Mazhare Islam vs Union Of India And Ors

Praveen Mahajan, Member (A)

In the current O.A., the applicant has prayed for the following relief:-

"(a) Quash Respondents' non-reasoned order dtd. 11.05.2015 extending the period of Applicant's suspension for an indefinite period for it being in violation of judgment dtd. 16.02.15 of the Hon'ble Supreme Court of India in Ajay Kumar Choudhary vs. Union of India & Anr. [Civil Appeal No. 1912 of 2015 (Arising out of SLP(C) No. 31761 of 2013].

(b) Direct that the Applicant be permitted to work at his office or at any other appropriate office during the pendency of the enquiry against him in accordance with the aforesaid judgment dtd. 16.02.15 of the Hon'bleSupreme Court of India.

(c) Pass such other order(s) as it may deem fit and proper under the facts & circumstances of this case."

Briefly stated, the facts of the current O.A. are that the applicant is working in Central Council of Indian Medicine (CCIM), Department of Ayush, Ministry of Health & Family Welfare, as UDC, since 2010. A Departmental Promotion Committee (DPC) held on 28.06.2011 cleared promotions of 04 officials to the rank of Office Superintendent. The applicant states that though he was eligible for consideration for promotion to the rank of O.S., his name was not included in the list of officers placed before the said DPC. Aggrieved, the applicant moved 09 representations to the competent authorities against the recommendations of the DPC between 30.08.2011 to 05.10.2012. Based on information provided to him under the RTI, he has been informed that the CCIM had registered a complaint against one Ms. Kiran, OS (Respondent No.3 one of the beneficiaries in the aforementioned DPC) and Dr. Prem Raj Sharma, Secretary-cum-Registrar for tampering and falsifying official records. On 24.10.2013 orders were issued directing the applicant to discharge the duties of OS in addition to his duties as UDC till further orders.

It is stated in the O.A. that the applicant was suspended from service on 25.08.2014 pending disciplinary proceedings against him.

The applicant's subsistence allowance was fixed at 50% of his pay vide order dated 26.09.2014. The applicant states that the charge sheet dated 10.12.2014 was issued to the applicant under Rule 3(2)(i) & (ii) of the CCS (Conduct) Rules, 1964 containing six articles of charge which contained no specific acts of misconduct. The respondents merely placed his entire conduct and work performance under charge after 25 years of excellent service. The applicant states that he submitted his statement of defence on 15.02.2015 denying all articles of charge levelled against him. The Presenting Officer for inquiry against him was Dr. P.R. Sharma against whom the CCIM had earlier initiated criminal/departmental proceedings for tampering with Recruitment Rules etc. along with Ms. Kiran, who had been promoted to the rank of OS by the DPC dated 28.06.2011. Given the background, he represented against the appointment of Dr. P.R. Sharma, as Presenting Officer in his case, since allegedly Dr. P.R. Sharma held the applicant responsible for the departmental proceedings against him. The representation of the applicant against the appointment of Dr. P.R. Sharma as Presenting Officer was rejected by the Asstt. Registrar, CCIM vide letter dated 30.03.2015. The applicant then wrote to Dr. P.R. Sharma and to the IO that he had broken his leg on 23.03.2015 and may not be able to walk for at least a month.

The CCIM issued yet another Memorandum dated 09.04.2015 enclosing a fresh charge sheet against the applicant in addition to the earlier one dated 10.12.2014 containing five articles of charge. The gist of articles of charge against the applicant is as under:-

"(Gist of Article of charge I): Charged Officer, Acting O.S. (UDC) while functioning as LDC/UDC was not in habit to give the correct information about his residential address etc. to the office of the CCIM... During the year July 2002....a letter was sent to the address at....as mentioned in the Service Book, which was returned with remark that person in the name of Sh. Mazhare Islam is not residing at this address...

(Gist of Article of charge II): Charged Officer, Acting O.S. (UDC) while functioning as UDC/LDC on 19th April, 2010 was asked to handover the charge of Unani Section....The inordinate delay in handling over the charge clearly shows the dereliction of duty on the part of Sh. Mazhare Islam.

(Gist of Article of charge III): Charged Officer, Acting O.S.(UDC) while working as LDC/UDC was in the habit of coming late to the office of CCIM.

(Gist of Article of charge IV): Sh. Mazhare Islam was also negligent about his work and still continued to keep receipt of the Daks/letters pending.

(Gist of Article of charge V): Charged Officer, Acting O.S. (UDC) while functioning as LDC/UDC was not in habit to give the correct information about his residential address etc. to the office of CCIM."

It is averred that both the charge sheets against him contained frivolous and non serious articles of charge. Further, the appointment of Dr. P.R. Sharma as Presenting Officer in the inquiry against him shows that the entire inquiry process is vitiated and focused on settling scores, which Dr. P.R. Sharma had with the applicant. However, vide order dated 07.05.2015 Dr. P.R. Sharma was removed as Presenting Officer.

The applicant states that as per different orders, his subsistence allowance and suspension kept getting reviewed. On 11.05.2015, respondents issued the impugned order, extending period of suspension of the applicant w.e.f. 23.05.2015 till the completion of disciplinary proceedings.

In support of his claim, the applicant has relied upon the following judgments of the Hon'ble Supreme Court:-

i) Ajay Kumar Choudhary v. Union of India & Anr., Civil Appeal No.1912 of 2015 [arising out of SLP(C) No.31761 of 2013].

ii) O.P. Gupta v. Union of India, (1987) 4 SCC 328.

iii) K. Sudhakar Reddy v. State of A.P., (1999) 6 SCC 257.

iv) Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

Respondents No. 1 to 4 have filed their separate replies. It has been emphasized that the applicant did not perform his duties well and was found to be discourteous and negligent in disposal of the work assigned to him. Before issuing the charge memo to the applicant an effort was made to deliver the charge memo by hand but it was found that the address of the applicant was not correct, hence the charge memos (under Rule-14 of CCS(CCA) Rules, 1965) were issued through speed post. Though the applicant was directed to submit a written statement of defence within 15 days after receipt of the memorandum, no defence statement was received even after passing of 45 days from the date of issuing of charge memo. However, a request for extension of period for submission of defence was received in the office of CCIM from the applicant. The respondents aver that the inquiry had to be conducted ex-parte as the applicant did not co-operate with the IO in the matter. The applicant was also asked to appear before the Medical Board for examination and substantiate his claim in respect of his reported illness but he did not do so.

Respondent No.4 has also filed a reply on similar lines and submitted that the O.A. be dismissed.

Respondent No. 3 in his reply has denied the averments made by the applicant in the O.A. It is stated that pursuant to the establishment of the CCIM after enactment of the CCIM Act, 1970, the terms and conditions of the services of the employees of the CCIM were made applicable to the employees in terms of Section 12(d) of the aforesaid Act. It is contended that the applicant has come before the Tribunal by filing the current O.A. before exhausting the alternate remedies available to him submitting a representation/appeal for redressal of his grievance against the impugned order dated 11.05.2015 to the Appellate Authority. It is further stated that the applicant has enclosed copies of various documents pertaining to the cases initiated against respondents No. 3 and 4, which are confidential in nature. Thus, it would appear that he probably removed copies of such documents from the office while performing the duties of Acting Office Superintendent without the knowledge of the office staff, which act by itself, is illegal.

The applicant has filed rejoinder to the replies of the respondents wherein he has more or less reiterated the averments made in the O.A.

We have gone through the facts of the case and considered the rival contentions of both sides. At the outset, we observe that the applicant has spent considerable time discussing the conduct of respondents No. 3 & 4 and articles of charge framed by CCIM against respondents No. 3 & 4, which according to us does not have a bearing on the merits of the case qua the applicant. It appears that the alleged "non-cooperation" of the applicant in the inquiry is on account of the suspected bias which he feels the respondents have towards him. However, majesty of law must prevail and as of now the O.A. is certainly premature. We are in agreement with the respondents that the applicant has not exhausted all the departmental remedies available to him. If he had any grievance against the impugned order dated 11.05.2015 extending his suspension for an indefinite period, the remedy of filing an appeal against the said order was open to him, which he has not availed. In view of the aforesaid discussions, the applicant is advised to exhaust the remedies available to him under law for redressal of his grievance. He may file an appeal/representation to the competent authority even though, these might now be time barred, as there would be a lapse of almost 03 years to file the same. The respondents are directed not to reject it on the basis of time bar and pass a reasoned and speaking order, based on merit. The respondents may do so within a period of three months from the date of receipt of such representation. If any grievance still survives, the applicant would be free to approach the necessary forum for relief, if considered necessary. The O.A. is disposed of with these directions . No costs.