Mr. Prithwish Sain vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1738 Del

JUDGMENT

Mukundakam Sharma, J.

1. Being aggrieved by the order passed by the respondents dismissing the petitioner from service pursuant to a disciplinary proceedings and also the order passed by the Central Administrative Tribunal dismissing the Original Application by order dated 26th May, 2005, this writ petition is filed by the writ petitioner prying for quashing and setting aside of both the aforesaid orders with a direction to reinstate the petitioner in service at Bhaba Atomic Research Centre at Mumbai with consequential benefits and also restoration of the official accommodation from which he was evicted.

2. The petitioner joined the Bhaba Atomic Research Centre at Mumbai as Scientific Officer on 31.7.1993. After three years of training, he was posted in Environmental Assessment Division of Bhaba Atomic Research Centre. Service of the petitioner was guided by terms and conditions of appointment which also included one condition that the place of duty of the petitioner initially would be at Mumbai but the officer could be transferred to any part of India or any of the constituent Units of Department of Atomic Energy as exigencies of service might demand.

3. The respondents found the work and conduct of the petitioner unsatisfactory and some unpleasant entries about his work were also recorded in his Annual Confidential Records. The Director of the Bhaba Atomic Research Centre passed an order transferring the petitioner from Health Physics Division, BARC, Mumbai to Indian Rare Earth Limited, Alwaye in Kerala by issuing an order dated 27.7.1998. The petitioner was relieved on 29.7.1998 to report at the new place of posting. However, on receipt of the aforesaid order of transfer, the petitioner immediately challenged the same before the Mumbai Bench of the Central Administrative Tribunal by filing an Original Application registered as OA No. 992/1998. The said petition filed against the order of transfer was dismissed by the Tribunal on 10.6.1999 on merit. As against the said order, the petitioner also filed a writ petition in the Bombay High Court, which was registered as Writ Petition No. 2184/1999, which also was dismissed on 20.12.1999. Therefore, the aforesaid order of transfer passed against the petitioner became final and binding.

4. Consequent upon his transfer from Mumbai to Alwaye, Kerala, the petitioner was asked to vacate the official residential accommodation allotted to him in Mumbai after his normal retention period of two months from the date of issuance of relieving order. As the residential accommodation was not vacated, so the eviction proceedings were taken out and were initiated against him and eviction order was also passed. The petitioner preferred an appeal on 3.11.1998 which was also dismissed on 13.6.2000. The City Civil Court, however, allowed four weeks' time to the petitioner to vacate the quarter, which was extended up to 14.9.2000. Despite the said order, delivery of the possession of the said quarter was obtained by the respondents with police aid. The petitioner sent an application to the Chief Justice of the Bombay High Court on 18.9.2000 complaining against the forcible eviction, which was converted into a suo motu writ petition. After reply was filed by the Director of the Centre, the Bombay High Court dismissed the writ petition on 22.9.2000. A Special Leave Petition filed against the said order in the Supreme Court was dismissed at the stage of admission on 30.3.2001.

5. Since the petitioner did not comply with the order of transfer and since he also unauthorisedly entered the ESS Laboratory, a departmental proceeding was initiated against the petitioner by issuing him a memorandum of charge dated 18.8.1999. The said charge sheet reads as follows:

Article-I

Whereas it is alleged that Shri Prithwish Sain, Scientific Officer/C, Health Physics Division, Bhabha Atomic Research Centre (BARC), Trombay who was transferred to the Health Physics Unit of BARC in India Rare Earths Ltd., Alwaye, Kerala has refused to comply with the orders. Shri Sain who was relieved of his duties at BARC, Trombay on 29.7.1998 (FN) has not joined the Health Physics Unit at Alwaye and has been overstaying the joining time unauthorisedly w.e.f. 10.8.1998 (FN). AND WHEREAS by the aforesaid conduct the said Shri Sain has shown lack of devotion to duty and has thus acted in a manner unbecoming of a Government Servant thereby contravening Sub-rules (1)(ii) and (1)(iii) of Rule 3 of the CCS (Conduct) Rules, 1964.

Article II

And whereas it is alleged that Shri Prithwish Sain, Scientific Officer.C, who was relieved of his duties in the Health Physics Division of BARC, Trombay on 29.7.1998 (FN), on transfer to Health Physics Unit, Indian Rare Earths Limited, Alwaye, Kerala unauthorisedly entered the ESS Laboratory and tried to take away two sample result log books containing sensitive data. AND WHEREAS by the aforesaid conduct Shri Sain has shown lack of integrity and has thus acted in a manner unbecoming of a government servant thereby contravening the Sub-rules (1)(i) and (1)(iii) of Rule 3 of the CCS (Conduct) Rules, 1964.

6. The aforesaid charge sheet was sent to the petitioner by post. The same, however, was received back undelivered. A copy of the same, therefore, was pasted on the door of the residence of the petitioner on 10.4.2000. A panchnama was also drawn. Despite service of the said memorandum of charge in the aforesaid manner on the petitioner, he did not choose to file any statement of defense.

7. The disciplinary authority consequently appointed the Deputy Establishment Officer Mr.P.K.M. Kurup as the Enquiry Officer and Mr. P.P. Cherian, Administrative Officer II, BARC as the Presenting Officer. The Enquiry Officer entered into the enquiry and issued notice to the petitioner regarding the date of the proceedings. On different dates notices were issued to the petitioner. Despite the same, petitioner never appeared in any of the proceedings whereupon the petitioner was proceeded ex parte. Evidence of parties was recorded and the Enquiry Officer, on completion of the enquiry, submitted his report holding that both the charges levelled against the petitioner stand proved. The said report was submitted on 8.11.2000. The disciplinary authority, who is the President of India, after perusal of the enquiry report passed an order agreeing with the findings of the Enquiry Officer and holding that both the articles of charges have been proved. By the order passed by the disciplinary authority a penalty of dismissal from service was imposed upon the petitioner.

8. The petitioner challenged the said order of punishment in the Principal Bench of the Central Administrative Tribunal at New Delhi. Initially the Tribunal refused to condone the delay and dismissed the Original Application but upon direction issued by this court in WP(C) No. 3588/2003 to condone the delay and reconsider the case of the petitioner, the Original Application filed by the petitioner was taken up. In the said proceedings the petitioner was supplied the copies of the documents and the petitioner was permitted to withdraw the said Original Application with liberty to take recourse to remedy available under the law.

9. Thereafter the petitioner filed the Original Application before the Tribunal challenging the disciplinary proceedings and the order of the disciplinary authority. The said Original Application was registered as OA No. 1210/2004

10. Several grounds were taken by the petitioner, who appears in person, before us. The first submission was that the initiation of the departmental proceeding itself was illegal and in violation of the principles of natural justice as according to him no charge sheet was served upon the petitioner.

11. The next contention that was raised is that in the enquiry proceedings different dates were fixed by the disciplinary authority, yet the petitioner was not informed about the said dates by issuing notice to him. It was also submitted that notices, if any, shown to have been issued to the petitioner are all fabricated and manufactured for the purpose of making up of the case for ex parte proceedings against the petitioner. It was submitted that the petitioner was not given and afforded reasonable opportunity of hearing. It was also submitted that both the Enquiry Officer and disciplinary authority were biased against the petitioner, which is proved by the very fact that an eviction proceeding was taken out against the petitioner although his matter relating to enquiry into his misconduct was pending.

12. We also heard learned counsel for the respondents on the pleas raised by the petitioner. The counsel for the respondents has drawn our attention to the records of the case in order to substantiate that there was no violation of the principles of natural justice either in initiating the departmental proceeding or conducting the same. It was also submitted that the order passed against the petitioner imposing the punishment of dismissal from service is legal and justified.

13. After hearing the counsel for the respondents and the petitioner in person and having considered their arguments, we proceed to dispose of this writ petition by giving reasons for our decision.

14. The charge sheet which was framed against the petitioner contained two specific and definite charges. The documents by which the articles of charge framed against the petitioner were proposed to be sustained are listed at Annexure-III of the charge sheet memo dated 18.8.1999. Names of the witnesses by whom the article of charge framed against the petitioner were proposed to be sustained are also listed at Annexure-IV of the charge sheet dated 18.8.1999. A copy of the said charge sheet was sent through post to the petitioner at his residential address which is the official accommodation provided by the respondents. The same, however, was received back by the respondents undelivered. Consequently a copy of the same was pasted on the door of the residence of the petitioner i.e. the official accommodation provided by the respondents. The said pasting of the charge sheet was done on 10.4.2000. A panchnama was also drawn on the same date indicating pasting of the charge sheet on the door of the flat occupied by the petitioner and allotted to him.

15. Despite service in the aforesaid manner, no written statement of defense was received from the petitioner. Thereafter, the respondents appointed the Enquiry Officer as no statement of defense was received from the petitioner. The Enquiry Officer after his appointment fixed the case for preliminary hearing on 12.7.2000 in the office of the Enquiry Officer and a notice to that effect was issued on 23.6.2000. A copy of the said notice was also sent to the petitioner at his residential address, which he occupied being provided by the respondents. A copy of the said notice was also endorsed to the Presenting Officer directing him to be present before the Enquiry Officer for hearing fixed.

16. On 3.7.2000, the Enquiry Officer received a copy of the communication dated 28.6.2000 addressed to the Director of the Centre by the petitioner stating therein, among other things, that the contents of the said registered envelope was a printed sheet and that the language of the printed sheet is not known to him. That letter clearly establishes that the petitioner received the notice issued by the Enquiry Officer fixing the date of hearing of the enquiry on 12.7.2000 and he knew that enquiry was pending. The Enquiry Officer by way of abundant caution arranged to deliver another copy of the notice dated 23.6.2000 to the petitioner at his residential address through Shri A.D. Edgar, ASO, Investigation Cell and Shri Ajay Dhall, LDC, Vigilance Section of the Centre. However, despite repeated calls from outside none responded for the petitioner and, therefore, S/Shri A.D. Edgar and Ajay Dhall, the two employees of the Centre, pasted the said notice on the flat of the petitioner and a panchnama was accordingly signed by both the said employees.

17. It is, therefore, established that despite the knowledge and information about fixing the date of the enquiry by the Enquiry Officer, the petitioner did not appear before the Enquiry Officer on the date fixed. A decision was taken by the Enquiry Officer to proceed in the enquiry proceedings against the petitioner ex parte as the petitioner failed to appear before him. An order to that effect was passed which is indicated from the daily order sheet No. 4 dated 12.7.2000. The proceeding was thereafter fixed on 18.8.2000 for hearing. Notice for the said date and copy of the daily order sheet were sent to the petitioner at his residential address by registered post on 12.7.2000. As the acknowledgment of the registered AD letter sent to the petitioner to his residential address was not received by 25.7.2000, copies of the notice of the regular hearing and daily order sheet No. 4 containing the proceedings of the preliminary hearing were got pasted on the door of the residence of the petitioner under a panchnama, which is recorded in the daily order sheet dated 20.7.2000. The Enquiry Officer proceeded with the proceedings and directed for issuance of summons to all the prosecution witnesses directing them to be present before him on the dates fixed for their examination. On 18.8.2000, when the matter was taken up by the Enquiry Officer, the charged officer was not present but the witnesses along with the Presenting Officer were present before him. Witnesses were examined in the said proceedings.

18. On scrutiny of the records we find that the Enquiry Officer issued a notice to the petitioner on every date of the hearing of the enquiry proceedings. Subsequently when the petitioner was evicted from the departmental accommodation, the documents filed by the Presenting Officer were sent to his home town address and also to the office to which the petitioner was transferred by registered AD. Both the aforesaid envelopes were received back from the postal authorities with the remarks Addressee not living there, returned to sender and no such address in IRE Co. returned to sender respectively.

19. The Enquiry Officer later on coming to know that the petitioner is residing at c/o Mrs. Kiron Bhatnagar, Vile Parle (E), Mumbai sent a copy of the written brief submitted by the Presenting Officer to the petitioner at the aforesaid address. The same was acknowledged by Mrs. Kiron Bhatnagar. However, no communication was received from the petitioner even thereafter nor any intimation was received from Mrs.Kiron Bhatnagar. All the communications that have been sent to the petitioner at the address in which he was residing, which was his official accommodation provided by the respondents and also at Mumbai, some of them were received by the petitioner and some were returned back undelivered. Those which have been received by the petitioner in respect of the said communication, the petitioner has taken up a stand that in none of these communications intimation was sent to him regarding enquiry proceedings but some ordinary papers were sent for misleading everybody.

20. The aforesaid allegation, however, could not be proved by the petitioner by adducing corroborating and reliable evidence in support of the allegation made.

21. On completion of the enquiry, a report was submitted by the Enquiry Officer finding the petitioner guilty of both the charges. The disciplinary authority perused the records and on being satisfied passed an order of dismissal of the petitioner from service.

22. The allegation that the petitioner had no knowledge either about issuance of the charge sheet or of any date of enquiry proceedings cannot be accepted in view of the reliance placed before us on the communications sent to the petitioner intimating him about the dates of enquiry and communication of the charge sheet to him. The petitioner had definite knowledge about commencement of the departmental proceeding against him and continuation of the same from time to time. Despite the said fact he did not choose to appear before the Enquiry Officer and contest the proceedings to counter the allegations made against him. Instead he had taken a stand that whatever communications were sent by the Enquiry Officer were all envelopes without containing the relevant documents. This allegation on the face of it is unacceptable.

23. The learned Tribunal has also appreciated the documentary evidence placed before it and on appreciation thereof has clearly come to a finding that it is absolutely clear that the Enquiry Officer had tried his best to inform the petitioner of the hearing fixed in the disciplinary proceedings but despite knowing the date and place of proceedings, the petitioner intentionally avoided the same. The Tribunal also held that it is unbelievable that the petitioner would not have come to know of the disciplinary proceedings. It is also established from the records that in order to make out a case of violation of principles of natural justice, the petitioner avoided giving his own permanent address but gave different addresses at different points of time including the address of his counsel. The said conduct was noted by the learned Tribunal holding that it appears the petitioner was avoiding to give his permanent address wanting to create a ground for challenging the proceedings.

24. It was also sought to be submitted before us that pasting of the charge sheet and other notices of hearing at his address was not proper service.

25. We are, however, unable to agree with the aforesaid allegation of the petitioner. The disciplinary authority as also the Enquiry Officer tried their best to get the charge memo and the notices fixing the date of hearing served on the petitioner personally at his address, which could not be served as the petitioner was avoiding service of the same and, therefore, they were pasted at the address where he was residing. The same was done in order to provide to the petitioner reasonable opportunity of hearing but by his own action and conduct he avoided joining the enquiry proceedings and, therefore, the stand taken by him that the service made by pasting is not a proper service cannot be accepted. During the course of his arguments he relied upon the provisions of Rule 30 of the CCS (CCA) Rules, which provides that every order, notice and other process made or issued under these rules shall be served in person on the Government servant concerned or communicated to him by registered post. It is provided therein that initially all the documents should be sent to the concerned official by registered post and when such document sent by registered post acknowledgment due is not accepted by the addressee and is returned to the sender, further action could be taken as if the documents have been served and due notice has been given to the employee concerned.

26. In our considered opinion further action in the nature of pasting could always be done so as to enable the court to arrive at a satisfaction that sufficient steps and reasonable action was taken by the concerned department to inform the petitioner about the proceeding and to provide reasonable opportunity to the petitioner.

27. Therefore, we are of the considered opinion that charge sheet as also the notices of the hearing in the departmental proceedings were duly deemed to have been served on the petitioner and despite the knowledge, the petitioner chose not to appear in the departmental proceedings. The allegation made in that regard is accordingly found not proved. It was also submitted before us that the daily order sheets, which were prepared by the Enquiry Officer are fabricated documents. That is a very wild allegation and no corroborating and supporting documentary evidence or any other evidence could be placed and led by the petitioner in support of the said allegation. The daily order sheet signed by the Enquiry Officer and the Presenting officer are available on record, which we have perused and on perusal of the same we are satisfied that the same are maintained duly and properly during the course of enquiry by the Enquiry Officer. An allegation of bias was also made out against the Enquiry Officer and the respondent No. 2. Similar allegations were made before the learned Tribunal also, who rejected the same on the ground that no material for the same was placed.

28. We find that the aforesaid finding and the conclusion arrived at by the learned Tribunal in respect of allegation of mala fide suffers from no infirmity. The Tribunal in that regard has referred to a proceeding before the Mumbai Bench of the Tribunal where the petitioner had himself admitted that there was no ill-will between him and the Director of the Centre. It is also established from the records that the petitioner received advance TA/DA for carrying out the order of transfer but did not join at the place of posting in Alwaye, Kerala and thereafter he initiated legal proceedings to stall the aforesaid order of transfer. In order to prove mala fide two questions are involved, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. In the absence of any materials to prove mala fide, we are unable to accept the contention of the petitioner who appears in person before us.

29. Therefore, we find no error and infirmity in the judgment and order passed by the learned Tribunal. The petition has no merit and is dismissed.