Judgment:
1. The applicant who was working as Assistant Postmaster General, Circle Office, Hyderabad was issued with the charge memo dated 31.1.2000 proposing to hold enquiry. The following is the Article of charge:-- "That the said Shri G. Buddappa, while working as APMG (SB), Circle Office, Hyderabad during the period from 22.6.95 to 17.8.98, functioned as question paper setter and Examiner in respect of Paper 'C' (dictation from Telugu and English pieces) of the Postman Examination from amongst EI and Group 'D' officials in respect of Hyderabad Region, held on 25.5.97. During, the said period, Shri Buddappa evaluated the answer scripts of the aforesaid Postman Examination in afaulty and indiscreet manner and without following uniform standard in awarding marks to all candidates of Hanamkonda, Sangareddy and Warangal Divisions, leading to the cancellation of the Examination in respect of paper 'C' of Hanamkonda Dn. & selection of undeserving candidates as Postman in respect of Sangareddy Dn.
It is, therefore, alleged that the said Shri G. Buddappa, by his aforesaid acts, failed to maintain absolute integrity, showed lack of devotion to duty and acted in a manner unbecoming of a Government servant, thereby violating the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964." 2. The statement of imputations of charge are also annexed as Annexure-II to the memorandum of charge. For the purpose of better appreciating the issue involved it is necessary to reproduce the statement of imputations: Statement of imputations of misconduct or misbehaviour framed against Shri G. Buddappa, the then APMG (SB), Circle Office, Hyderabad and now Sr. Supdt. of Post Offices, Chittoor (A.P. Circle).
That the said Shri G. Buddappa worked as APMG (SB), Circle Office, Hyderabad during the period from 22.6.95 to 17.8.98 and during this period examination for selection as Postman from among ED Agents and Group 'D' officials in respect of Hyderabad Region was held on 25.5.97. Shri G. Buddappa, the then APMG (SB) was nominated for setting the question paper 'C' (Dictation from Telugu and English pieces) and for evaluating the answer scripts of Hyderabad Region of the aforesaid examination.
2. In respect of aforesaid examination, no separate norms were set up for evaluating the answer scripts and, therefore, the answer script had to be compared with the original script and marks awarded accordingly. No marks were also to be set. apart for handwriting as per para 7(b) of Part IV (instructions for examiner under Appendix-37 of Postal Manual Vol. IV. The evaluation should, therefore, had to be uniform for all the candidates.
3. On receipt of a complaint dated 5.7.97 from Shri K. Hariprasad, ED Packer/ MC, Pedapanjala S.O. (Hanamkonda Division) pertaining to alleged irregularities in the aforesaid examination of Hanamkonda Division, answer scripts of following candidates (who were likely to be selected and the complainant) were scrutinised and discrepancies as noted down in subsequent table were noticed vis-a-vis the number of mistakes detected and marks given to these candidates by DPS (HCR), on revaluation of these answer scripts:-- 4. From the above table and the relevant answer sheets it is noticed that in respect of English Dictation, Shri G. Buddappa, as the Examiner, deducted 1/2 mark for each mistake committed by the complainant and only 1/4 mark for each mistake in the case of other 4 prospective candidates. In respect of Telugu Dictation, the Examiner deducted 1/2 mark for each mistake in respect of all the candidates. Further, there is remarkable difference in the number of mistakes detected by the Examiner and by the DPS (HCR). In the case of Roll Nos. HMK/PM/17/97 and HMK/PM/21/97 the difference is too large which establishes the ill motive of the Examiner.
5. There were about 158 words in English and 140 words in Telugu dictation. The Examiner deducted 1/2 mark for each mistake for Telugu Dictation and 1/4th mark in English Dictation. In respect of Roll No. HMK/PM/45/97 (complainant) he deducted 1/2 mark for each mistake committed in English Dictation. The Examiner did not set the marks to be deducted for each mistake keeping into consideration the number of actual words the dictation pieces contained. Thus, no further evaluation was considered warranted for mistakes committed beyond a prescribed number in each piece.
6. As there were serious irregularities in Paper-C as mentioned above, the examination already held for Paper-C in respect of Hanamkonda Division was cancelled and a fresh examination held. 7. A further scrutiny in respect of the answer scripts evaluated by Shri G. Buddappa relating to Paper-C of the Postmen Examination held on 25.5.97 in respect of Sangareddy and Warangal Divisions, was also undertaken with the following results:-- 8. In respect of Sangareddy Division, candidates with Roll Nos.
12,57,99, 101 and 62 were not actually entitled for selection in the light of the faulty evaluation. But they were selected.
9. Keeping in view the remarkable difference in the number of mistakes detected by the Examiner and by the DPS (HCR) and failure to follow uniform standard in awarding marks to all the candidates by the Examiner, the statements of Shri G. Buddappa on the discrepancies detected in his evaluation as shown above, were recorded by the DPS on 21.3.98 and 8.5.98, but Shri Buddappa failed to give a satisfactory explanation. His actions, as discussed above clearly indicate his biased attitude in checking the answer scripts in a haphazard and indiscreet manner with ulterior motive.
10. It is, therefore, alleged that the said Shri G. Buddappa, by his aforesaid acts, failed to maintain absolute integrity, showed lack of devotion to duty and acted in a manner unbecoming of a Government Servant, thereby violating the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
3. Aggrieved by the above charge memo the applicant filed the present OA.5. Learned Counsel for the applicant attacks the charge memo on two grounds: (1) There is a delay of 21/2 years in issuing the charge memo; which was not properly explained.
(2) The charge does not constitute misconduct under the provisions of CCS (Conduct) Rules, 1964 and hence no enquiry could be held.The applicant submitted his statements on 21.3.98/8.5.98 denying the allegation made in the preliminary enquiry, the present charge memo was issued after delay of 2 years particularly when he was about to retire from service.
6. The allegation of delay was however explained in the reply stating that as the case was prosecuted at the circle level it took some time to finalise and issue of charge memo. It must be noted that after the finalisation of the charge sheet the same had to be sent to the Directorate which in turn was forwarded to the President, who infact issued the charge sheet. We find that the delay from 8.5.98 to January 2000, they cannot be said to be not properly explained in the circumstances of the case. It is necessary that the charge being made against an examiner and being of sensitive nature, considerable time should take for decision making process. In the circumstances the delay caused in this case, cannot be said to be wholly unexplained and vitiated the charge sheet.
7. With regard to the second contention, it has to be seen whether the allegation constituted misconduct in the eye of law. In order to appreciate this contention, we have to take the allegation made in the charge/imputations as they are and find whether such allegations constitute misconduct. What was alleged against the applicant was that he, as an Evaluator of the answer scripts in the Postmen Examination was found guilty of faulty and indiscreet evaluation and that no uniform standard has been followed in awarding marks for the mistakes, in the divisions of Hanumakonda, Sangareddy and Warangal, which ultimately led to the cancellation of the examination. From a close reading of the article of charge it would only point out as to the negligent evaluation of the answer scripts. In the statement of imputations the mistakes that were alleged to have committed by the applicant and the marks given by him and the revised marks given by any examiner who had revaluated the papers are also shown, in all the division. From the above table certain discrepancies were sought to be pointed out. No uniform pattern of deduction of the marks with regard to the mistakes committed by the candidate was also highlighted. From the above the learned Counsel for the respondents seeks to argue that the applicant was guilty of evaluation of the papers in an indiscreet manner with ulterior motive. We have closely perused the tables given in the statement of imputation. It is no doubt considerable difference in the marks given by the applicant and the marks given in the revaluation (investigation) by the Director of Postal Services.
8. The learned Counsel for the applicant submits that the allegations made against the applicant in the charge memo read with the statement of imputations may only show negligence in awarding marks, but that, by itself would not point out that the applicant was guilty of any misconduct, as no ulterior motive as against/or in favour of any particular candidate was attributed to the applicant.
9. We see considerable force in the contention of the applicant's Counsel.
10. The misconduct has been defined in Stroud's judicial dictionary (1986 Fifth Edition) as: "misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistakes, do not constitute such misconduct."(SC) Union of India v. J. Ahmed in which the Hon'ble Supreme Court observed, inter-alia as under: "It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct.
Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings." 12. The Calcutta High Court, in Veerendra Prasad v. Union of India, Lab. I.C. 1986 pg. 1965 the charge against the applicants therein, the Regional Provident Fund Commissioner was that he ordered reduction of damages ordered earlier against the assessee. The Hon'ble Supreme Court, while quashing the charge sheet, observed as follows: "The word 'misconduct" is of very wide amplitude and meaning.
"Misconduct" in common parlance means bad conduct and some sort of an ill motive or bad motive is an essential ingredient in imputing misconduct on to an individual. In my view, mere error of judgment or a mere negligent way of dealing in the matter cannot be itself be termed to be misconduct. It must be, coupled with such other act or acts by which motive would be apparent either expressly or even be inferred by implication. Habitual acts of negligence however can be termed to be a misconduct and gross negligence also falls within the same category. In order to bring home the charge of misconduct in justification of issuance of a charge sheet within the ratio of the Supreme Court decision in Ahmed's case (1979 Lab IC 792 (supra)." 13. In the light of the above 2 decisions it is more than clear that mere negligence or deficiency would not amount to misconduct.
14. In the instant case what we gather from the allegations of imputations is that the applicant, was not consistent in his evaluation. At the most, it could be inferred that he was negligent in the performance of his function as Evaluator. It was no where stated that the applicant has favoured any candidate. Learned Counsel for the respondent however seeks to rely to contend that he acted with ill motive and an allegation was also made to that effect. We see no force in the contention. Mere statement that he has evaluated the papers with ill motive would not suffice. There must be sufficient basis or material or the allegation should disclose bad conduct or some sort of ill-motive on the part of the applicant. By these categorising a person a bad one, he will not become a bad person.
15. In the circumstances we are constrained to hold that the allegations in the charge memo do not constitute misconduct to proceed with the disciplinary proceedings.
16. Learned Counsel contends that the proceedings at the stage of charge memo cannot be stifled or interdicted. The learned Counsel relies upon Air India Limited v. M. Yogeswar Raj, 2000(5) SCC 467. In that case the disciplinary authority disagreeing with the findings of the enquiry officer who exonerated the applicant on the charge of producing a bogus caste certificate had asked the respondent therein to submit his explanation. Thereupon when the matter was carried to Hon'ble High Court an interim order was passed observing 'prima facie' the respondents therein belong to SC/ST and accordingly stayed the proceedings. The Hon'ble Supreme Court thereupon held that the disciplinary authority was yet to finalise the proceedings and pass a final order and pending the issues before it, it was impermissible for the Hon'ble High Court to come to any decision. This case, in our view, is wholly misplaced. This Court has to necessarily step in, as unless the allegations constitute misconduct the enquiry cannot go on.
17. The contention of the Counsel for the respondents that as the enquiry officer has already been appointed and the applicant had already participated in the enquiry and submitted his explanation, it is not open to the applicant to rush to this Court is also untenable.
When the question of the validity of the charge memo itself was under consideration, instead of allowing the enquiry to be proceeded with, in our view it is open to the applicant to come to this Court for a decision.
18. As a result, the OA is allowed. The charge memo and the consequential proceedings are quashed.