers of the All India Postal Accounts Employees Association, Hyderabad Branch equally on par with the other employees and there is no hostile discrimination or vindictive attitude as alleged by the applicant.
7. The applicant has filed rejoinder denying the submissions made by the respondents. The applicant has submitted that it is not true to say that the respondents have followed the orders of the Hon’ble Tribunal in OA 255/99 dated 14.3.2000. In fact, it is a settled law that the revisionary authority has no powers to conduct fresh proceedings in exercise of his revisionary powers under Rule 29 of the CCS (CCA) Rues, 1965 as held by the Hon’ble Jabalpur Bench of the Central Administrative Tribunal, in the case of Ram Milan Paroha v. Union of India reported in (1989) 10 ATC 835 relying upon the judgments of the various Hon’ble High Courts and the Hon’ble Apex Court. The applicant further submitted that the respondents have totally failed to explain even remotely the extra ordinary delay that has crept into the issue of the impugned charge memo after about six years of the orders of the revisionary authority. In support of this contention, the applicant relied on a decision of the Hon’ble Apex Court in the case of State of Punjab and Ors. v. Chamanlal Goyal . The applicant submitted that the Hon’ble Tribunal did not give any liberty to the respondents to initiate fresh proceedings and the Hon’ble Tribunal had only directed to take a final decision within a period of two months from the date of receipt of the order dated 14.3.1999 in OA 255/1999. The respondents did not come out with any reply in this regard.
7. We have given our careful consideration to all the facts of the case and we have also perused the records and considered the arguments put forward by the learned Counsels on either side. The only issue that has to be decided in this case is whether the impugned charge memo dated 25.9.2006 is maintainable in law or it needs to be quashed as prayed for.
8. The Tribunal’s order dated 14.3.2000, vide para 2 thereof, is reproduced below:
2. The applicant was issued a charge sheet similar to the charge sheet issued to the applicant of O.A.252/1999 which is disposed of today. The contentions raised in this O.A. and the reliefs asked for are the same as that of O.A. 252/1999. Hence, this O.A. is also disposed of by passing the following order:
(i) The impugned order of the reviewing authority dated 18.5.1998 is hereby set aside.
(ii) The case is remitted back to the Member (Personnel), Postal Services Board, Department of Posts, for reviewing his order on the basis of the observation made above.
(iii) A final decision has to be taken by the Member (Personnel), Postal Services Board, within a period of two months from the date of receipt of a copy of this order.
(iv) The applicant, if so advised, may submit a detailed review petition in addition to what he had already submitted within a period of 1 week from today.
9. Paras 5 and 6 of the order dated 14.3.2000 in OA 252/1999 are reproduced below:
5. The applicant made 2 main contentions. They are-
(i) The reviewing authority himself had accepted that the common proceedings should have been initiated by the President or by any other authority competent to impose the penalty of dismissal from service of all such Govt. servants.
In the present case, the appointing authority was another official when the common inquiry proceedings was initiated who is the appointing authority is stated to be the AG P & T, Shimla, and it is accepted by the respondent authorities that the disciplinary authority who made the order was lower in rank. However, that point was not considered by the revisionary authority on the ground that no prejudice was caused to the applicant for non-consideration of that very relevant point.
We agree with the ld. Counsel for the applicant. When some procedural irregularity is committed, it is to be seen whether that irregularity has affected the fortune of the employee or not. Merely saying that it has not caused any disadvantage, is no reason to ignore that point. Hence, we are of the opinion that the revisionary authority must necessarily examine this point once again and come to a decisive conclusion on the basis of the report and other connected documents to state whether that contention has to be accepted or not to be accepted.
(ii) The second main contention of the applicant is that R.3 was allegedly gheraoed by the official. If that be the case, the principles of natural justice demands that the said official should not have initiated the disciplinary proceedings. It should have been done by someone else.
6. When we inquired from the Ld. Counsel for the applicant as to why he has not taken up with the higher authorities, namely, the PMG, if he is of the opinion that initiation of disciplinary proceedings by Rule 3 is not in order, he submits that he has made this point in his defence statement in the inquiry. But the applicant does not appear to have taken this to the Judicial Forum if he is aggrieved by the same. Hence, if the applicant now complains that principles of natural justice has not been followed, he failed to take any action at the appropriate time. However, this point may also be considered by the revisionary authority in accordance with the rules based on records available with him.
10. From the above, it is seen that the Hon’ble Tribunal had given a clear direction to the revisionary authority to examine the points raised herein once again and then come to a conclusion on the basis of the report and other connected documents to state whether the contention raised has to be accepted or not to be accepted and accordingly a direction was given in para 7 there of for reviewing the order on the basis of the observations made therein within a period of two months. In other words, the above observations in OA 252/1999 would apply mutatis mutandis to the order in OA 255/1999 also. It is seen from the impugned revisionary order dated 31.7.2000 that the said revisionary authority has traced the history of the case and taken note of the observations of the Bench in OA 255/1999 and then discussed the matter in paras 5.1 and 5.2 thereof and then finally in para 6 concluded that the case deserves to be remitted back for initiating fresh proceedings under Rules 14 and 18 by the competent disciplinary authority as per rules in force. This order was passed by the revisionary authority in exercise of the powers conferred under Rule 29 of the CCS (CCA) Rules. Rule 29 of CCS (CCA) rules is reproduced below:
29. [Revision]
(1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Deprtment; or
iii) the Member(Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and [Adviser (Human Resources Development), Department of Telecommunications] in the case of a Government servant serving in or under the Telecommunications Board]; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the Appellate Authority, within six months of the date of order proposed to be revised; or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and [revised] any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
[Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary]:
Provided further that no power of revision shall be exercised by the Comptroller and Auditor General, [Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications] or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced until after-
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
11. It is seen from the above that the revisionary authority has the power to remit the matter back to the original authority or such authority as he deems fit and the revisionary authority thus, has passed the impugned order dated 30.7.2001 only in accordance with law. So, in our opinion, the order in revision dated 30.7.2000 passed by the revisionary authority, in pursuance of the Hon’ble Tribunal’s direction, is perfectly valid and cannot be faulted. The applicant’s prayer in this regard has, therefore, to be rejected.
12. The applicant has also assailed the impugned charge memo on the ground that there has been undue delay of over six years. When we examine this aspect, we find that in the OA No. 255/99 filed by the applicant against the order in revision dated 18.5.98, this Tribunal had passed Order on 14.3.2000 directing the revisionary authority to take a final decision within two months, in the light of its observations. Accordingly, the revisionary authority also passed Order dated 31.7.2000 remitting the matter back for initiating fresh proceedings as per Rules 14 and 18 of the CCS (CCA) Rules. Thereafter, it is only on 25.9.2006 that the impugned charge memo has been issued by the competent authority. The respondents have justified the time taken herein by saying that after the matter was remitted for initiating fresh proceedings, action was taken for conducting preliminary inquiry which involved taking statements from retired officials settled at different places and on completion of the preliminary inquiry, charge sheet was issued and so the delay caused is owing to shortage of staff and other administrative reasons. This explanation, we are afraid, is not at all satisfactory, hence not acceptable. There seems to be inordinate delay of more than six years in issuing the fresh charge memo after the matter was remitted by the revisionary authority. In view of the above, we agree with the contention raised by the applicant that the impugned charge memo is not maintainable as per the cited decisions of the Hon’ble Supreme Court in the cases of (i) State of Andhra Pradesh v. N. Radhakishan ; (ii) State of Punjab and Ors. v. Chaman Lal Goyal ; and (iii) State of Madhya Pradesh v. Bani Singh and Anr. . The impugned charge memo is accordingly liable to be set aside.
13. In the light of the above discussion, we allow the OA as above with no order as to costs.