Manish Garg, Member (J)
1. This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"(i) quash and set aside the memorandum of charges dated 19.09.2017 (Annexure A-1), inquiry report submitted by the inquiry officer dated 15.03.2018 (Annexure A-2), order of punishment dated 24.07.2018 (Annexure A-3), order of appellate authority dated 31.07.2019 (Annexure A-4);
(ii) consider the case of the applicant for regularization on the post of Jr. Accounts Officer at par with his counterparts i.e. w.e.f. 04.06.2018 or any other date as per the available record and the applicant be awarded all consequential benefits;
(iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice."
2. Brief facts of the case are that the applicant joined the post of Accountant with the respondent department as a long term contract employee on 23.11.2000 and thereafter was promoted/re-designated on the post of Jr. Accounts Officer (JAO) w.e.f. 01.01.2006. It is submitted that the respondents notified the services regulations by amending the National Highways Authority of India (Recruitment, Seniority and Promotion Regulations, 1996 (for short, Regulations 1996) wherein a provision was made to regularize the long term contract employees. It is submitted that applicant was eligible to be considered in terms of this provision. However, in terms of clause (k) it was stipulated that though who are not clear from vigilance angle and facing disciplinary proceedings are not required to be regularized. It is further submitted that the respondents considered and regularize the counterparts of applicant on the post of Accountant in terms of promotion order dated 04.06.2018 whereby juniors to the applicant were considered and regularized. It is submitted that in respect of applicant the Executive Committee took the decision to get for the vigilance clearance and hence it was decided by the Executive Committee vide its decision dated 03.05.2018 that in 8 cases where vigilance clearance was pending, they would be considered for regularization after receiving the vigilance clearance. It is further submitted that the applicant was in receipt of charge sheet dated 19.09.2017 (Annexure A-1) for the allegation mentioned therein. It is submitted that the charge sheet has been issued under Rule 16 of CCS (CCA) Rules, 1965 for inflicting the punishment under Rule 11 of CCS (CCA) Rules, whereas NHAI has framed and notified its own regulations, namely Regulations 1996.
3. Learned counsel for the applicant submitted that in accordance with the Regulation 25, which pertains to residuary matters only where the regulations framed by NHAI are silent on any of the aspect, the provisions of CCS (CCA) Rules are applicable and not otherwise. It is also submitted that even under Regulation 14 penalties have been defined, namely, major and minor penalties. It is further submitted that even the conduct rules have been defined and CCS (Conduct) Rules are not applicable whereas the charge sheet has been issued for violating the CCS (Conduct) Rules. Hence, the charge sheet is per se illegal, non est and arbitrary. The applicant has submitted his representation to the charge sheet on 09.10.2017. Thereupon, the respondents have appointed an Inquiry Officer (IO) to conduct the enquiry into the allegation leveled against the applicant. The IO submitted his report on 15.03.2018 holding the applicant guilty of the charge for not pointing out the discrepancies in rates in words and figure and not taking cognizance of Clause 9 of preamble to BOQ while releasing interim payment. On receipt of the inquiry report, applicant submitted his representation on 23.04.2018 whereupon without considering the representation of the applicant, respondent No. 2 issued the punishment order inflicting the punishment of withholding of promotion for a period of 5 years in terms of Rule 11 of CCS (CCA) Rules. It is submitted by the applicant that perusal of the aforesaid order dated 24.07.2018 reveals that the defense of the applicant raised by him in his representation was not considered and hence the Disciplinary Authority (DA) has violated the law laid down by Hon'ble Supreme Court in the case of Mahavir Prasad vs. State of U.P., : AIR 1970 SC 1302 wherein the Hon'ble Supreme Court mandated the departmental authority to pass speaking order dealing with all the grounds raised by the employee. Aggrieved, the applicant filed statutory appeal on 10.09.2018 raising various pleas and contention. The Appellate Authority (AA) disposed of the appeal vide order dated 31.08.2019 modifying the punishment order to that of censure on the ground of parity without even considering the fact that censure is not the specified penalty under Rule 13 of CCS (CCA) Rules. Hence, the entire proceedings are bad in law. Thereafter, in the month of October 2019, the applicant was regularized on the post of JAO w.e.f. 01.08.2019. It is contended by the applicant that his counterparts were regularized in terms of order issued in the year 2018 i.e., w.e.f. 04.06.2018, whereas in respect of applicant it was decided to regularize his services only on receipt of vigilance clearance as evident from the decision of Executive Committee dated 30.05.2018 as circulated on 04.06.2018.
4. In view of the above factual position, it is submitted that the entire proceeding including the charge sheet is bad in law and non est and as a result applicant is entitled to be considered for regularization at par with his counter parts who were regularized in the year 2018, i.e., w.e.f. 04.06.2018. It is also submitted that applicant was planning to file the OA before this Tribunal impugning the aforesaid order, however, due to lockdown in the month of March 2020 and thereafter, he could not file the same. The OA was required to be filed on or before 30.07.2020. The applicant taking resort to the decision of the Hon'ble Supreme Court in Re: Cognizance for Extension of Limitation, Suo Motu Writ Petition (Civil) No. 3/2020 dated 08.03.202(sic). The applicant further submitted that the respondents meanwhile issued a draft seniority list of cadre of JAO wherein he has been placed below his juniors whereas he is entitled to get regularization w.e.f. 04.06.2018 alongwith his counterparts from 04.06.2018 and hence he is required to be placed at the appropriate place in the seniority list. Hence this OA.
5. The learned counsel for the respondents contended that the NHAI (Conduct, Discipline and Appeal) Regulations, 1997, along with amendments thereto were repealed vide Gazette Notification dated 11.09.2012. Further, NHAI made amendment to the Regulations 1996 vide Gazette Notification dated 11.09.2012 by inserting Regulation 21A thereby making CCS (Conduct) Rules, 1964 and CCS (CCA) Rules, 1965 applicable to the officers and employees of the NHAI in the matter of conduct and discipline. Subsequently, the said Regulation 21A was further amended vide Gazette Notification published in the Gazette of India on 23.11.2012. As such, NHAI (Conduct, Discipline and Appeal) Regulations, 1997 do not exist on the date of issue of the charge sheet and NHAI adopted CCS (CCA) Rules, 1965 and CCS (Conduct) Rules, 1964 in the matters related to conduct and discipline. The minor penalty charge sheet was served to the applicant for his misconduct and misbehavior under Rule 16 of the CCS (CCA) Rules, 1965 vide Memorandum dated 19.09.2017. Learned counsel contended that the CCS (CCA) Rules, 1965 were made applicable to the officers and employees of the respondents, as explained above. Therefore, the plea of the applicant that the CCS (CCA) Rules or the CCS (Conduct) Rules are not applicable to him is incorrect and contrary to the records. It is further contended that the due process as per CCS (CCA) Rules has been followed in the case of the applicant. It is also submitted that the inquiry report was submitted on 06.04.2018 is factually incorrect. In fact, the inquiry report dated 15.03.2018 was received by CGM (Admn.), who marked it to GM (HR) on 21.03.2018. It is further submitted that the applicant has admitted his guilt in the proceedings of the first hearing dated 08.03.2018 and on second hearing dated 09.03.2018.
6. After, hearing the arguments at length, both learned counsels also filed their written submissions.
7. Learned counsel for applicant submitted that the applicant has no role to play in the matter and he released all the payments on the direction of his superiors. He committed no fraud or conspiracy. There is no loss to NHAI either financial or otherwise by the applicant. In the light of the above, the order of censure dated 31.07.2019 may be recalled and quashed.
8. The moot issues to be determined in the present OA are:-
a) In the case of imposition of minor penalty "Censure", whether it is mandatory to follow clause. (b) of sub-rule (1) of rule 16 of the CCS (CCA) Rules, 1965 for holding an enquiry in the manner laid down in sub-rules (3) to (23) of rule 14 in every case in which the DA is of the opinion that such an inquiry is necessary, as applicable to NHAI
b) Whether the applicant is entitled to regularisation and from which date in case of imposing of minor penalty of "Censure"
9. With a view to find answers to above questions, reference is drawn to the provisions/Rule position in respect to the imposition of minor penalty:-
NHAI (Conduct, Discipline & Appeal) Regulations, 1997
Regulation 13
- Reprimand
- Withholding of increment or promotion.
- Demotion to a lower post or grade or to a lower stage in his incremental scale.
- Recovery from pay of the whole or part of any pecuniary loss caused to the Authority by the officer or employee.
(2) No officer or employee shall be subjected to the penalties specified in clauses (b), (c), (d), (e), (f) or (g) of sub-regulation (1) except by an order in writing signed by the disciplinary authority, and no such order shall be passed without the charge or charges being formulated in writing and given to an officer or employee so that he may have reasonable opportunity to answer them in writing or in person, as he prefers, and in the latter case his defence shall be taken down in writing and read to him: Provided that the requirements of this sub- regulation may be waived, if the facts on the basis of which action is to be taken have been established in a court of law or Court Martial or where the officer or employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without injustice to the office or employee.
NHAI (Conduct, Discipline & Appeal) Regulations, 1997
11. Penalties
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:
Minor Penalties -
- censure;
- withholding of his promotion;
- recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iii a) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
- withholding of increments of pay;
25. Residuary matters:
Matters with respect of which no specific provisions have been made in these regulations, shall be regulated under the provisions of the Central Civil Services (Conduct, Classification and Appeal) Rules, 1965, as amended from time to time, and the instructions issued there under by the Central Government.
14. Procedure for imposing major penalties
(3)Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
- the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
- a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-(a) a statement of all relevant facts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
16.Procedure for imposing minor penalties
(1) Subject to the provisions of sub-rule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after- (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub- rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(1) Enquiry mandatory in certain types of the penalty of withholding of increments:-
It has been decided in the meeting of National Council held on the 6th and 7th November, 1967, that in cases where increments are withheld for a period of more than three years or where increments are stopped with cumulative effect or where such stoppage is likely to affect adversely the pensionary entitlement, the procedure of holding an enquiry should invariably be followed.
As the Ministry of Finance etc. are aware, clause (b) of sub-rule (1) of rule 16 of the CCS (CCA) Rules, 1965 makes provisions for holding an enquiry in the manner laid down in sub-rules (3) to (23) of rule 14 ibid in every case in which the disciplinary authority is of the opinion that such an inquiry is necessary. In view of the decision of the National Council, mentioned in the preceding paragraph, it has been decided that, notwithstanding the provision contained in rule 16 (1) (b) of the CCS (CCA) Rules, 1965, if in a case it is proposed, after considering that representation, if any, submitted by a Government servant, to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period or if the penalty of withholding of increments is likely to affect adversely the amount of pension payable to the Government servant, an enquiry shall invariably be held in the manner laid down in sub-rules (3) to (23) of rule 14 ibid.
[MHA OM No. 7/3/67-Ests. (A) dated the 19th January, 1968]
(7) Promotion of employees on whom any penalty has been imposed-
The Staff Side of the National Council, at its meeting held on 27th and the 28th January , 1971 raised the following points:-
(i) 'Censure' should not be a bar to eligibility to sit for a departmental/promotional examination or for promotion;
(ii) Where the responsibility of an employee for any loss is indirect, he should not be debarred from being considered for promotion during the period of recovery of the loss; and
(iii) A distinction should be made between stoppage of increments and reduction to a lower stage of the pay scale and in the former type of cases, the employees should not be debarred from being considered for promotion.
2. As regards the first point, under existing instructions, every person eligible for promotion and in the field of choice has to be considered for promotion. The fact of the imposition of the minor penalty of censure on a Government servant does not by itself stand against the consideration of such person for promotion, as his fitness for the promotion has to be judged, in the case of promotion by seniority, on the basis of an overall assessment of his service record, and in the case of promotion by selection on merit, on the basis of his merit categorisation which is again based upon an overall assessment of his service record. So far as the eligibility of a Government servant who has been awarded the penalty of censure, to appear at a departmental/promotional examination is concerned, the same principles would apply, viz. that he cannot, merely because of the penalty of censure, be debarred from appearing at such an examination. In case, however, the rules of such an examination lay down that only those eligible persons can be allowed to appear at the examination who are considered to be fit for the purpose, the fitness of an eligible candidate, who has been awarded the penalty of censure, to appear at the examination has to be considered on the basis of an overall assessment of his service record and not merely on the basis of the penalty of censure.
3. As regards the other two points mentioned in paragraph 1 above, while it is not possible to lay down any hard and fast rules in this regard, and it is for the competent authority to take a decision in each case having regard to its facts and circumstances, it is considered necessary to reiterate the existing instructions on the subject. Recovery from the pay of a Government servant of the whole or part of any pecuniary loss caused by him to Government by negligence or breach of orders, or withholding of increments of pay, are also minor penalties laid down in rule 11 of the CCS (CCA) Rules. As in the case of promotion of a Government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty. While, therefore, the fact of the imposition of such a penalty does not by itself debar the Government servant concerned from being considered for promotion, it is also taken into account by the Departmental Promotion Committee, or the competent authority, as the case may be, in the overall assessment of his service record for judging his suitability or otherwise for promotion or his fitness for admission to a departmental/promotional examination (where fitness of the candidates is a condition precedent to such admission).
[Cabinet Sectt.(Department of Personnel) OM No. 21/5/70-Ests.(A) dated the 15th May, 1971].
(7A) The attention of the Ministry of Finance etc. is invited to MHA OM No. 39/3/59-Estt.(A) dated 31.08.1960, OM No. 7/28/63-Estt.(A) dated 22.12.1964 and OM No. 22011/3/77-Estt.(A) dated 14.07.1977 [since revised and consolidated vide OM No. 22011/4/91-Estt.(A) dated 14.09.1992] which lay down the guide-lines for following the 'sealed cover' procedure and for granting benefits with retrospective effect on the "complete exoneration" of the official concerned. The scope of the term "complete exoneration" was very wide, resulting in denial of benefits even to those who had not been awarded any of the prescribed penalties as a result of disciplinary proceedings but were only issued a warning. There is also in vogue the practice of issuing "recordable warning" to Government employees which affect their career prospects. The matter has, therefore, been examined carefully and the following decisions have been taken:-
(i) As clarified in the Ministry of Home Affairs OM No. 39/21/56-Estt.(A) dated 13.12.1956, warning is administered by any authority superior to a Government employee in the event of minor lapses like negligence, carelessness, lack of thoroughness, delay etc. It is an administrative device in the hands of superior authorities for cautioning the Government employees with a view to toning up efficiency and maintaining discipline. There is, therefore, no objection to the continuance of this system. However, where a copy of the warning is also kept in the Confidential Report dossier, it will be taken to constitutes an adverse entry and the officer so warned will have the right to represent against the same in accordance with the existing instruction relating to communication of adverse remarks and consideration of representations against them.
(ii) Where a departmental proceeding has been completed and it is considered that the officer concerned deserves to be penalised, he should be awarded one of the recognized statutory penalties as given in Rule 11 of the CCS (CCA) Rules, 1965. In such a situation, a recordable warning should not be issued as it would for all practical purposes, amount to a "censure" which is a formal punishment and which can only be awarded by a competent disciplinary authority after following the procedure prescribed in the relevant disciplinary rules. The Delhi High Court has, in the case of Nadhan Singh Vs. Union of India also expressed the view that warning kept in the CR dossier has all the attributes of "censure". In the circumstances, as already stated, where it is considered after the conclusion of disciplinary proceedings that some blame attached to the officer concerned which necessitates cognizance of such fact the disciplinary authority should award the penalty of "censure" at least. If the intention of the disciplinary authority is not to award a penalty of "censure", then no recordable warning should be awarded. There is no restriction on the right of the disciplinary authority to administer oral warnings or even warnings in writing which do not form part of the character roll.
(iii) Where the departmental proceedings have ended with the imposition of a minor penalty, viz, censure, recovery of pecuniary loss to the Government, withholding of increments of pay and withholding of promotion, the recommendation of the DPC in favour of the employee, kept in the sealed cover, will not be given effect to. But the case of the employee concerned for promotion/confirmation may be considered by the next DPC when it meets after the conclusion of the departmental proceedings. If the findings of the DPC are in favour of the employee, he may be promoted in his turn if the penalty is that of "censure" or "recovery of pecuniary loss caused to the Government by negligence or breach of orders", In the case of employees who have been awarded the minor penalty of "withholding of increments" or "withholding of promotion" promotion can be made only after the expiry of the penalty.
(iv) If a recordable warning has been issued to an officer as a result of disciplinary proceedings before the issue of this Office Memorandum and the case of the officer concerned for promotion is still under consideration, he should be treated as having been "censured". The officer will also have the right of representation against such warning and such representation shall be dealt with by the competent authority as if it were an appeal under the relevant disciplinary rules. [Deptt. of Personnel & A.R. O.M. No. 22011/2/78-Estt.(A) dated the 16th February, 1979]
(2) Minor Penalty - holding of inquiry in specific circumstances:-
The Staff Side of the Committee of the National Council (JCM) set up to consider revision of CCS (CCA) Rules, 1965 had suggested that Rule 16 (1) should be amended so as to provide for holding an inquiry even for imposition of minor penalty, if the accused employee requested for such an inquiry.
2. The above suggestion has been given a detailed consideration. Rule 16 (1-A) of the CCS (CCA) Rules, 1965 provide for the holding of an inquiry even when a minor penalty is to be imposed in the circumstances indicated therein. In other cases, where a minor penalty is to be imposed, Rule 16 (1) ibid leaves it to the discretion of disciplinary authority to decide whether an inquiry should be held or not. The implication of this rule is that on receipt of representation of Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that in inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the disciplinary authority could, after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice.
[Deptt. of Personnel & Training OM No. 1101218/85-Ests.(A) dated 28th October, 1985]
10. In view of the above facts and circumstances of the case, the OA is disposed of with the following finding on above questions:
a) In case of imposition of minor penalty of "censure", whether it is mandatory to follow clause (b) of sub-rule (1) of Rule 16 of the CCS (CCA) Rules, 1965 for holding an enquiry in the manner laid down in sub-rules (3) to (23) of Rule 14 in every case in which the DA is of the opinion that such an inquiry is necessary as applicable to NHAI
The learned counsel for the applicant may contend that the case of the applicant may fall under clause (ii) of Rule 11 CCS Rules or Rule 13 (b) of NHAI conduct Rules therefore entitled to full-fledged enquiry as contemplated under Rule 16 (1) (b) of CCS conduct Rules.
On harmonious construction of the provisions of NHAI Conduct Rules and CCS Rules, in facts of the present case, the issue whether there was non-compliance of the Rules 14 need not be looked into in facts and circumstances of the present case on following counts-i. The AA already taken into account all the grounds urged in his appeal in detail. The AA after analysing the material available on record came to following conclusion vide its Order dated 31.07.2019:-
"(iii) Further, in reply to Q4, as recorded in the proceedings of first hearing dated 08.03.2018 as available in the Inquiry Report, the following statement of the Appellant is recorded, which has also been signed by the Appellant:
A4. The Accused Officer stated that there was an oversight from him as the total value of LOA match with total quantity and total rate. However, he has not made his working calculation as port of his noting.
(iv) Also, in reply to Q1, as recorded in the proceedings of the second hearing dated 09.03.2019 as available in the Inquiry Report, inter alia, the following statement of the Appellant is recorded, which has also been signed by the Appellant:
A1..............
.............
He was having substantial work load and was supposed to check the calculation at early as possible. He solely replied upon the bid evaluation committee and did not check thoroughly. He has committed mistake due to oversight but not deliberately and therefore this shall not be considered lack of devotion towards duty and gross negligence towards discharge of his duties. There is no further submission from his side.
Xxx xxx xxx
(xii) The charges against the Appellant are for not pointing out the discrepancies in rates on figures and words. It is incorrect to say that no loss has occurred to NHAI, as the Arbitral Award has been in favour of the contractor and appeal of NHAI against the award is sub-judice in the High Court of Delhi in OMP No. 234/2012. Further, NHAI has incurred litigation cost in defending the case in Arbitration and before the High Court of Delhi. In case, the court order goes against the NHAI, the differential amount may be payable along with interest.
(xv) The charges against the Appellant are for not pointing out the discrepancies in rates on figures and words. The order of prevalence of amount in words over amount in figures should have been followed as per conditions of contract agreement. It is also observed that even while submitting an appeal, the Appellant has indicated incorrect and wrong figures. It is also observed that even while submitting an appeal, the Appellant has indicated incorrect and wrong figures/units, as detailed below, which shows his careless approach:
(a) The amount in USS in LOA indicated in appeal and reminder by the Appellant is USS 11,0878,068.88, whereas the correct amount is USS 11,078,068.11.
6) The amount indicated by the Appellant in appeal and reminder is Rs. 94,65,0000/- for 348,000 Cu M of Pond Ash, whereas the Correct amount in BOQ is Rs. 94,65,60,000/-.
(c) The figure indicated by the Appellant in reminder as "Rs. 3480000" is not in Rupees, but the estimated quantity in CuM as per BOQ.
(xvi) The Appellant cannot abdicate his responsibility for doing diligence while recommending the case for release of payment, as per instructions in this regard.
xxx xxx xxx
12. AND WHEREAS, on the basis of the above, it is established that the Appellant had failed to point out the discrepancy in the rates in words and figures in the BOW against item No. 2.02 (b) by taking cognizance of Clause 9 of the Preamble to BOQ, thus exhibited lack of devotion towards his duty and shown gross negligence towards discharge of his duties, causing loss to NHAI, as detailed in foregoing paragraphs. As such, the Appellant has failed to establish that the decision of the Disciplinary Authority to impose minor penalty vide Order dated 24.07.2018 is erroneous. On the similar charges, the disciplinary proceedings for minor penalty were also initiated against Shri R.K. Bhatt, Ex-Manager (FaA), PIU-Allahabad and a minor penalty of 'Censure' has been imposed on him vide Order dated 21.05.2019.
13. NOW THEREFORE, after taking into account the appeal and reminders of Shri Shyam Sunder Kumar, the Appellant herein and the facts and circumstances of the case, especially in view of the fact that another office (namely Shri R.K. Bhatt, Ex Manager (F&A) against whom the disciplinary proceedings for minor penalty were initiated on similar charges has been imposed the minor penalty of 'Censure', I am of considered opinion that ends of justice will be met, if the Minor Penalty of Withholding of Promotion for a period of five years' imposed by the Disciplinary Authority vide Order dated 24.07.2018 is modified to 'Censure' as per Rule 11 of the CCS (CCA) Rules, 1965."
ii. By virtue of its order, the AA modified the minor penalty of "withholding of promotion for a period of five years" imposed by Disciplinary Authority to that of "Censure".
iii. The applicant in his representation(s) before DA did not ask for any open enquiry in clear terms. He never stated in his representations that he wishes to lead evidence in support of his case. He has not denied the allegations on the basis of facts but has simply taken a stand that it was not applicant but somebody else who was responsible for the negligence and it was not part of his duty to point out discrepancies.
iv. Even otherwise, the NHAI Conduct Rules do not contemplate holding of a full-fledged enquiry as contemplated under CCS Rules. Since the AA has already reduced the punishment to that of Censure only by way of well- reasoned and speaking order, which is found to be consonance of the proviso to the Rule 13 of NHAI Conduct Rules, there is substantial compliance of the principles of natural justice and no prejudice has been caused to the applicant in present case. Had there been the punishment other than that of Censure, the situation would have been entirely different, wherein the full-fledged enquiry ought to have been conducted since it would have grave and serious impact on the applicant's future prospects as the same would have been nothing less than a case of major penalty. In that view of the matter, in the peculiar facts and circumstances of the case, I do not find it necessary to consider the submissions advanced by learned counsel Shri S.K. Gupta for the applicant.
v. The Staff Side of the Committee of the National Council (JCM) set up to consider revision of CCS (CCA) Rules, 1965 had suggested that Rule 16 (1) should be amended so as to provide for holding an inquiry even for imposition of minor penalty, if the accused employee requested for such an inquiry.
B) Whether the applicant is entitled to regularisation, if so, from which date, in case of minor penalty of "Censure"
There is no doubt that a reading of the provisions of Rule 13 of the NHAI (Conduct, Discipline & Appeal) Regulations, 1997, invariably gives an impression that withholding of increments or withholding of promotion are invariably distinct and separate from each other. However, it is necessary here to draw a distinction between promotion and postponement of promotion/keeping promotion in abeyance during the currency of punishment. For instance by withholding of increment from pay we would like to take the matter to a larger context. Whether sealed cover proceedings have been followed and promotion delayed on account of currency of penalty and the recommendations of the selection committee were kept in a sealed cover. Even a censure awarded to him and any currency would render him as one of the blameworthy character. Thus, eligibility of the applicant to be considered for promotion comes into existence only after the currency of penalty is over. When the penalty is under currency promotion is delayed, which is the consequence for deferment of seniority, leading to delayed promotion. The applicant cannot agitate against the same as the case of double jeopardy. The Government of India recommendations in this regard are as under:-
"7) Promotion of employees on whom any penalty has been imposed-
The Staff Side of the National Council, at its meeting held on 27th and the 28th January 1997 raised the following points:
(i) Censure should not be a bar for eligibility to sit for a departmental/promotional examination or for promotion
(ii) Where the responsibility of an employee for any loss is indirect, he should not be debarred from being considered for promotion during the period of recovery of the loss; and
(iii) A distinction should be made between stoppage of increments and reduction to a lower stage of the pay scale and in the former type of cases, should not be debarred from being considered for promotion. It is uncontested that where the NHAI Regulations are silent, the provisions of CCS (CCA) Rules, 1965 will apply as provided below:-
Rule 11
(i) Censure.
(ii) Withholding of his promotion.
(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders.
(iv) Withholding of increments of pay. From the above clarification issued by the DOPT from time to time, it does appear that the currency of punishment is no bar to promotion but there is a distinction between denial of promotion and deferment/keeping in abeyance.
The clarification has been issued vide [Cabinet Sectt.(Department of Personnel) OM No. 21/5/70-Ests.(A) dated the 15th May, 1971]., wherein its has been clearly spelt out as under that, every person eligible for promotion and in the field of choice has to be considered for promotion. The fact of the imposition of the minor penalty of censure on a Government servant does not by itself stand against the consideration of such person for promotion, as his fitness for the promotion has to be judged, in the case of promotion by seniority, on the basis of an overall assessment of his service record, and in the case of promotion by selection on merit, on the basis of his merit categorisation which is again based upon an overall assessment of his service record. So far as the eligibility of a Government servant who has been awarded the penalty of censure, to appear at a departmental/promotional examination is concerned, the same principles would apply, viz. that he cannot, merely because of the penalty of censure, be debarred from appearing at such an examination. In case, however, the rules of such an examination lay down that only those eligible persons can be allowed to appear at the examination who are considered to be fit for the purpose, the fitness of an eligible candidate, who has been awarded the penalty of censure, to appear at the examination has to be considered on the basis of an overall assessment of his service record and not merely on the basis of the penalty of censure. (Ref: [Cabinet Sectt. (Department of Personnel) OM No. 21/5/70-Ests.(A) dated the 15th May, 1971]. Further it has been clarified that Where the departmental proceedings have ended with the imposition of a minor penalty, viz. censure, recovery of pecuniary loss to the Government, withholding of increments of pay and withholding of promotion, the recommendation of the DPC in favour of the employee, kept in the sealed cover, will not be given effect to. But the case of the employee concerned for promotion/confirmation may be considered by the next DPC when it meets after the conclusion of the departmental proceedings. If the findings of the DPC are in favour of the employee, he may be promoted in his turn if the penalty is that of "censure" or "recovery of pecuniary loss caused to the Government by negligence or breach of orders", (Ref: Vide [Deptt. Of Personnel & A.R. O.M. No. 22011/2/78-Estt.(A) dated the 16th February, 1979],
As in the case of promotion of a Government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty.
(emphasis supplied).
11. The present case is that of imposition of punishment of "Censure" only.
12. In present facts and circumstances of the case, one cannot ignore that since the applicant was a long term contract employee, the question of withholding of increment or promotion and/or regularisation does not arise in his case more so keeping in view the fact that the Appellate Authority modified the punishment to that of 'Censure' only.
13. At best the case of the applicant would have fallen to certain extent in light of the Explanation carved out under Rule 11 CCS Conduct Rules, which reads as under:-
"The following shall not amounted to a penalty within the meaning of this rule, namely:
(iii) non-promotion of a Government servant, whether in a substantive or officiating capacity, after consideration of his case, to a Service, grade or post for promotion to which he is eligible."
14. In view of the above, backdrop this Tribunal is of the view that in Appellate Order dated 31.07.2019 imposing minor penalty does not call for the interference. However, the minor penalty of Censure for the reasons mentioned above cannot come in the way of the applicant for the purpose of his regularisation. Hence, the OA is partly allowed to the extent that applicant be regularised with effect from 01.06.2018 in terms of Office order No. 11041/297/2018-Admn. dated 04.06.2018 instead of 01.08.2019 in terms of Office order dated 22.10.2019 proceedings. The appropriate orders for revisiting the date of regularization with re-fixation of pay and grant of arrears of pay, if any, at par with his immediate junior as well as continuity of service, would be passed by the respondents within 45 days from the date of receipt of the certified copy of this order. Since there is no challenge to final senior list, the applicant is at liberty to make a representation in this regard seeking to place him at appropriate place in Final Seniority List after passing appropriate orders of regularisation as directed herein above in light of clarification (iii) as the penalty imposed is that of "Censure" only. In the event, the applicant is still aggrieved by any order passed on his representation in regard to final seniority list, he shall be liberty to challenge the same in appropriate forum.
15. The OA is partly allowed. There shall be no order as to costs.
