Madhu Sudhan Baidya v. Union Of India In The Ministry Of Home Affairs And ORS.

IN THE HIGH COURT AT CALCUTTA

APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SHEKHAR B. SARAF AND THE HON'BLE JUSTICE KESANG DOMA BHUTIA WP. CT/2/2022 Madhu Sudhan Baidya ... Petitioner Vs.

The Union of India in the Ministry of Home Affairs and Others

...Respondents

For the petitioner : Mr. Deep Chaim Kabir Mr. S. Ajith Prasad For the respondents : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal Heard on : March 21, 2022 March 22, 2022 Judgment on : March 25, 2022 SHEKHAR B. SARAF, J.

1.

The present petition has been filed for setting aside and/or quashing the impugned judgment of the Central Administrative Tribunal dated February 02, 2022 passed in connection with OA 351/1261/2021.

2.

The relevant facts for deciding the instant petition are delineated below: - (a) On December 19, 2018 a letter from the Assistant Secretary (Labour) was received by the petitioner stating that a complaint was received by them with regard to acquisition of disproportionate assets belonging to the petitioner for over his source of income and requested for submission of details of movable and immovable property.

(b) An order dated March 16, 2021 was sent by the Assistant Secretary (Vigilance), Andaman and Nicobar Administration to the Secretary (Labour), Andaman and Nicobar Administration directing that an enquiry report had been received from the Deputy Superintendent of Police, Anti-Corruption Unit dated February 02, 2021 with the request to convey the approval of the competent authority for registration of a FIR under Section 17A of the Prevention of Corruption Act, and accordingly, the Lieutenant Governor had conveyed such approval and had also directed to place the petitioner under suspension immediately. (c) The petitioner was issued the show cause notice under reference No. 9-45/2018/Con./Lab dated March 16, 2021 issued by the Secretary Labour, A & N Administration, Port Blair, which was received by him on March 17, 2021, giving him five days to file his explanation.

(d) On March 18, 2021 the petitioner was served with the suspension order No. 771 dated March 18, 2021 issued by the Lieutenant Governor in his capacity as the Disciplinary Authority invoking power under Rule 10(1) of the CCS (CCA) Rules, 1965.

(e) The petitioner had challenged the suspension before the Central Administrative Tribunal in OA NO. 351/614of 2021, and after hearing, the Tribunal has protected the petitioner by issuing an order of stay in favor of the petitioner vide order dated April 07, 2021. This order was extended from time to time as well. (f) The petitioner superannuated on April 30, 2021. Accordingly, during this time period, Charge Memo and articles of charge were sent to his residence for service in person on April 30, 2021. The respondents had also sent the scanned copy of the Charge Memo dated April 30, 2021 to the petitioner on his personal e-mail ID from the e-mail ID of the Assistant Secretary (Vigilance) which was duly received by the petitioner. (g) The petitioner received order Nos.

charges leveled against the petitioner and for inquiring into the matter.

(h) The petitioner received a letter issued by the Inquiry Authority on June 29, 2021 directing him to appear for preliminary hearing of the case in the chamber of the Inquiry Authority along with the defense assistant, if any.

(i) In reply to the above letter, the petitioner by way of a letter dated July 05, 2021 stated that he had never received any articles of charge, and he had been admitted in COVID care facilities from April 24, 2021 to May 05, 2021. He further stated in the letter that during that time period no letter was received by him either at the hospital or by registered post. (j) The petitioner received another letter dated July 13, 2021 stating that due to the absence of the petitioner the authority has drawn up a proceeding on July 9, 2021 fixing a fresh date of hearing, that is, July 20, 2021 at 10.00 AM for appearance and inspection of documents personally on the ground that "the charge memorandum has been pasted at the door in presence of two independent witnesses as the petitioner had failed to open the door".

(k) On August 10, 2021 the petitioner filed an original application bearing OA No.

351/1216/2021 before the Central Administrative Tribunal, Kolkata Bench stating that a

preliminary hearing and finding was necessary on the point of jurisdiction as the basic requirement of law under the relevant CCS (CCA) Rules had not been fulfilled.

(l) The impugned order passed in the above application is under challenge in this petition.

3.

Counsel appearing on behalf of the petitioner made the following arguments before the Court: - (a) The Administration without giving the petitioner an opportunity of reply, and in a totally preconceived, pre-judged action had suspended the petitioner without any application of mind or consideration of reply, and in a manner deliberately violated his rights by serving him an incomplete copy of the enquiry report, thereby effectively ensuring that he could not defend himself or file an adequate reply.

(b) The petitioner had been extremely unwell and was referred by the G.B. Pant Hospital at Port Blair to Chennai for specialized treatment, due to non-availability of such specialized treatment at Port Blair. The petitioner has accordingly gone to Chennai on after proper intimation to the office and his superiors. (c) The statutory provisions of vigilance manual and the Central Civil Service (CCA) Rules, 1965 covering the law on the subject of service of Charge Memorandum and the effects of non service of the same, suggests that the proceedings were without

jurisdiction specially when service had not occurred due to a medical situation which were not being considered as per law. The service of memorandum of articles of charges, never got off the ground at all, as there was never any service of the document on the petitioner.

(d) The mere claim of posting of a charge sheet on the door of the petitioner does not satisfy the requirements of law. Subsequent to the superannuation of the petitioner on April 30, 2021 without proper service of the articles of charge against him and with the suspension order dated March 16, 2021 being stayed by the Tribunal, the question of any proceeding and action as per rules to initiate the disciplinary proceeding against the petitioner does not even arise.

(e) After superannuation of the petitioner, the disciplinary authority, Inquiry Authority can only acquire jurisdiction from the President of India in accordance with procedure established by law.

(f) The specific point of the petitioner that he was under medical treatment and unable to receive service has not at all been examined by the Inquiry Officer and it has been ignored by the officer.

(g) Reliance has been placed on State of Punjab v. Khemi Ram reported in (1969) 3 SCC 271; Umasankar Chatterjee V.

Union of India reported in(1982) 1 CALLT88(HC); Union of India v. Dinanath Shantaram Karekar reported in (1998) 7 SCC 569; State of Punjab v. Amar Singh Harika reported in AIR (1996) SC 1313; State of Punjab and others v. Balbir Singh and others reported in AIR (1977) SC 629 to buttress the above submissions.

4.

Counsel appearing on behalf of the respondents opposed the above submissions made by the petitioner. He further submitted that the petitioner has received the Charge Memorandum through his personal email ID on April 30, 2021 and on the same date the Charge Memo was posted at the house of the petitioner, and therefore, the petitioner cannot say that it was not received by the petitioner. He stated that constructive delivery of Charge Memo is adequate to hold that it has been delivered. After the petitioner returned to Port Blair on April 24, 2021, he was under quarantine with his family members, and accordingly, the Charge Memo were sent to his residence on April 30, 2021 but the petitioner failed to open the door of his residence though the door was not locked from outside, and accordingly, Charge Memo was pasted on the wall of stair case adjacent to the main door of the residence.

5.

It is submitted by the counsel that the service of the charge sheet on the government servant follows the decision to initiate disciplinary proceeding and it does not precede or coincide with the decision. He

has placed reliance on the judgment of Delhi Development Authority v. H. C. Khurana reported in (1993) 3 SCC 196to make the above submission.

6.

We have heard Counsel appearing for both the parties and perused the judgments placed on record.

7.

Before examining the judgment cited by the parties, it would be relevant to delineate the provision of law applicable for initiation of disciplinary proceedings against the government employee. Rule 9 of the Central Civil Services (Pension Rules), 1972 applicable to the petitioner at the relevant point of time is quoted below: - "9. Right of President to withhold or withdraw pension

(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement : Provided that the Union Public Service Commission shall be consulted before any final orders are passed:

Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.

(2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings

under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. (b)The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his reemployment: - (i) shall not be instituted save with the sanction of the President, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

....

(6) For the purpose of this rule: - (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted: - (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the court.

8.

It appears from the said Rules that the disciplinary proceedings are required to be initiated before the superannuation of the employee

and if the same is not done before his superannuation, then the sanction of the President is required to be taken before proceeding against the employee. The crux of the arguments that have been put forward by Mr. Kabir, counsel appearing on behalf of the petitioner is that the petitioner was not served with the article of charges before his superannuation. According to him, the pasting of the charges on the wall of the house of the petitioner and the sending of the e-mail would not suffice as initiation of the disciplinary proceedings. He has submitted that the Tribunal has correctly held that the pasting of the charges on the wall was not good service as the petitioner was in a hospital but has wrongly held that the e-mail sent on April 30, 2021 was sufficient service.

The judgments relied upon by him are for the purpose of buttressing his argument that without receipt of the articles of charge by the employee, it cannot be stated that the disciplinary proceedings were initiated. According to him, since the petitioner retired on April 30, 2021 and only came to know of the charges much later, the entire process is vitiated and sanction from the President is required before proceeding against the petitioner. Some of the judgments cited by him are discussed below. 9.

In the case of State of Punjab v. Khemi Ram reported in(1969) 3 SCC 271it was held that an order issued to the concerned government servant who has been suspended is considered to be communicated to

him once it is issued and sent. The relevant paragraph of the judgment is extracted below:- "17...

In our view, once an order is issued and it is sent out to the concerned government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date.

An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word "communication" ought not to be given unless the provision in question expressly so provides. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid".

The above judgment does not assist the argument pursued by the counsel appearing on behalf of the petitioner as is patently clear from the underlined portion of the paragraph marked above. An employee cannot use nefarious means to evade a service and thereafter claim that he was not served and the initiation of the disciplinary proceedings is void ab initio.

10.

In the case of Umasankar Chatterjee V. Union of India reported in (1982) 1 CALLT88 (HC), it was held that there is distinction between an order of dismissal and an order of suspension. In case of order of suspension when it goes out of control of the authority concerned it becomes effective not only on the authority concerned but also on the government servant sought to be bound by it. The relevant paragraph of the judgment is delineated below: - "12. Much reliance has been placed on the above observation by the learned Counsel for the Corporation. We do not however, think that the observation is of any help to the Corporation. It is apparent from the observation that a distinction has been made regarding the points of time when an order of dismissal and an order of reversion or suspension become effective.

In the case of an order of reversion or suspension, when it goes out of the control of the authority concerned, that is to say, when it is dispatched to the Government servant either by post or by messenger, it becomes effective not only on the authority concerned in the sense that the order cannot be changed or modified, but also on the Government servant sought to be bound by it. This principle is not, however, applicable in the case of an order of dismissal in view of the consequences as pointed out in Amar Singh's case (supra ). When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him.

This, we think, was all that was meant by Untwalia J in the above observation in Balbir Singh's case. In view of the principles aforesaid, we hold that in the instant case, the impugned order of removal became effective when the same was received by the appellant through post in Calcutta, he having no prior knowledge of the same by any other means".

This judgment is in reference to receipt of an order of dismissal, and accordingly, has no precedential value in the present case. 11.

In the case of Union of India v. Dinanath Shantaram Karekar reported in (1998) 7 SCC 569, it was held that when the disciplinary proceeding is intended to be initiated by issuing a charge sheet the actual service is essential as the person to whom the charge sheet is issued is required to submit his reply and thereafter participate in the disciplinary proceeding. The relevant paragraph of the judgment is delineated below: - "10. Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him.

Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual service" must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated". The above case is completely distinct from the present facts as in the above case the charge-sheet was never served upon the employee. The above case further does not deal with the issue of the date when initiation of disciplinary proceedings takes place. 12.

Now, I would like to examine the judgment relied upon by counsel appearing on behalf of the respondent authorities. One may examine

the case of Delhi Development Authority v. H. C. Khurana reported in (1993) 3 SCC 196 wherein it was held that the word "issued" means that the decision to initiate the disciplinary proceedings is taken and translated into action by dispatch of charge sheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the government servant to evades service and frustrate the decision. The relevant paragraph of the judgment are delineated below: - "13. It will be seen that in Jankiraman also, emphasis is on the stage when 'a decision has been taken to initiate the disciplinary proceedings' and it was further said that 'to deny the said benefit (of promotion), they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee'.

The word 'issued' used in this context in Jankiraman it is urged by learned counsel for the respondent, means service on the employee. We are unable to read Jankiraman in this manner. The context in which the word 'issued' has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the charge-sheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. Obviously, the contrary view cannot be taken.

14. 'Issue' of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge-sheet and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman which have been accepted thereafter in para 17 in

the manner indicated above, do use the word 'served' in conclusion No. (4), but the fact of 'issue' of the charge-sheet to the employee is emphasised in para 17 of the decision. Conclusion No. (4) of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner.

15. The meaning of the word 'issued', on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the word 'issue' given in the Shorter Oxford English Dictionary include : 'to give exit to; to send forth, or allow to pass out; to let out; ... to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation'. The issue of a charge-sheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement. This is the sense in which the word 'issue' was used in the expression 'charge-sheet has already been issued to the employee', in para 17 of the decision in Jankiraman."

13.

From the reading of the judgment of the Supreme Court in H. C. Khurana (supra) it is clear that the moment the charge-sheet is dispatched by the authority concerned, the same is treated to be issued. Any contra reading to the same would frustrate the entire object of the Rules. The situation would have been different if the officer had framed the charge-sheet and merely kept the same in his drawer. However, the moment the charge-sheet is sent via post, email, by posting on the wall of the employee's home, one would assume that the disciplinary proceedings has been initiated. Actual receipt by the employee on a date after his superannuation of the above charge-sheet would make no difference as the initiation of the disciplinary proceedings by sending the same to the employee before

his superannuation would amount to sufficient service and initiation of the disciplinary proceedings. The service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and dispatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings.

14.

By a plain reading of the Rule, it is clear that the disciplinary proceeding should be initiated before the superannuation and in my view, the same was done by the authorities by pasting the same on the wall and by sending the e-mail. In fact, I am of the view, the order of the Tribunal holding that the pasting of the charge-sheet on the wall of the employee was not good service is incorrect and that portion of the order is set aside. Accordingly, the writ petition before us is dismissed.

15.

In light of the above findings, WP. CT/2/2022 is disposed of. 16.

There will be, however, no order as to costs.

17.

Urgent photostat certified copy of this judgment, if applied for, may be supplied to the parties upon compliance of usual formalities. (SHEKHAR B. SARAF, J.) 18.

I agree (KESANG DOMA BHUTIA, J.)