1. Petitioner has challenged an order, dated 28th March 2016, passed by the disciplinary authority imposing punishment of withholding two increments of the petitioner without cumulative effect and a further order, dated 22nd December 2020, passed by the appellate authority dismissing the appeal of the petitioner against the order of the disciplinary authority.
2. Brief facts are as under:
The petitioner is working as an Upper Division Clerk(UDC) under Principal, Industrial Training Institute, Kailashahar. He had applied for Leave Travel Concession (LTC) advance for himself and his family members on 18th May 2010 in which one of the members of the family mentioned by the petitioner was one Smt. Pranati Das shown to be his sister and fully dependent on him. Before this request could be fully processed, the petitioner wrote to the department, on 3rd September 2010, stating that his LTC advance is not yet sanctioned. However, on account of his current family circumstances he was not in a position to avail the LTC. The request for advance payment of LTC may, therefore, be cancelled.
3. On 7th September 2010 i.e. a few days after the petitioner withdrew his request for LTC advance, the department issued a memorandum to him stating that upon further queries in relation to his LTC advance request the petitioner had clarified that Pranati Das was not his sister but unmarried sister-in-law who was fully dependent on him. It was, therefore, alleged that prima facie the petitioner had furnished false information about his relation with Pranati Das. He was given 7 days to explain his conduct. In response to this memorandum, the petitioner replied on 20th September 2010 and pointed out that he had already withdrawn his request for LTC advance, that Pranati Das is an unmarried sister of his wife, that she is fully dependent on her sister and the petitioner and is residing with them; having no other independent source of income. He pointed out that he had no ill intention in making the claim and the show cause notice may be dropped.
4. Ignoring this explanation of the petitioner, the disciplinary authority issued a charge sheet dated 18th January 2011 which contained only one charge namely, that the petitioner had made a false declaration in his LTC advance claim that Pranati Das was his sister and was fully dependent on him. According to this charge sheet, the petitioner had done this with the intention of gaining illegal benefit from the Government.
5. The petitioner resisted the departmental proceedings. An inquiry was conducted. Inquiry officer submitted his report dated 22nd March 2014 in which he recorded the petitioner?s explanation that it was due to oversight and typographical error that he had shown Pranati Das as his sister instead of sister-in-law. He had deposed that Smt. Pranati Das was dependent on him and stayed with his family. He had also tendered apology for his unintentional error. He had also pointed out that he had never availed the LTC for his sister-in-law or for himself and thus, there was no loss caused to the Government. He also pointed out that as per Rule 2C(III) of Central Civil Services (Conduct) Rules, 1964 (hereinafter to be referred to as “the Rules”) even a sister-in-law is included within the definition of family and, therefore, the petitioner was entitled to make LTC claim for unmarried fully dependent sister-in-law. The inquiry officer after recording these averments and submissions of the petitioner, in the report stated as under:
“……………. Apart from this, the AO has contended in his brief of argument quoting the provision of rule 2(C)(III) of Central Civil Services (Conduct) Rules, 1964 in Para - 4 of the argument that “any other person related whether by blood or marriage to the Government servant or to the Government servants? wife or husband and wholly dependent on the Government servant” stated that the alleged person namely Smti. Pranati Das be construed as one of the family member and hence, there is no inhibition to show her as the family member. His fault is only recording the type of relation against her name as sister instead of sister-in-law which he has explained that was due to oversight and typical mistake.
The AO is therefore, liable for such false information.”
6. The inquiry officer has not evaluated the petitioner?s grounds to resist the charge. He did not reject the petitioner?s defence that the petitioner had made an honest error since, even as a sister-in-law he was entitled to make a claim of LTC for her as per the Rules. Inquiry officer merely without any discussion came to the conclusion that the only „fault? of the petitioner was recording the incorrect relation with his sister-in-law. Going by this finding in any case the inquiry officer cannot be said to have held that the charge against the petitioner was proved. We may recall, the charge was that the petitioner had made a false claim of LTC advance to gain illegal benefit from the government. Element of mens-rea was thus part of the charge. The inquiry officer nowhere held that the false declaration was made by the petitioner deliberately and for illegal minatory gain.
7. The petitioner was supplied the copy of the inquiry officer?s report to which he made a detailed representation dated 13th March 2015. In his representation, the petitioner reiterated his averments, denied that he had supplied false information, relied on Rule 2 (C) of CCS Conduct Rules to contend that even a sister-in-law is covered within the definition of the term „member of the family?. He, therefore, had no mala fide intention in making an incorrect declaration but it was a mere oversight.
8. The disciplinary authority passed impugned order, on 28th March 2016 and without citing any reasons imposed the punishment of withholding of two increments without cumulative effect. In this order, he did not adhere to any of the petitioner?s defences. He merely concluded that the representation of the petitioner was not found satisfactory.
9. The petitioner filed appeal against the order of the disciplinary authority. This appeal was dismissed by an order, dated 22nd December 2020, once again without reasons. Interestingly, the punishment was imposed by the Director of Industries and Commerce and the petitioner?s appeal against the order of penalty was also decided by the Director of Industries and Commerce. Thus, an officer of the same level imposed the punishment and also dismissed the appeal of the petitioner against the order of penalty, clearly breaching the rules of hierarchy. The petitioner has thereupon filed this petition challenging the punishment.
10. I have heard learned counsel for the parties for final disposal. The penalty order cannot survive the legal test for several reasons. Firstly, from the beginning the petitioner had set up case of a bona fide error and no financial loss to the Government. His case was simple namely, that the claim for LTC advance was withdrawn even before it was fully processed. Secondly, it was a mere oversight to refer to Pranati Das as his sister instead of sister-in-law. Thirdly, Rule 2(C) III of CCS Conduct Rules provides that even a member of the family related to the Government servant through marriage would be included in the term „member of the family?. The petitioner had pointed out to the Government as well as to the inquiry officer during the course of the inquiry that Pranati Das was unmarried, had no independent source of income and resided with the petitioner and his wife. She was thus fully dependent on the petitioner. These grounds were not rejected by the inquiry officer. He in fact came to the conclusion that the petitioner?s only fault was to give the false declaration of his relation with Pranati Das. The inquiry officer did not elaborate whether his false declaration was based on a bona fide error or was premised on malicious intention to gain an illegal benefit. In this context, the petitioner?s assertion that Pranati Das his sister-in-law would also be covered under the definition of member of family would become relevant. Whether the petitioner?s interpretation to the rule is correct or not is not important. If the petitioner had bona fide belief that the rule encompasses a sister-in-law within the term „member of the family?, his explanation that to refer to her as his sister was a mere oversight or a typographical error immediately becomes acceptable. The inquiry officer in fact found that the only „fault? of the petitioner was with respect to the nature of relation. Very clearly the inquiry officer did not hold that the petitioner had made such false declaration with mala fide intention.
11. If the disciplinary authority accepted the findings of the inquiry officer as they were, there was thereafter no further basis for imposing any punishment. On the other hand, if the disciplinary authority did not agree with the findings of the inquiry officer, he had to issue a notice of disagreement recording his tentative reasons and serve it to the petitioner calling for his representation. This much is sufficiently well-settled through the judgments of Supreme Court. Reference in this respect can be made to the decisions in case of Punjab National Bank and Ors. Vs. Sh. Kunj Bihari Mishra reported in (1998) 7 SCC 84 and in case of Zunjarrao Bhikaji Nagarkar Vs. U.O.I and Ors. reported in (1999) 7 SCC 409.
12. In fact the disciplinary authority even in the final order of punishment did not record his disagreement with any of the findings of inquiry officer, with or without notice to the petitioner. He merely proceeded to award punishment which he thought was commensurate with the proved charge.
13. The appellate authority committed a cardinal error of dismissing the appeal when Mr. V G Jenner, as a Director of Industries and Commerce, he was not competent to decide the appeal. The punishment was imposed by the Director. Appeal was filed by the petitioner before the Secretary i.e. to the Government and such appeal ought to have been decided by the Secretary. An officer is not competent to decide an appeal against an order passed by another officer of the same rank. This is the most basic principle of administrative law. Even the disciplinary appeal rules do not empower the Director to entertain appeal against an order of penalty passed by another Director.
14. Quite apart from these serious technical errors committed by the disciplinary authority and appellate authority, even on merits, I find that the petitioner was handed down punishment when it was not justified. Mere wrong mention of the relation in the LTC advance form without any intention to gain illegal benefit would not amount to misconduct. On the face of it the penalty may appear to be a minor penalty, in reality it would result into great loss and prejudice to the petitioner. This is so because as was recorded in order dated 7th January 2020, passed by this Court in WP(C) No.879/2019, the petitioner?s promotion was withheld on account of ongoing departmental inquiry and thereafter imposition of punishment. This apparently minor punishment would thus result into depriving promotion to the petitioner for a long period of time. This period got enlarged on account of extremely slow reactions by the administration in the course of the departmental inquiry and pendency of appeal. We may recall, after the petitioner gave his explanation, on 7th September 2010, the departmental charge sheet was issued to him only on 18th January 2011. The inquiry officer completed the inquiry after nearly three years. I fail to understand why such a simple inquiry took three years to complete. The inquiry officer submitted his report on 22nd March 2014. A copy of the inquiry officer?s report was supplied to the petitioner nearly a year later on 16th February 2015. The petitioner filed his reply on 13th March 2015. The disciplinary authority took one more year to take h
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is final decision on 28th March 2016. The petitioner filed appeal against the order of penalty shortly thereafter. This appeal was decided more than four years later by an order dated 22nd December 2020, that too by an incompetent authority. The entire chain of events shows a rather lax attitude on part of the administration in dealing with the case which has caused great loss and prejudice to the petitioner. On all these grounds, therefore, impugned order of punishment dated 28th March 2016 is set aside with all consequential effect. This would include restoration of the petitioner?s increments from due dates and also opening the sealed cover if the department has followed sealed cover procedure for promotion and acting on the recommendations of the DPC and if no such sealed cover procedure is followed, by drawing a review DPC for consideration for promotion which was denied to the petitioner on account of pendency of the departmental proceedings when his juniors were promoted on 4th October 2012. If the petitioner is found fit for promotion, he shall be granted promotion with retrospective effect from the date his junior was promoted. This exercise shall be completed within a period of 4(four) months from today. The petition is allowed and disposed of accordingly. Pending application(s), if any, also stands disposed of.