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Mohd. Nasarullah Khan v/s Union of India, Rep. by the Secretary to the Govt. of India, Ministry of Communication, New Delhi & Others

Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

Company & Directors' Information:- T C COMMUNICATION PRIVATE LIMITED [Active] CIN = U74999DL2000PTC105354

Company & Directors' Information:- J J COMMUNICATION PRIVATE LIMITED [Active] CIN = U74300WB1997PTC085828

Company & Directors' Information:- P. K. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92141DL1984PTC017748

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- K AND D COMMUNICATION LIMITED [Active] CIN = U64120GJ1997PLC031879

Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

Company & Directors' Information:- M K COMMUNICATION PVT LTD [Strike Off] CIN = U72900HP2006PTC030292

Company & Directors' Information:- H V COMMUNICATION PRIVATE LIMITED [Active] CIN = U52602DL2009PTC193309

Company & Directors' Information:- A AND A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92132DL2001PTC110975

Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

Company & Directors' Information:- N S N COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100KA2014PTC073757

Company & Directors' Information:- N A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC182901

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    Original Application No. 040/00388 of 2016

    Decided On, 16 February 2018

    At, Central Administrative Tribunal Guwahati Bench Guwahati


    For the Applicant: S.K. Sikidar, Advocate. For the Respondents: S.K. Ghoash, Addl. CGSC.

Judgment Text

S.N. Terdal, Judicial Member.

1. This O.A has been filed seeking the relief of setting aside the Charge Memo No.8-290/2004-Vig.II dated 21.03.2005 and the penalty order No.8-290/2004-Vig.II dated 19.02.2016.

2. Heard Mr. S.K. Sikidar, learned counsel for the Applicant and Mr. S.K. Ghosh, learned Addl. C.G.S.C. for the Respondents. Perused the pleadings and all the documents produced by both the parties.

3. The relevant facts of the case are that the Respondents initiated a Departmental Enquiry under Rule 14 of the CCS (CCA) 'Rules, 1965 against the Applicant with the following Article of Charge:-


That the said Shri M.N. Khan while posted and functioning as Director (OFC), Guwahati during the period 1996 to 1997 failed to maintain absolute integrity and devotion to duty and committed gross misconduct inasmuch as he had conducted test checking of the work done in sub-section 15 of Imphal-Moreh route of the Contractor Sri Shadmadhar Radha before making final payment but silent about the non availability of RCC protections. He failed to deduct the proportionate amount as per the deficiencies found by them during their sample test check. The amount deducted was 10% of the final bill of Rs.5,56,042.00 i.e. Rs.55,604.00 only. Moreover, in the test check report, they have mentioned that rocky soil has not been encountered all along the route, even then, he had not ordered for payment of trenching cost at the rate of hard soil instead of rocky soil, resulting in a huge pecuniary benefit to the Contractor.

Thus by his above acts, the said Shri M.N.Khan committed misconduct, failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Govt. Servant, thereby violated the provisions of Rule 3(1) (i) (ii), & (iii) of CCS (Conduct) Rules 1964.

By order and in the name of the President.'

4. The Departmental enquiry was held and the Enquiry officer submitted enquiry Report on 26.12.2009 holding that charge was not proved. On 09.9.2010 the Disciplinary authority issued a disagreement Memo, disagreeing with the Enquiry Report. The Applicant submitted representation against the disagreement note on 30.10.2010. The Disciplinary Authority holding that charge was established sought the advice of UPSC. But however, in view of the order of the Hon’ble High Court of Delhi the final order was not passed and ultimately upon the dismissal of the Writ Petition filed by the Applicant, mainly Writ Petition (C) 324/2008 on 27.11.2015, the Disciplinary Authority after receipt of the advice of the UPSC imposed the penalty of withholding of 10% monthly pension for a period 10 (ten) years otherwise admissible to the Applicant-CO.

5. The learned counsel for the Applicant submitted that for the events which happened in 1996 the charge sheet was issued in 2005 after in-ordinate delay of nearly 8-9 years. As such, in view of the law laid down by the Hon’ble Supreme Court, in the case of P.V.Mahadevan Vs. M.D. Tamilnadu Housing Board reported in 20059(6) SCC 636, the charge memo requires to be quashed.

6. To this submission, the learned Addl. CGSC for the Respondents submitted that there is no delay in initiating the departmental proceedings as the incident of misconduct came to notice of the Respondents only in 2005. As such, there is no delay in initiating the departmental enquiry and therefore, the law laid down by the Hon’ble Supreme Court in the case of P.V. Mahadevan (supra) is not applicable in this case.

7. The learned counsel for the Applicant submitted that while issuing disagreement note, the disciplinary authority has not recorded the reasons for disagreement and he has not recorded his own finding. As such, in view of the law laid down by the Hon’ble Supreme Court in the case of Bank of India Vs. Dagala Suryanarayana, reported in 1999 (4) SLR 292, disagreement note is not valid. In this regard from the perusal of disagreement note, it is clear that the disciplinary authority has given reason for disagreeing with the finding of the Inquiry Officer arid relied on the documentary evidence available in the departmental proceedings and he has recorded his own finding and also that he had sent his disagreement note to CVC’s advice and the CVC also concurred with the disagreement note. In view of these facts which are borne out by the impugned order dated 19.02.2016, the submission of the learned counsel for the Applicant is not sustainable.

8. The learned counsel for the Applicant further submitted that in view of the law laid down by the Hon’ble Supreme Court in the case of Union of India and others Vs. S.K.Kapoor, (2011) 4 SCC 589; the disciplinary authority should have furnished the advice of the UPSC to the Applicant before passing the order of the penalty.

9. From the record, it is seen that the UPSC advice was obtained on 14.05.2012 and it was relied upon by the Respondents. But however, it was riot furnished to the Applicant. In view of the law laid down by the Hon’ble Supreme Court in th

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e case of S.K.Kapoor (supra), as submitted by the learned counsel for the Applicant, the Applicant was deprived the principle of natural justice and deprived of opportunity of furnishing representation against UPSC advice. Thus, in view of the law laid down by the Hon’ble Supreme Court, the penalty order No. No.8-290/2004-Vig.II dated 19.02.2016 requires to be set aside. However, the Respondents are at liberty to proceed as per law after furnishing a copy of the UPSC advice to the Applicant. 13. O.A. is disposed of accordingly. No order as to costs.