N. Deyanandan vs. Comptroller and Auditor General of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934** **OP (CAT).No. 189 of 2012 (Z)** **---------------------------IN OA.1095/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ================** **PETITIONER(S): -------------** **N. DEYANANDAN, AGED 48 YEARS S/O.NEELAKANNTAN, ACCOUNTANT, GE 18 SECTION OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA THIRUVANANTHAPURAM, RESIDING AT 'DYUTHI' MARUTHUR, VATTAPARA PO, THIRUVANANTHAPURAM -28.** **BY ADVS.SRI.ELVIN PETER P.J.** **SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** ## **RESPONDENT(S):** - **--------------** **1. COMPTROLLER AND AUDITOR GENERAL OF INDIA GOVERNMENT OF INDIA, NEW DELHI.** **2. THE SENIOR DEPUTY ACCOUNTANT GENERAL (ADMN) OFFICE OF THE ACCOUNTANT GENERAL (A&E) KERALA THIRUVANANTHAPURAM.** **3. THE ACCOUNTANT GENERAL (A&E) KERALA THIRUVANANTHAPURAM.** **4. SHRI.S.K.JAKHOTIYA, DEPUTY DIRECTOR** **OFFICE OF THE DIRECTOR GENERAL OF AUDIT (CENTRAL) C-25, AUDIT BHAVAN, BANDRA-KURIA COMPLEX BEHIND IT BUILDING, BANDRA, MUMBAI 400 051.** **BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV.SRI.V.V.ASHOKAN,SC,IA & AD** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 19.01.2012, THE COURT ON 10-10-2012 DELIVERED THE FOLLOWING:** ## **OPCAT 189/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF THE OA.1095/2010 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P2 TRUE COPY OF THE REPLY FILED BY THE RESPONDENT IN OA.1095/2010. EXT.P3 TRUE COPY OF THE ORDER DT.17.10.2011 IN OA.1095. EXT.P4 TRUE COPY OF THE LIST OF JUNIOR'S OF THE PETITIONER WHO WERE PROMOTED AS ACCOUNTS OFFICERS.** ## **RESPONDENTS' EXHIBITS** ## **NIL** **// TRUE COPY //** **P.A. TO JUDGE** **SD** ## **THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ---------------------------------------- O.P.(CAT)No.189 of 2012 ---------------------------------------Dated this the 10[th] day of October, 2012 ## **JUDGMENT** ## **Ravikumar, J.** The applicant in O.A.No.1095 of 2010 before the Central Administrative Tribunal, Ernakulam Bench is the petitioner in this original petition. He is an Accountant under the second respondent. Though copies of all the documents produced along with Original Application as also the copy of the Original Application are produced as Ext.P1 in this original petition, for the sake of convenience, the documents have been referred to in this judgment in the manner they are set out in the Original Application before the Tribunal. It is challenging the penalty imposed on him as per Annexure-A3 order bearing No.Sr.DAG (A)/C.Cell/DA/ND/2007/Tr 391 dated 17.7.2009 and also Annexure -A4 order of the Appellate Authority rejecting the appeal against Annexure-A3 Viz, order bearing No.AG (A&E)/C.Cell/DA/ND/ Appeal/2009/Tr 671 dated 26.11.2009 that the petitioner filed the said Original Application. 2. Annexure-A1 memorandum of charges dated 17.7.2007 was issued by the second respondent, the disciplinary authority, to the petitioner carrying the following allegations:- O.P.(CAT)No.189/2012 2 While working as Senior Accountant, GE 18 Section, Office of the Accountant General (A&E), Thiruvananthapuram he had disobeyed the verbal directions of the Deputy Accountant General (GE) to meet him in his chamber on 22.5.2007. Since he did not turn up a note was issued to him to report to the Deputy Accountant General (GE) at 2.25 p.m. on the same day. He failed to comply with the said directions and thereupon the Section Officer of GE 18 Section was instructed in writing on 23.5.2007, 24.5.2007 and 25.5.2007 to direct the petitioner to meet the Deputy Accountant General (GE) on the respective dates. In spite of such repeated written directions of the Deputy Accountant General (GE), transmitted to him through the Section Officer, the petitioner did not turn up to meet the Deputy Accountant General (GE) in his chamber. It is alleged that by the aforesaid willful and blatant insubordinate behaviour of disobeying the lawful and reasonable directions of the Deputy Accountant General (GE) the petitioner had behaved in a manner unbecoming of a Government servant and thus violated the provisions of Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 (for short `the Rules'). Annexure-III was the list of documents by which the said articles of charges framed against him were proposed to be sustained. The detailed statement of imputations O.P.(CAT)No.189/2012 3 of misconduct were furnished as per Annexure-II. The petitioner herein refuted the allegations and submitted the explanation to the effect that he had discharged his duties alloted to him in GE-18 to the best of satisfaction of the Section Officer and Branch Officer and that he thought stepping into the chamber of the Deputy Accountant General (GE) might result in some unfavourable actions against him. AnnexureA5 is a note issued by the Deputy Accountant General (GE) directing the petitioner to report before him at 2.25 p.m. on 22.5.2007. As per Annexure-A6, the Deputy Accountant General (GE) directed all officials and staff of GE 9, GE 18 and GE 26 along with the Branch Officer to meet Group Officer at 2.30 p.m. on 22.5.2007. As per Annexure-A7 note, Deputy Accountant General (GE) directed the petitioner to meet him at 3.25 p.m. on 23.5.2007. Annexure-A8 in Ext. P1 was then issued to the petitioner as to why for the above actions of insubordination, action should not be taken against him. Annexures-A9 and A10 were then issued to the petitioner by the 4[th] respondent directing him to meet DAG (GE) on those respective dates. However, the petitioner failed to comply with the directions. The petitioner submitted Annexure-A11 in response to Annexure-A8 memo. Later, dissatisfied with the explanation submitted by the petitioner it was decided to initiate disciplinary proceedings against him and one O.P.(CAT)No.189/2012 4 K.C.Parangodan, Senior Accounts Officer, Office of the Accountant General (A&E), Kerala was appointed as the Inquiring Authority to enquire into the charges framed against the petitioner. Thereupon, the petitioner took up an objection against his appointment as the Enquiry Officer on the ground that he is much lower in status compared to the fourth respondent whose orders are alleged to have been disobeyed by the petitioner. According to him, the very appointment of the said officer as Enquiry Officer would vitiate the enquiry. As per AnnexureA14 dated 8.8.2007 the petitioner stated that there occurred no circumstances to take any action against him and therefore, requested to exonerate him from the charges. Suffice it to say that despite such objections the enquiry was proceeded with and the petitioner had also participated in the enquiry. After the culmination of the enquiry Annexure-A19 report was submitted by the Enquiry Officer to the disciplinary authority. On being furnished with the copy of the enquiry report the petitioner submitted his explanation as per Annexure-A20. Thereafter, a personal hearing was afforded to him on 18.5.2009. Later, Annexure-A3 order was passed imposing the penalty of reduction to the lower post of Accountant in the pay Band - 1 of Rs.5200-20200 plus Grade Pay of Rs.2800/- with effect from 20.7.2009, until he is found fit, after a period of three years from the date of the order, to be O.P.(CAT)No.189/2012 5 restored to the higher post of Senior Accountant. Further, the period of reduction was ordered to have the effect of postponement of future increments of pay on restoration to the higher post and that on repromotion after having been found fit, he would not retain his original seniority in the higher post that had been assigned to him prior to the imposition of penalty. On being aggrieved by Annexure-A3 order of the disciplinary authority imposing the aforesaid penalty on him the petitioner preferred Annexure-A22 appeal before the Appellate Authority. The Appellate Authority afforded the petitioner a personal hearing and thereafter dismissed the said appeal as per Annexure-A4 order. As noted earlier, it is challenging Annexure-A3 and A4 that the petitioner herein approached the Central Administrative Tribunal by filing O.A.No.1095 of 2010. 3. The petitioner contended before the Tribunal that the very action in not granting permission to examine the fourth respondent, whose directions were alleged to have been disobeyed by the petitioner, as a witness and denying him an opportunity to examine the fourth respondent in the enquiry vitiated the enquiry. In that context, it is to be noted that the charge against the petitioner was that he had not met the fourth respondent despite specific, oral and O.P.(CAT)No.189/2012 6 written directions. As a matter of fact, the petitioner did not dispute the same and, in fact, in his explanation itself he had virtually admitted the said fact though attempted to assign the reason fear factor, as mentioned above. In the circumstances, the petitioner cannot have any sustainable grievance against it. It is also contended that considering the fact that the charge is only that he did not meet the fourth respondent despite repeated oral and written directions the punishment imposed on him as per Annexure-A3 which was confirmed by AnnexureA4, is disproportionate to the gravity of the offence. It is contended that for such a minor misconduct the punishment of reduction to a lower post was wholly unwarranted and therefore, highly excessive. Various other contentions have also been raised before the Tribunal to assail Annexures-A3 and A4, referred as such in Ext.P3 order, the impugned orders passed by the disciplinary authority as also the Appellate Authority in the disciplinary proceedings initiated against him. The Tribunal took note of the fact that virtually, as per the explanation dated 25.5.2007 to the memorandum of charges the petitioner has admitted that he did not respond to the request made by the Group Officer made under the directions from the Deputy Accountant general (GE). What he has stated by way of explanation was that he had not stepped into the chamber of the Group Officer on account of the fear O.P.(CAT)No.189/2012 7 that something unfavorable might happen in case he stepped in the chamber of the Group Officer. It is contended that the disciplinary as well as the appellate authorities have failed to take into consideration the aspect of fear expressed by the petitioner in meeting the fourth respondent. The Tribunal, after a careful consideration of the impugned orders, found that there was absolutely no illegality or irregularity in the procedures adopted so as to vitiate the disciplinary proceedings. The petitioner has been afforded with ample opportunities to adduce his evidence and there was absolutely no violation of the principles of natural justice. It was found by the Tribunal that, on account his explanation carrying, virtually, an admission regarding the crux of the allegations against him that he had not turned up to the chamber of the Group Officer and also the Deputy Accountant General (GE) despite specific written directions to that regard and that the fact all the witnesses were examined in the enquiry in his presence and that he was given opportunity to cross examine them, the finding of the Appellate Authority regarding the absence of any procedural irregularity or illegality and reasonableness as regards the quantum of the penalty need no interference at all. After careful evaluation of the impugned orders before it, the Tribunal found that the main issue to be decided at the enquiry was whether the petitioner had refused to meet the higher O.P.(CAT)No.189/2012 8 officers despite written request and, if so, whether it would amount to misconduct or not. It was found that actually, there was nothing to be proved in the case as the petitioner himself had admitted the said fact in his explanation. After a careful evaluation of the rival contentions in the light of the materials on record as also taking in to consideration the jurisdictional limit for interference with departmental proceedings in view of the decisions of the Hon'ble Apex Court including the decisions in **Parma Nanda** v. **State of Haryana** ( **(1989) 2 SCC 1777** ) and **State Bank of India** v. **Samarendra Kishore Endow** ( **(1994) 2 SCC** **537** ) the Tribunal held that the limited jurisdiction of the Tribunal in such circumstances is only to see whether punishment imposed is shockingly disproportionate to the gravity of the misconduct proved. The Tribunal found that failure to report before a higher officer despite written instructions in that behalf not only once but on several occasions would certainly amount to misconduct. It is based on such appreciation of the entire issue that the Tribunal declined to interfere with the impugned orders and dismissed the original petition. 4. We have heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 1 to 3. O.P.(CAT)No.189/2012 9 5. Evidently, the crux of the charge against the petitioner, as rightly put by the Tribunal, is that he had failed to report before higher officers in pursuance of specific written instructions in that behalf, not only once but on several occasions. A perusal of AnnexuresA11, A13 and A14 would go to show that the conclusion arrived at as per the impugned order, by the Tribunal that the petitioner virtually admitted the fact that he had not reported to the higher officers despite the specific written instructions to that effect which was preceded by oral instructions cannot be said to be faulty. Even in this writ petition, the petitioner had not raised a contention of compliance with such lawful directions. The legality and sustainability of the disciplinary proceedings as such and also the penalty imposed by the disciplinary authority have already passed through scrutiny at two different stages, initially, by the Appellate Authority and then, by the Central Administrative Tribunal. The finding that the petitioner had committed the misconduct by disobeying the lawful and reasonable directions of the Deputy Accountant General (GE) was established before the disciplinary authority and the Appellate Authority as also the Tribunal found no ground or reason calling for interference. It is fairly a settled position that in a case of this nature unless and until the petitioner is able to establish a case of illegality in the matter of the O.P.(CAT)No.189/2012 10 procedures adopted in the disciplinary proceedings or any illegality or impropriety in any finding as being opposed to the settled position of law, the decision of the Tribunal calls for no interference at the hands of this Court. The petitioner has also not been able to establish that it is a case of no evidence. In fact, the stand that is reflected through the explanations would reveal that he cannot raise such a contention that it is a case of no evidence and, in fact, he had not raised such a contention. Then, as rightly held by the Tribunal the question is only whether the penalty imposed on the petitioner is shockingly disproportionate or not. In this case, as held by the disciplinary authority and the Appellate Authority which were virtually confirmed by the findings of the Tribunal the action on the part of the petitioner can only be styled as an insubordination amounting to misconduct. Obedience from subordinates in regard to all lawful and reasonable directions from the higher officers is essential and inevitable for the smooth functioning of any institution. No one can be permitted to flout lawful instructions of higher authorities with impunity The sense of fear, as adverted to earlier, assigned as a reason by the petitioner in this case for not entering into the chambers of the higher officers can only be taken as ruse for escaping the culpability. The adamant attitude of the petitioner reflected through the explanation and also at O.P.(CAT)No.189/2012 11 the stage of disciplinary proceedings and also the pleadings before the Tribunal would undoubtedly reveal that the petitioner is not having resipiscence. No element of repentance reflects in any such proceedings and virtually, the petitioner, even after admitting the factum of failure to report before the higher officer pursuant to the directions for that behalf attempts only to justify his misconduct. Taking such misconduct on the part of an employee lightly may make others also to follow such deed and, in such eventuality, the entire affairs of the office would go pell-mell. We are on the point that in an office like the office of the Accountant General discipline, obedience and dedication to work are highly essential. That apart, we find no reason to interfere with the impugned order passed by the Tribunal, in the circumstances This original petition lacks merit and accordingly, it is dismissed. Sd/- **THOTTATHIL B. RADHAKRISHNAN Judge** Sd/- **C.T.RAVIKUMAR Judge** TKS