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Tulsiram Sonaji Parihar Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Ahmedabad
Decided On
Judge
Reported in(2007)(1)SLJ263CAT
AppellantTulsiram Sonaji Parihar
RespondentUnion of India (Uoi) and ors.
Excerpt:
.....of village kidana. (2) shri t.s. parihar started accepting the rent of tea stall no. 16 from one shri rampher, who was not the allottee of the said tea stall as the allotment is in favour of the shri ram naresh haridar.5. in his written representation dated 7.6.2001 so far the charge no. 1 was concerned, the applicant has contended that he was not empowered or authorized to issue or sign any noc and that he had not issued any such noc. he also contended that the competent authority is state officer/development commissioner who was empowered to issue or sign the noc and in fact he had issued the same. since charge levelled against him was that he had issued the noc, the charge was faulty right from the inception. he also contended that he had not issued any such noc in respect of the.....
Judgment:
1. The applicant has approached this Tribunal seeking quashing and setting aside of the penalty order dated 30.9.2003 passed by the Disciplinary Authority and confirmed by the Appellate Authority vide order dated 02.1.2004. The applicant was served with a charge sheet under Rule 16 of the CCS (CCA) Rules, 1965 levelling certain imputation of misconduct and misbehaviour against the applicant on dated 2/3.11.2000. He was asked to submit his representation with regard to the charges levelled against him within 10 days of the service of the charge sheet on him. He had submitted his representation on dated 7.6.2001 contending that he was not supplied with all the documents asked for by him and the charges levelled against him were not correct and did not amount to misconduct on his part. The Disciplinary Authority after considering his representation vide order dated 30.9.2003 holding that the Charge Nos. 1 & 2 were proved, imposed the penalty of withholding of the increments for a period of two years in terms of the provisions of Rule 11 of the CCS (CCA) Rules, 1965.

Aggrieved by the order of the Disciplinary Authority, the applicant preferred the departmental appeal on dated 14.11.2003. The appeal has however, come to be rejected by the Appellate Authority vide order dated 2.1.2004. The applicant has thereupon approached this Tribunal by this O.A. The applicant has assailed the finding of the Disciplinary Authority on Charge Nos. 1 & 2 on several grounds. He has contended that he was not supplied all the relevant documents and as such, whole inquiry is vitiated. It is also contended that the charge levelled against him cannot constitute a misconduct and as such, the charge-sheet itself was null and void no penalty could have been imposed on him. It is also contended that the Disciplinary Authority had imposed the punishment on him without due application of mind and without considering the fact that there was absolutely no evidence of any misconduct against the applicant. The Appellate Authority has also mechanically decided the appeal without applying the mind and without giving any reason for the rejection of the appeal. He has prayed for quashing and setting aside the penalty imposed on him.

2. The respondents in their reply have contended inter alia that since the applicant had failed to discharge his duties with devotion and further failed to maintain absolute integrity he was served with a charge sheet and the Disciplinary Authority has rightly imposed the penalty on him. They have denied that the documents as asked for by the applicant were not supplied to him and that the inquiry proceedings were vitiated on account of non-supply of the documents and non-observation of the principle of natural justice. They have contended that the inspection of all the relevant documents was given to the applicant and the applicant has also admitted having taken inspection of those documents. They have also contended that the applicant had adopted delaying tactics, though he was given enough opportunity to inspect all the relevant records. The applicant had in fact acknowledge in writing on dated 6.12.2000 that he had inspected 10 documents tick marked by him. According to them, there is absolutely no substance in the allegation of the application having not been permitted to inspect the documents or not supplied the relevant documents. The applicant was given enough opportunity to defend himself till 7.6.2001 though the charge sheet was given to him on dated 3.11.2000. He had tried to delay the proceedings by asking for several documents one after another and has made baseless allegations of non-supply of documents. They have also denied that the charges did not constitute any misconduct on the part of the applicant and that the Disciplinary Authority has without application of mind, held the applicant guilty of the Charge Nos. 1 & 2. They have also denied that the Appellate Authority also mechanically denied the appeal and that no reasons are given by the Appellate Authority while rejecting the appeal. They have also contended that NOC dated 11.10.1995 was issued by Estate Officer on the reports given by the applicant. The applicant being interested in getting this certificate released had got the same issued by the Estate Officer. Hence, he was held to be liable for misconduct. So far the Charge No. 2 is concerned, the applicant had accepted the rent of Tea Stall No. 16 from Shri Ram Pher though he knew that Shri Ram Pher was not the tenant of that stall. It is clearly a misconduct on his part. They have maintained that the charges levelled against the applicant were neither illegal or arbitrary or vogue nor void ab initio. They are proved by the evidence on record and hence the applicant is rightly, penalised. They have prayed that the O.A. be dismissed with costs.

3. We have heard learned Counsels of both the parties and duly considered the rival contentions. The learned Counsel for the respondents has also made available the departmental file for our perusal. We have carefully gone through the same.

4. The applicant was served with the charge sheet under Rule 16 of the CCS (CCA) Rules levelling four charges. Out of these four charges, the Disciplinary Authority has held the first two charges as proved against the applicant. These charges read as under: Shri T.S. Parihar while posted and functioning as Assistant Security Officer in the Estate Management Section, committed gross misconduct inasmuch as he: (1) Wrongfully issued NOC in respect of land at Survey No. 225, even though here was intimation from the District Collector and KPT that the Zone Administration should not issue NOCs. This act of Shri T.S. Parihar resulted in transfer of Zone's property i.e. Land at Survey No. 225 to one Shri Juma alias Chavda of Village Kidana.

(2) Shri T.S. Parihar started accepting the rent of Tea Stall No. 16 from one Shri Rampher, who was not the allottee of the said Tea Stall as the allotment is in favour of the Shri Ram Naresh Haridar.

5. In his written representation dated 7.6.2001 so far the charge No. 1 was concerned, the applicant has contended that he was not empowered or authorized to issue or sign any NOC and that he had not issued any such NOC. He also contended that the Competent Authority is State Officer/Development Commissioner who was empowered to issue or sign the NOC and in fact he had issued the same. Since charge levelled against him was that he had issued the NOC, the charge was faulty right from the inception. He also contended that he had not issued any such NOC in respect of the Survey No. 225. It was Mr. R.M. Muralidharan Estate Officer who had initiated the proceedings and who had issued the NOC in favour of Mr. Juma alias Chavda. He has also pointed out that Survey No. 225 did not appear in the said Notification and was also not mentioned in the handing over/taking over report of the land taken over by the KAFTZ administration before establishment of the zone. The said survey No therefore, did not come within the KAFTZ administration zone and considering this aspect, the NOC was issued. He has pointed out that on 18.9.95 the Development Commissioner passed an order that 'before final NOC is issued please get NBCC's opinion also but it is to be done quickly'. Accordingly, the NOC Engineer Mr. Pathak visited the site and verified from his records/master plan of KAFTZ, that the said Survey No. 225 did not appear to be in the master plan of the KAFTZ. He has further submitted that after seeing MBCC s letter dated 25.9.95 he had processed the matter further for Estate Officer/DCs consideration.

After verifying that the said Survey No. 225 was not at all the property of the zone and the same was the property of the Kandla Port Trust, he had processed the matter. He has further pointed out in his written submissions that KPT vide letter dated 23.1.96 and 7.6.96 advised the office to first withdraw the letter dated 11.10.95 issued in favour of Mr. Chavda. He had therefore, put a draft letter to the Estate Officer for withdrawal of the letter in question but Mr.

Murlidharan, Estate Officer had modified his draft letter to the effect that there was no need to withdraw the letter dated 11.10.95 as it would be seen from the said letter that this administration has not communicated anywhere that the plot in Survey No. 225 allotted to the said party i.e. to Mr. Juma alias -Chavda.

6. The Disciplinary Authority in his order dated 30.9.2003 while dealing with the Charge No. 1 on the subject of wrongful issue of NOC in respect of land at Survey No. 225 had observed as under: Shri T.S. Parlihar has heavily counted on the physical evidence, where he along with the beneficiary visited the site and found that land at Survey No. 225 does not fall in the Zone administration area nor does it figure in the General Exemption No. 21 of the Central Excise Tariff, 1994-95 notified for KASEZ. It is seen on examination that the said notification covers only industrial area for the purpose of allowing exemption from Customs/Central Excise duty and has no relevance with the total area in use by the KASEZ, administration at that time. Clearly, the charged officer has shown undue haste. Though he has claimed that only Development Commissioner and the Estate Officer were the proper authority for issue of NOC. It is seen that without any instructions in this regard, Shri T.S. Parihar personally called Shri Juma alias Chavda and went along with him for physical survey. It is seen from the office file that no such instructions for physical survey. It is seen from the office file that no such instructions for physical survey was issued by any Competent Authority. Secondly, it has also been seen that the Note Sheet Page No. 2 have been pasted with new one for endorsing a copy of the no objection letter to the Mamlatdar, Anjar on which the transfer has been permitted. From the above, it is clear that Shri T.S. Parihar had acted in haste and unauthorizedly surveyed the land along with the beneficiary and also mislead the authorities by drawing reference only too the physical visit and by providing reference of Central Excise Notification which does not have any bearing on the total and in possession of the KASEZ Administration.

7. A plain reading of the findings and reasoning of the Disciplinary Authority clearly indicates that he has completely deviated from the charges levelled against the applicant. The Charge No. 1 as framed against the applicant alleged that he has wrongfully issued NOC in respect of the land at Survey No. 225 even though there was intimation from the District Collector and KPT that the Zone Administration should not issue NOCs. The applicant in his written submission clearly stated that he was not empowered and was not competent to issue such NOC and he himself has never issued such NOC. He had also contended that it was the Estate Officer or Development Commissioner Mr. Murlidharan who had issued NOC. The Disciplinary Authority has not given any finding about the issuance of the NOC by the applicant. He has merely opined that the applicant had acted in haste and unauthorizedly surveyed the land along with the beneficiary and also mislead the authorities by drawing reference only to the physical visit and by providing reference only to the physical visit. The charge nowhere alleges that the applicant was not required to take a physical visit of the site and was not required to submit his report. The Disciplinary Authority has clearly not given the finding on the charge but given finding on extraneous matter for which the applicant was never charged. His finding on the charge No. I therefore can easily be said to be perverse and wrong finding.

Furthermore, the Disciplinary Authority does not communicate what action had been taken against the Estate Officer who has issued the NOC when it was found that issuance of NOC was a misconduct on the part of the employee who issued the same. The evidence discloses that it was Mr. Murlidharan who had issued the NOC, but no action appears to have been initiated against Mr. Murlidharan. Obviously, such a charge of wrongful issue of NOC in respect of land at Survey No. 225 could not have been framed against the applicant as the concerned authority must be knowing very well that he was not empowered or competent person to issue the NOC and had in fact not issued such NOC. The applicant therefore could not have been found guilty of issuing NOC wrongfully in respect of the Survey No. 225. Even on the finding of the Disciplinary Authority that the applicant had acted in a haste in surveying the land along with the beneficiary no punishment could have been imposed on the applicant as acting in a haste by an employee while discharging his duties cannot be termed as a misconduct. There is therefore, ample justification in the allegation of the applicant that findings given by the Disciplinary Authority on Charge No. 1 at least are without due application of mind and are perverse and arbitrary. Even if the applicant had initiated the proceedings for the issuance of NOC in favour of Mr. Chavda he cannot be held to be guilty of misconduct inasmuch as that he was not the Competent Authority to issue the NOC in respect of said S. No. and had in fact not issued such NOC. The officer who issued such NOC was the ultimate responsible officer as it can be easily inferred that he had issued the same without application of mind and without due inquiry in the matter. Hence, so far the findings of the Disciplinary Authority as well as the Appellate Authority on Charge No. 1 are concerned, they are found to be perverse and illegal and hence, set aside. However, so far the finding of the Disciplinary Authority on Charge No. 2 is concerned, we find that the same cannot be interfered with. The applicant was charged with accepting the rent of Tea Stall No. 16 from one Shri Ram Pher who was not the allottee of the said stall as the allotment was in favour of one Mr. Ram Naresh Haridwar. In his written representation the applicant has admitted that the allotment order dated 21.3.94 was issued in favour of Mr. Ram Naresh for Tea Stall No. 16 but then questioned as to why physical possession of the Tea Stall No. 16 was handed over to Mr. Ram Pher by the then staff. His admission clearly suggests that the Tea Stall No.16 was allotted to Mr. Ram Pher as per the allotment order and therefore, he was not required to recover the rent of that Tea Stall from any other person except Mr. Ram Naresh. There may have been some dispute about the possession of the Tea Stall but that did not justify his accepting the rent from anybody else except the allottee. The Disciplinary Authority in his order has observed that vide note dated 20.7.1994 Shri T.S. Parihar (applicant) put up a note regarding receipt of rent in respect of 8 persons including Shri Ram Naresh Haridwar in respect of Tea Stall No. 16. Subsequently he only vide his note dated 27.7.94 has put up the case of the application made by Shri Ram Pher for allotment of construction of cabin where he has mentioned that the constructed shed is allotted to Shri Ram Naresh. Though, Shri T.S.Parihar claimed that he had recommended cancellation of the allotment made to Mr. Ram Pher while again on 16.8.1994 Shri T.S. Parihar reported that inquiries made by him through Sepoy show that there is no person in the name of Mr. Ram Naresh living in Gandhidham and therefore suggested that TS-16 may be cancelled and reallotted to Shri Ram Pher.

Again on 6.9.94 he had mentioned that he had called Shri Ram Pher and discussed the matter with him. It is in between this period that vide Challan dated 16.9.94 rent was deposited in the name of Shri Ram Pher.

8. Significantly the applicant admitted that having recovered the rent of Tea Stall No. 16 from Ram Pher, thereby justifying in the finding of the Disciplinary Authority that though the stall was allotted to Shri Ram Naresh the applicant had knowingly recovered the rent from Shri Ram Pher and deposited the same in Ram Pher's name thereby giving rise to a claim of tenancy by Shri Ram Pher. It appears that the applicant had advocated the case of Shri Ram Pher of being tenant of Tea Stall No. 16 resulting in to an awkward situation for the Administration as Ram Pher had already filed a Civil Suit claiming tenancy right over the dispute Tea Stall. It therefore, cannot be denied that the act of the applicant was not befitting the Govt. employee and can be easily said to be a misconduct on his part. Furthermore, the finding arrived at by the Disciplinary Authority on Charge No. 2 is a finding of fact and this Tribunal cannot act as an Appellate Authority and cannot interfere with this finding.

9. It is a settled legal position that the jurisdiction of this Tribunal to interfere with the disciplinary matters cannot be equated with the appellate jurisdiction and we cannot interfere with the findings of the Inquiry Officer or Disciplinary Authority where these findings are not arbitrary or perverse or not based on no evidence. If there has been any inquiry conducted as per the rules and in accordance with the principles of natural justice, what punishment would meet the ends of justice is the matter exclusively within the jurisdiction of the Competent Authority. If the penalty can lawfully be imposed and is imposed on proved misconduct, the Tribunal has no power to substitute its own, discretion for that of the authority. In the case of B. C.Chaturvedi v. Union of India as well as in the case of High Court of Judicature at Bombay v. Shri Shashikant S. Patil the Supreme Court has laid down that if there is sonic legal evidence on which the findings can be based, then the adequacy of even reliability of that evidence is not a matter to be canvassed before the High Court under Article 226. it is further laid down that the decision of the Disciplinary Authority cannot be interfered with if there is no violation of natural justice or statutory regulations.

10. The finding of the Disciplinary Authority on Charge No. 2 therefore, cannot be interfered with by this Tribunal and the same deceives to be upheld. The Disciplinary Authority has however, imposed a composite penalty of withholding of increments for a period of two years on his finding of the guilt of the applicant on both the charges.

Now since we have found that the applicant cannot be held to be guilty of the Charge No. 1 the penalty imposed on the applicant deserves modification. The mailer therefore has to be remanded back to the Disciplinary Authority for reconsideration of the penally imposed on the applicant and to impose appropriate penalty on the applicant in view of his having been found to be guilty only on the Charge No. 2.

11. For the reasons discussed above and in the facts and circumstances of the case, we quash and set aside the penalty imposed on the applicant by the Disciplinary Authority and confirmed by the Appellate Authority. We however, remit the matter back to the Disciplinary Authority for modifying the penalty imposed on the applicant with a direction to impose any appropriate penally on the applicant considering that only the Charge No. 2 stands proved against the applicant. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. The O.A.stands disposed of with this direction. No order as to costs.


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