Dr.Sahadeva Singh vs Union Of India And Another
2010 Latest Caselaw 2073 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.2623/2010
%
                           Date of Decision: 20.04.2010

Dr.Sahadeva Singh                                        .... Petitioner
                     Through Mr.Sushil Dutt, Mr.Azhar Alam &
                             Mr.Vikram Singh, Advocates.

                                     Versus

Union of India and another                                .... Respondent
                  Through        Ms.Jyoti Singh & Mr.Ankur Chhibber,
                                 Advocates.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                     YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                       NO
3.   Whether the judgment should be reported                      NO
     in the Digest?



ANIL KUMAR, J.

*

The petitioner has challenged the order dated 5th March, 2010

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A.562 of 2010, titled as 'Dr.Sahadeva Singh v. Union of India

and another', dismissing the original application of the petitioner

seeking quashing of charge sheet issued against him by the

respondents.

Brief facts to comprehend the controversies are that a

memorandum dated 16th January, 2009 proposing to hold an enquiry

against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965 was

issued. Against the charge sheet issued against the petitioner dated 16th

January, 2009, a representation dated 23rd November, 2009 was made

by the petitioner for withdrawing the charge sheet, however, his

representation was rejected.

The articles of charges framed against the petitioner are as

follows:-

ARTICLE OF CHARGE-1

"1. That Dr.Sahadeva Singh, Deputy Commissioner (Crops), working in Horticulture Division of the Department of Agriculture & Cooperation in the Ministry of Agriculture was posted to Nation Rainfed Area Authority, NASC Complex, DPS Marg, Pusa, New Delhi on secondment basis vide Officer Order No.44011/21/2008-E-II dated 30th June, 2008 with immediate effect (Annexure 1). But Dr.Sahadeva Singh did not join his duties in NRAA till 24.10.2008 and had been absenting from duty unauthorizedly with effect from 02.07.2008 to 23.10.2008.

2. Thus by the above act, Dr.Sahadeva Singh, Deputy Commissioner (Crops) appears to have acted in a manner unbecoming of Government servant and thereby violated the provisions of Rule 3 of CCS (Conduct) Rules, 1964. (Annexure

2).

ARTICLE OF CHARGE-2

1. That in the original application No.1363/2008 filed by Dr.Sahadeva Singh, Deputy Commissioner (Crops) the Central Administrative Tribunal, Principal Bench, New Delhi has made the following adverse observations against the Dr. Singh:

"It is also settled law that postings and transfers are an incident of services. We do not find that there has been any violation of statutory rules or that any infirmity is noticeable in the action taken by the respondents. Even the plea of mala fide is not substantiated in the facts and circumstances of the case. It is observed that while on the one hand the applicant had gained experience and expertise over a period of time in the Crops Division of the Ministry, he had also worked for many years in the Rainfed Farming Systems Division, a fact that has been suppressed by him in the O.A." (Annexure-3)

2. It appears from the above adverse observations that Dr.Singh has acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3 of the CCS (Conduct) Rules, 1964.

ARTICLE OF CHARGE-III

1. that in the original application No.2182/2004 filed by Dr.Sahadeva Singh, Deputy Commissioner (Crops) the Central Administrative Tribunal, Principal Bench, New Delhi, has made the following observations against Dr.Singh:

"... He is under the mistaken belief that he would invoke the powers of the Tribunal to accelerate his career prospect by claiming seniority in the post of AD© from the date prior to his joining the post, which is nothing but an attempt to mislead the Tribunal and derive underserved and unlawful benefit. This attitude on part of the applicant is to be deprecated."

2. It appears from the above adverse observations that Dr.Singh has acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3 of the CCS (Conduct) Rules, 1964.

ARTICLE OF CHARGE-IV

1. Dr.Sahadeva Singh, DC (Crops) wrote a letter dated 04.07.2008 directly to Hon'ble Prime Minister of India (Annexure 5) with a copy endorsed to Union Home Minister, Cabinet Secretary and Commissioner of Police (Delhi Police) against Secretary (Agriculture & Cooperation), and other official/staff of Ministry of Agriculture DAC, New Delhi. Dr.Singh also wrote similar letters dated 11.8.2008 to Hon'ble

Agriculture Minister, letter dated 19.09.2008 to Hon'ble PM of India and copies endorsed to Chief Minister of Bihar, Cabinet Secretary and Secretary (Department of Agriculture & Cooperation) by passing the prescribed channel of communications (Annexure 6 & 7), a conduct which appears to be unbecoming of a government servant.

2. The Government of India's instructions issued vide DOPT's O.M No.11013/7/99-Estt. (A) dated 01.11.1999 and No.11013/6/94-Estt.(A) dated 27.5.1994 regarding representation from Govt. Servants on service matters are clear which clearly stipulates that submission of representation directly to higher authorities bypassing the prescribed channel of communication is a most objectionable practice contrary to official propriety and subversive of good discipline

3. Thus by the above act, Dr.Sahadeva Singh, Deputy Commissioner (Crops) appears to have acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3 of the CCS (Conduct) Rules, 1964.

ARTICLE OF CHARGE -V

1. That Dr.Sahadeva Singh, Deputy Commissioner (Crops), DAC, filed a complaint with the SHO, Police Station, R.K.Puram, New Delhi Annexure 10) against officials of DAC in a letter head containing his official designation of Deputy Commissioner, Government of India, Ministry of Agriculture, Department of Agriculture & Cooperation, Krishi Bhawan, New Delhi and the National Emblem, giving it colour of having been filed in his official capacity.

Thus on the one hand he used his official status and letter head to file a complaint against superior authorities without approval or order of the competent authority and on the other hand the same clearly appears to have been filed in his personal capacity. Section 3 of State Emblem of India (Prohibition of Improper Use)Act, 2005 (Annexure 11) prohibits specifically that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or, as the case may be the State Government, without the previous permission of the Central Government or

of such officers of that Government as may be authorized by it in this behalf.

2. thus by the above act, Dr.Sahadeva Singh, Deputy Commissioner (Crops) appears to have acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3 of the CCS (Conduct) Rules, 1964. By using the National Emblem in his letter, Dr.Singh has violated the provisions of Section 3 of State Emblem of India (Prohibition of Improper Use) Act, 2005.

ARTICLE OF CHARGE -VI

1. That Dr.Sahadeva Singh D.C (Crops) in his capacity as General Secretary, Technical Officers Association, Ministry of Agriculture has written a letter No.2-TOA(CAS)/2008 dated 27.06.2008 to Hon'ble Prime Minister criticizing the functioning of the Department of Agriculture & Cooperation and seeking restructuring.

2. By the above act Dr.Sahadeva Singh has directly criticized the policy matter of the Government of India.

3. Thus by the above act, it appears that Dr.Sahadeva Singh, Deputy Commissioner (Crops) has violated the provisions of Rule 9 of CCS(Conduct) Rules, 1964 (Annexure 12A) and has acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964.

The petitioner filed an Original Application challenging the charge

sheet, contending, inter-alia, that he is an outstanding scientist. The

petitioner also alleged facts pertaining to various judicial proceedings

initiated on his behalf, and the representations made by him to various

authorities including the Prime Minister. The petitioner was transferred

to the National Rainfed Area Authority (NRAA) on 30th June, 2008,

which was challenged by him, however, relief was declined to him. The

petitioner also alleged that some bad elements were sent by

Sh.P.K.Basu, Special Secretary to his house who had threatened the

petitioner with dire consequences and the matter was reported to the

Police.

The petitioner's Original Application against the transfer order

was dismissed by the Tribunal, and the writ petition filed by the

petitioner was also dismissed. The petitioner also averred that a

criminal complaint filed by him against the secretary of DOAC and the

respondent No.2, Sh.P.K.Basu which was not accepted by the

concerned Magistrate and a revision petition against the order is

pending. The petitioner on the basis of the various allegations about the

various proceedings initiated by him, had contended that the

respondents are motivated by mala fides to act against the petitioner

and he was not unauthorizedly absent from the duty, as leave was

sanctioned by the Horticulture Commissioner. Reliance was also placed

by the petitioner on the certificate issued by the Doctors of Safdarjung

Hospital.

The Tribunal considered the pleas and contentions of the

petitioner seeking quashing of charge sheet issued against him, and

held that the time was not ripe for the Tribunal to interfere in the

matter and the reliance was placed on 'Union of India vs. Upendra

Singh' (1994) 3 SCC 357; 'Union of India and another vs. Kunisetty

Satyanarayana, (2006) 12 SCC, 28 holding that at the Stage of issuance

of the charge sheet, the Tribunal has no jurisdiction to go into the

correctness or truth of the charges, as the Tribunal cannot take over

the function of the disciplinary authority. It was also held that the truth

or otherwise of the charges is a matter for the disciplinary authority to

go into and in judicial review the Tribunal cannot examine the

correctness or reasonableness of charges framed.

The Tribunal has dismissed the petition holding that on the basis

of the allegations made by the petitioner, it cannot be held conclusively

that the memorandum of charges had been issued with mala fide

intention, on the basis of pendency of the police complaint. It was held

that the charges may or may not be sustainable, but ex facie on the

basis of the material relied on by the respondents for issuing the charge

sheet, it cannot be inferred that charges are ex facie without any basis

and jurisdiction as the merits of the case could not be gone into at this

stage not correctness of the charges can be decided.

This Court has heard the learned counsel for the petitioner who

has very emphatically contended that though the complaint filed by the

petitioner against the respondent No.2 and another was not entertained

by the Metropolitan Magistrate, however, a revision petition is pending.

Learned counsel referring to the charges has contended that the

averments made against the parties in the litigation initiated against the

petitioner or at the instance of the petitioner will not make the act of the

petitioner amenable for disciplinary proceedings for misconduct.

Learned counsel has also referred to the order dated 6th April, 2009

passed in W.P.(C) No.6267 of 2008 whereby the writ petition against the

transfer order was dismissed. Review Application of the petitioner was

dismissed and a Special Leave Petition was filed which was also

dismissed by order dated 24th July, 2009, however, liberty was given to

the petitioner to make a representation before the concerned authorities

which was to be decided in accordance with law.

The learned counsel for the petitioner has not refuted that if a

number of charges are made against any person, and even if, one or two

charges are prima facie not made on the basis of material produced by

the department, the entire charge sheet is not to be quashed or

modified. The first charge against the petitioner is that he did not join

his duty in NRAA till 24th October, 2008, and he had been absenting

from duty unauthorizedly w.e.f. 2nd July, 2008 to 23rd October, 2008.

This is not disputed that the petitioner was transferred to NRAA,

however he did not join duty rather he challenged his transfer where he

did not succeed and his original application was dismissed. The

petitioner has contended that he was on leave on account of his medical

condition which was granted by the Horticulture Commissioner.

However, whether he was on leave or not is to be decided, as the plea of

the respondent is that the petitioner remained absent from duty

unauthorizedly. In the circumstances, on the basis of the allegations

made by the petitioner, it cannot be held prima facie that the charges

against the petitioner are ex-facie not made out. Similarly, on the basis

of alleged malafide, it cannot be held that the other charges are ex facie

not sustainable and such charges will not be established after a

detailed enquiry. The malafide alleged by the petitioner are the question

of facts and are to be established and on the basis of allegations made

by the petitioner which are not admitted by the respondent and are

rather categorically denied, it cannot be held conclusively that the

allegations made by the petitioner have been established conclusively.

The allegations made by the petitioner can be established by a detailed

enquiry and in the circumstances, the plea of the petitioner that the

charges alleged against the petitioner are without any basis cannot be

accepted.

On reading and perusal of the articles of charges, it cannot be

held that on the basis of the articles of charges imputed against the

petitioner no misconduct would be made out. On the basis of articles of

charges, whether misconduct would be made out or not will depend on

evidence produced before the enquiry officer and without considering

the detailed evidence which may be led by the parties, it cannot be held

that no misconduct is made out, nor it can be held that the charges

framed by the respondents are contrary to facts and law.

The learned counsel for the petitioner has relied on a decision of

this Court in Writ Petition (Civil) No.6499 of 2008, titled as 'Homi

Rajvansh IRS vs. Union of India, (1999) 7 SCC 409, to contend that no

charges are made out against the petitioner, and the memorandum of

charges is liable to be set aside. Perusal of Homi Rajvansh (Supra)

reveals that the charge sheet issued to the employee in that case by the

Central Board of Direct Taxes was challenged. The employee in that

case was on deputation and the authorities in NAFED had sought his

repatriation to his parent department, and they also initiated

disciplinary proceedings. The dispute in the matter was whether the

proceedings could be initiated on the advice of the Central Vigilance

Commission addressed to NAFED by the Central Board of Direct Taxes.

Relying on Upendra Singh (Supra), it was held that if a charge sheet is

issued without jurisdiction, or if it is, otherwise illegal, or has been

issued for mala fides reasons, then the Tribunal or Court can interdict

the departmental proceedings. Since the charge sheet was issued by the

Central Board of Direct Taxes and no malafide was imputed against the

Central Board of Direct Taxes. In the circumstances, it was held that

the allegations of mala fides made against the Upendra Singh could not

be extended to the officers of the Central Board of Direct Taxes, and

consequently, the petition was dismissed. Apparently, the case of the

petitioner is distinguishable. Similarly in 'Zunjarrao Bhikaji Nagarkar v.

Union of India and others', it was held by the Supreme Court that the

disciplinary proceedings cannot be initiated on the basis of suspension

and there must exit reasonable basis for disciplinary authority to

proceed against an employee. It was further held that wrong

application/interpretation of law is itself, is not a misconduct because

wrong decision is subject to a judicial supervision in appeal. In this

case a disciplinary proceeding for major penalty was issued on the

ground that while working as Collector/Commissioner, Central Excise,

he passed an original order in which he had favored a party by not

imposing any penalty on the said party even though the alleged party

had clandestinely manufactured and cleared the excisable goods and

evaded the excise duty willfully. In these circumstances, it was held by

the Supreme Court that a wrong interpretation of law cannot be a

ground for misconduct. It was further held that it will be a different

matter altogether, if it is deliberate and actuated by mala fides.

Apparently, the case of the petitioner is distinguishable. The petitioner

had remained absent unauthorizedly, and in the circumstances, it

cannot be said that all the articles of charges framed against the

petitioners are ex facie illegal or charge sheet has been issued without

jurisdiction. On the basis of the allegations made by the petitioner, it

cannot be held that the allegations made by the petitioner prima facie

constitute malafide and the memorandum of charges has been issued

on account of alleged mala fides.

The first charge against the petitioner is about unauthorized

absence with effect from 2nd July, 2008 to 23.10.2008. The writ petition

filed by the petitioner against his transfer had been dismissed and even

the Special Leave petition was dismissed. The second charge is about

the suppression of facts by the petitioner before the Tribunal in his

application filed by him against his transfer order and the third charge

is also about the observation of the Tribunal that the attitude on the

part of the petitioner was depreciable. The fourth charge against the

petitioner is violation of instruction issued vide DOPT's O.M

No.11013/7/99-Estt.(A) dated 1.11.1999 & No.11013/6/94 Estt.(A)

dated 27.5.1994 contemplating that by passing the concerned

authorities and channel of communication is a most objectionable

practice contrary to official propriety and subversive of good discipline.

The fifth charge against the petitioner is that he used his official status

and letter head of file a private complaint against the superior

authorities without approval or order of the competent authority. The

allegation is also of violation of Section 3 of the State Emblem of India

(Prohibition of Improper use) Act, 2005. The last charge is about directly

criticizing the policy matter of Government of India to the Prime

Minister.

The learned counsel for the petitioner has not been able to show

as to how the charges framed are contrary to any law. The charges

framed against the petitioner and the irregularity alleged against him do

not show prime facie that they are not made out and are the result of

the alleged malafide alleged by the petitioner. The truth or otherwise of

the charges is a matter for the disciplinary authority to go into. Judicial

review cannot extend to the examination of the correctness or

reasonableness of a decision. The purpose of judicial review is to ensure

that the individual receives fair treatment and not to ensure that the

authority after according fair treatment reaches, on a matter which it is

authorized by law to decide, a conclusion which is correct in the eyes of

the Court. A mere charge sheet does not give rise to any substantial

cause of action, because it does not amount to an adverse order which

affects the right of any party unless the same has been issued by a

person having no jurisdiction to do so. In the case of petitioner it cannot

be held conclusively at this stage that the charge sheet is issued on

account of malafide alleged by him. His complaint with the Police is

pending. But these facts are not sufficient to quash the charge sheet.

This is not the plea of the petitioner that the charge sheet has been

issued by a person who is not authorized or is contrary to any law or

without jurisdiction. Merits of case cannot be gone into by this Court at

this stage.

In the circumstances, we do not find any illegality or irregularity

in the order of the Tribunal, which would entail any interference by this

Court in exercise of its extraordinary jurisdiction under Article 226 of

the Constitution of India.

The writ petition, in the facts and circumstances, without any

merit, and it is, therefore, dismissed.

ANIL KUMAR, J.

APRIL 20, 2010                                 MOOL CHAND GARG,J.
'VK'