V.K. Bali, J. (Chairman)

1. Sequel to a regular departmental enquiry, the applicant, who stood retired by the time order dated 9.9.2008 came to be passed, has been inflicted with the punishment of 25% cut in his monthly pension for five years. The reduction is permanent and this amount is not to be released after five years. It is this order which is under challenge in the present Original Application filed by Dr. M. B. Pahari, the applicant herein, under Section 19 of the Administrative Tribunals Act, 1985.

2. The applicant was departmentally proceeded on the following article of charge:

2.1 Shri M. B. Pahari while functioning as Director/DTC, Doordarshan Kendra, Delhi during the year 1997-98 did not follow the required norms for recruitment of stringers as per the provision contained in O.M. No. 4/4/83-P.III dated 4.4.83 issued by Director General, Doordarshan. He did not take any action for empanelment of stringers in terms of the said guidelines nor did he utilize the panel of stringers prepared prior to 1994. He also failed to ensure that services of stringers were requisitioned only through a form signed by the Director or Chief Producer (NEWS) of the Doordarshan Kendra containing the details about the location and time of the event to be covered and further failed to minimize the expenditure for hiring the stringers. He was found instrumental in allotting work of royalty based programmes/free lanced programmes to the firms owned by wife, relatives, friends of Shri S. K. Mathur, Chief Producer, DDK, delhi though these firms were not empanelled as stringers in terms of aforesaid guidelines.

2.2 By the above act, Shri Pahari failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Government Servant thereby contravening the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of Central civil Services (Conduct) Rules, 1964.

Inasmuch as, on a limited question raised at this stage we are remitting this matter to the disciplinary authority for proceeding against the applicant from the stage the enquiry report came to be submitted by the enquiry officer, we are not giving the facts in all their minute details. Suffice it may, however, to mention that the enquiry officer vide his report dated 30.7.2004 (Annexure A-8) held the charge against the applicant as partly proved. We may extract para 7.0 with the caption Findings of the enquiry report, which reads as follows:

7.0 Findings

7.1 After going through the documentary evidences, deposition of witnesses produced during the course of enquiry proceedings, written briefs of the Presenting Officer and the Charged Officer, and my analysis of evidence at para 6.0 my findings in respect of the Article of Charge along with all its imputations against the Charged Officer, Shri M. B. Pahari, DDG (under Section), DDK, New Delhi is partly proved.

In para 6.12 of the report, the enquiry officer observed as follows:

In view of the above oral and documentary evidences the Article of Charge along with all its imputations is not proved against Shri M. B. Pahari, DDG (under Section), DDK, New Delhi.

The enquiry officer has given a detailed report. We may refer to some of the observations made by the enquiry officer because of which, it appears, the charge against the applicant was partly proved. The same read, thus:

5.3 These charges were formed arbitrarily and without having any understanding on the difference between Stringers and free lancers. Stringers are supposed to operate camera. They are basically cameramen and owner of cameras. Stringers means a part-time correspondent for news media. Whereas free-lancers are persons qualified in film making by hiring the services of cameramen and editors etc. Free-lancer means a person who sells services without long term commitment to any one. This was clearly defined by the Prosecution Witness. SW-6 (Shri R.C.Bakhri) in course of his reply to Q.2 during cross-examination. A firm, therefore, cannot be empanelled as Stringer. Only an individual, who is a cameraman or knows camera operation, can be empanelled as Stringer vide DG:DD Guidelines issued in 1983. Thus, the statement of misconduct against the CO in Article-I of annexure-II of the Charge Memo dated 05-09-2002 that he had not empanelled firms or agency as Stringers could not sustain The prosecution could not place any single document to prove that the Director knew that these three firms were in relation to Shri S. K. Mathur and knowingly the CO favoured these firms as alleged. If the duration was not mentioned, Shri Mathur should be responsible but not the Director, i.e., the Charged Officer. Defence Documents DD-3 & DD-4 are sufficient to prove that DDK, Delhi was not controlling the NEWS set-up at Delhi Kendra in 1997-98 like other Regional Kendras in the country with the order of Shri R. Basu, the then DG: Doordarshan issued on 13-08-1993. A separate office DD-News under separate budget and staff controlled the empanelment, recruitment, hiring and utilization of Stringers. The Chief Producer (News) and ADG (News) were responsible for all matters related to Stringers. The CO had nothing to do on stringers empanelment and booking. Thus, the Disciplinary Authority without going into details framed the charges in Article-I as detailed in Annexure-I of the Charge Memo. All SWs (except SW-8) and DWs also confirmed this in their deposition and cross-examination. SW-8 (Shri S.C.Bhalla, Inspector CBI) was not knowing that Shri Mathur was not working as the Chief Producer (NEWS) during 1997-98. Otherwise, this mistake would not have been there in Annexure-II of the Charge Memo dated 05-09-2002. If we go by the Article of Charge as stated in Annexure-I, the reply of the CO, as recorded in above paragraphs, is complete. But unfortunately, the learned PO deliberately dealt mainly with Annexure-II of the Charge Memo in his brief to prove the misconduct of the CO during 1997-98. What is Annexure-II Statement of imputations of misconduct or misbehaviour in support of the Article of Charge framed against the CO. It is a supporting document. This is not the Article of Charge. Dealing enthusiastically with Annexure-II and by-passing the main charges in Annexure-I is a wasteful exercise perhaps with the motive to shield the main accused of PE 19(A)/98-DLI dated 23-12-1998. This reflects the biased attitude. So to keep the records straight, CO is constrained to add few more paras in his brief.

Above are only some of the observations that would tend to show that the charge against the applicant was not fully proved. We have not extracted all such observations which may go in favour of the applicant. The extracted observations are by way of illustration to show that the charge was actually only partly proved. Admittedly, the disciplinary authority did not agree with the report of the enquiry officer and vide office memorandum dated 7.9.2006 (Annexure A-7) send the disagreement note as also the report of the enquiry officer to the applicant. Reason for disagreement accompanying the memorandum aforesaid reads as follows:

On examination of the guidelines dated 04-04-1983, it has been observed that the said guidelines were addressed to Directors of all the DDKs. Directors of all the Kendras have been personally responsible for empanelment, utilization of stringers and minimization of expenditure on the stringers.

2. Since the said guidelines were addressed to Directors of all the DDKs, the guidelines are applicable to DDK, Delhi also unless it is clarified by a specific Order that the guidelines are no more applicable to DDK, Delhi. As per records available, no such Order was issued by DG:DD. Earlier DD-News was a part of DDK, Delhi and all matters related to News and Current Affairs programmes were shifted to DD News when it became a separate office in 1993. DDK, Delhi does not produce any news bulletin. However, apart from the production of news, services of stringers are used for preparation of current affairs programmes also. Though DDK, Delhi does not produce any news bulletin, the Kendra produces current affairs programmes. If services of stringers are required for production of any current affairs programmes, DDK, Delhi will have to follow the extant guidelines for empanelment and hiring of Stringers. They cannot take the plea that DG:DDs said guidelines are not applicable to DDK, Delhi and it is applicable only to DD-News. If any stringers were hired during the tenure of Dr. Pahari at DDK, Delhi for production of current affairs programmes, he should have followed the instructions contained in DD:DDs said O.M. dated 04.04.83. The said guidelines were applicable to DDK, Delhi also. Since he has utilized the services of stringers, he is supposed to follow the guidelines on the subject.

3. In view of the above, this ingredient of Article of Charge has been found to be proved against Dr. Pahari. Thus there is disagreement in respect of ingredient (1) of the Article of Charge with the findings of Inquiring Authority.

Perusal of the disagreement note would clearly manifest that it is a final expression of opinion of the disciplinary authority. The disagreement note is not tentative. The charge against the applicant has been held established before putting the applicant to notice with reasons for disagreement of the disciplinary authority. That is not permissible in law. The applicant was departmentally proceeded under Central Civil Services (Classification, Control and Appeal) Rules, 1965. Rule 15(2) of the said Rules reads as follows:

15.(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.

The Honble Supreme Court in Lav Nigam v. Chairman and MD, ITI Ltd. and Anr. (2006) 9 SCC 440 held, thus:

10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt.

3. Final expression of opinion by the disciplinary authority while disagreeing with some components of the charge as not proved by the enquiry officer, is against the mandate of the provisions contained in Rule 15(2) of the Rules of 1965, as also against the principles of natural justice. The same has to be set aside. Once, disagreement note is set aside, all further proceedings culminating into order dated 9.9.2008 have also to be set aside. So ordered. The disciplinary authority, however, would be at liberty to proceed against the applicant from the stage of receipt of enquiry report by it. If the said authority may still be of the opinion that the report of the enquiry officer does not merit acceptance in toto and that all components of the charge against the applicant stood proved, the opinion of the disciplinary authority would be tentative even though, supported by reasons and final decision would be arrived at by the said authority only after taking into consideration the view-point of the applicant, as he may express on the note of dissent. The applicant will be restored his full pension. Surely, if the applicant is again visited with some penalty, it would always be open for the disciplinary authority to impose a cut in his pension for whatever period it may deem appropriate from the future pension of the applicant.

4. The Application is disposed of in the manner indicated above. There shall, however, be no order as to costs.