Central Administrative Tribunal - Delhi
Anju Ranjan vs Externel Affairs on 29 May, 2024
(OA No.63/2024)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.63/2024
Reserved on:29.04.2024
Pronounced on:29.05.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Anju Ranjan W/o Shri Ranjan Kumar
Aged about 50 years,
Working as Deputy Director General (Culture) at
Indian Council for Cultural Relations,
Ministry of External Affairs, I.P.Estate,
Azad Bhawan, New Delhi-110002. ...Applicant
(By Advocate:Ms.Sriparna Chatterjee)
Versus
1. Union of India
Through Secretary
Ministry of External Affairs,
South Block, New Delhi.-011.
2. Central Vigilance Commission
Through its Secretary
Satarkata Bhawan, GPO Complex,
INA New Delhi-110023. ...Respondents.
(By Advocate: Shri Hanu Bhaskar, Shri Umang Dixit
Shri Kaushal Kumar, SO Vig.MEA)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have sought the following relief(s) :-
"(a) Quashing and setting aside the Charge memorandum No.Q/Vig/842/08/2020 dated 14.10.2022 read with Corrigendum dated (OA No.63/2024) (2) 04.05.2023, the Order No. Q/Vig/842/08/2020 dated 21.06.2023 and Order No.Q/Vig/842/05/2019 dated 21.06.2023; and
(b) Call for the records and hold that the act of the Respondents is arbitrary and against the law; And
(c) Pass any other order or orders that may be deemed fit in the circumstances of the case and in the interest of justice."
2. The facts of the case, in brief, as indicated in the OA are that the applicant is an officer of the Indian Foreign Service (2002 Batch) against whom disciplinary proceedings have been initiated in gross violation of the principles of natural justice, rules of equity and provisions of the CCS (CCA) Rules, 1965 and the law well settled by the Hon'ble Supreme Court.
3. It is submitted that on 10th December 2016, the applicant was posted as Consul General of India in Edinburgh (U.K.) and relinquished charge thereof on 14th October 2019 upon her transfer to Johannesburg. From 1st February 2023, the applicant is posted as Deputy Director General, in the Indian Council for Cultural Relations (ICCR), New Delhi.
While posted in Edinburgh, as per the plans and schemes formulated by the Government of India, the Edinburgh Consulate organized /celebrated events of national (OA No.63/2024) (3) importance in Edinburgh viz. World Hindi Day (on 10.01.2019), Republic Day (26.01.2019), Market Expansion Activities (on 11.04.2019), ICCR Foundation Day (on 30.04.2019) and International Day of Yoga (in June 2019). After the applicant relinquished charge of Edinburgh Consulate on 14th October 2019, audit of the accounts of CGI, Edinburgh for the period October 2018 to September 2019 was conducted in November, 2019, during which Audit raised queries inter alia on deviations from the guidelines regarding making of payments exceeding Rs.5000/- to venders by payment advice only. The audit queries were settled by Audit after considering the Consulate's replies. However, some disgruntled person in CGI Edinburgh sent anonymous complaints to the Ministry's vigilance unit dated 22.07.2020 and 24.07.2020 highlighting the audit queries beyond proportion. Taking action on those anonymous complaints, the JS (CNV&I) & CVO, in the Ministry forwarded the complaints to High Commission of India (HCI), London with direction to conduct a preliminary inquiry into the matter. In pursuance, Deputy High Commissioner (DHC), London constituted a 3-members preliminary enquiry committee headed by Shri Manish Singh, Minister (Eco.). The committee visited CGI, Edinburgh from 21.9.2020 to (OA No.63/2024) (4) 23.9.2020 to inquire into the complaints and submitted its report to JS (CNV). On 22.09.2020, some disgruntled person sent a fictitious email from Flavia Barreto <[email protected]> to US VIG [email protected] with CC to jsenv@ mea. gov.in and [email protected] on the subject - Pocketing of school fee by Anju Ranjan. It was contended in this email that the applicant had received partnership grant funding of £ 2200 per child per year in her personal bank account, provided by Edinburgh City Council in respect of her two children through their school, which the applicant ought to have deposited into Consulate's account because the fee in respect of her children had in fact been paid by the Consulate. The complainant alleged that by not depositing the amount of partnership grant funding into Consulate's account, she had pocketed the school fee and got illegal extra money by cheating the Indian Government. Ms. Flavia Barreto, whose name was indicated in the said email, happened to be a local employee (Receptionist) in Consulate, Edinburgh. She deposed before the Minister (Eco.) heading the inquiry committee (which was in place at CGI, Edinburgh on 22.09.2020 in connection with inquiry into above said anonymous complaints) that she had not (OA No.63/2024) (5) sent such email and stated that the said email id <[email protected]> was not hers. She mentioned that somebody had tried to forge her identity to write this email. The impugned email thus turned out to be pseudonymous one. Flavia Barreto, vide her email dated 24.09.2020 also apprised the DHC, London of her anxiety in the matter that some anonymous person(s) has been misusing her name to write formal complaints to higher authorities against the previous CG, Ms. Anju Ranjan, which contained sensitive, inside information from the Consulate. As per Government of India's instructions, no cognizance is to be given to anonymous complaints, as such complaints are symptoms of intellectual dishonesty which instead of doing anything good to the system create administrative botherations, it is contended. However, the JS (CNV&I), MEA, vide e-Gram dated 22.10.2020 required the Indian Mission, London to look into the complaint regarding pocketing of school fee by Ms. Anju Ranjan. In this connection, DHC, London sent his report, vide letter no. LON/ DHC/85/2020 dated 16.12.2020. On 26.03.2021, the JS (CNV&I) issued a memo to the applicant, seeking her explanation on certain issues pertaining to the period of her tenure in Edinburgh. Applicant states thatthough at several (OA No.63/2024) (6) places the memo contained reference of inquiry committee, but no report of said inquiry was ever provided to applicant, despite her request for the same. In this eventuality, the applicant was constrained to furnish her explanation on 10.05.2021 based on her memory only.
4. It is further submitted that thereafter, a charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 vide memorandum dated 14.10.2022 (AEC) A-1) was issued to the applicant 'by order and in the name of the President' over the signature of JS (CNV&I) & CVO, which contained under-mentioned six Articles of charge:
Art-1 Ms. Anju Ranjan during her tenure as Consul General, Consulate General of India, Edinburgh indulged herself in the act of corruption by misappropriating Government funds to the tune of British pound (GBP) 6316.20/- which was received by her in her personal bank account (A/C No. 17022031 in the Royal Bank of Scotland, Edinburgh), from "The City of Edinburgh Council'. The said amount of GBP 6316.20/- was received by Ms. Anju Ranjan as partnership grant on account of her children namely Yuva Aditya Ranjan and Yashanjali Arya Ranjan studying in the 'Early Days Nursery' in Edinburgh, for the period from 2017 to 2019.
By her aforementioned act, the said Ms. Anju Ranjan has exhibited conduct unbecoming of a Government servant; has failed to maintain absolute integrity; has failed to maintain high ethical standards and honesty; and has failed to refrain herself from doing anything which is or may be contrary to any law, rules, regulations and established practices thereby violating Rule 3(1)(i), (iii), (vi), (xviii) of CCS (Conduct) Rules, 1964.
(OA No.63/2024) (7) Art.-II In connection with the expenditure towards logistical arrangements for celebration of World Hindi Day - 2019 in Edinburgh and Glasgow, Ms. Anju Ranjan as Consul General, Consulate General of India, Edinburgh viz., Head of Post, withdrew an amount of GBP 1089.56/- [equivalent to INR 1,00,000 @ Rs. 91.78 GBP 1] in advance from the Government account, which was deposited by Ms. Ranjan into her personal bank account without permission of the competent authority. The said amount was withdrawn by Ms. Anju Ranjan without production of any supportive bills or estimates. From the said advance withdrawn by Ms. Anju Ranjan, she also made cash payment in excess of Rs. 5000/- to vendors. Such conduct on part of the said Ms. Anju Ranjan was in violation of Rule 9, Rule 28, Rule 108 of the Receipt & Payment Rules, 1983 and the guidelines issued by the Controller General of Accounts vide Office Memorandum No. F. No. 3(2)(1)/ 2016/R&P Rules /Amendment/649 dated 05.12.2016.
By her aforementioned acts, the said Ms. Anju Ranjan has exhibited conduct unbecoming of a Government servant and has acted contrary to the established rules and practices thereby violating Rule 3(1)(iii) & vii) of CCS (Conduct) Rules, 1964.
Art.-III In connection with expenditure towards logistical arrangements for celebration of 70th Republic Day of India in Edinburgh, Ms. Anju Ranjan as Consul General, Consulate General of India, Edinburgh viz., Head of Post, withdrew an amount of GBP 5582.71/- [equivalent to INR 5,12,381/- @ Rs. 91.78 GBP 1] in advance from the Government account without submitting any supportive bills or estimates in this regard. The said advance withdrawn by Ms. Anju Ranjan was deposited by her in her personal bank account without permission of the competent authority. From the said advance money, Ms. Anju Ranjan also made cash payment in excess of Rs. 5000/- to vendors. Such conduct on part of the said Ms. Anju Ranjan was in violation of Rule 9, Rule 28, Rule 108 of the Receipt & Payment Rules, 1983 and the guidelines issued by the Controller General of Accounts vide Office (OA No.63/2024) (8) Memorandum No. F. No. 3(2)(1)/2016/R&P Rules/ Amendment/649 dated 05.12.2016.
By her aforementioned acts, the said Ms. Anju Ranjan has exhibited conduct unbecoming of a Government servant and has acted contrary to the established rules and practices thereby violating Rule 3(1)(iii) & (xviii) of CCS (Conduct) Rules, 1964.
Art-IV In connection with expenditure towards logistical arrangements for the event related to Market Expansion Activities in April 2019 in Edinburgh, Ms. Anju Ranjan as Consul General, Consulate General of India, Edinburgh viz., Head of Post, withdrew an amount of GBP 1535.50/- [equivalent to INR 1,44,030 @ Rs. 91.78 GBP 1] in advance from the Government account which was deposited by her in her personal bank account without permission of the competent authority. The said amount was withdrawn by Ms. Anju Ranjan without production of any supportive bills or estimates. Such conduct on part of the said Ms. Anju Ranjan was in violation of Rule 9, Rule 28, Rule 108 of the Receipt & Payment Rules, 1983. By her aforementioned acts, the said Ms. Anju Ranjan has exhibited conduct unbecoming of a Government servant and has acted contrary to the established rules and practices thereby violating Rule 3(1)(iii) & (xviii) of CCS (Conduct) Rules, 1964.
Art.-V In connection with expenditure towards logistical arrangements for celebration of ICCR Foundation Day on 30.04.2019 in Edinburgh, Ms. Anju Ranjan as Consul General, Consulate General of India, Edinburgh viz., Head of Post, withdrew an amount of GBP 1317.21/ [equivalent to INR 1,22,000] in advance from the Government account, which was deposited by her in her personal bank account without permission of the competent authority. The said amount was withdrawn by Ms. Anju Ranjan without production of any supportive bills or estimates. Such conduct on part of the said Ms. Anju Ranjan was in violation of Rule 9, Rule 28, Rule 108 of the Receipt & Payment Rules, 1983.
(OA No.63/2024) (9) By her aforementioned acts, the said Ms. Anju Ranjan has exhibited conduct unbecoming of a Government servant and has acted contrary to the established rules and practices thereby violating Rule 3(1)(iii) & (xviii) of CCS (Conduct) Rules, 1964.
Art-VI In connection with expenditure towards logistical Arrangements for celebration of 5th International Day of Yoga in 2019 in Edinburgh, Ms. Anju Ranjan as Consul General, Consulate General of India, Edinburgh viz., Head of Post, withdrew an amount of GBP 6509,69/- [equivalent to INR 5,87,500/- @ Rs. 90.25 GBP 1] in advance from the Government account, which was deposited by her in her personal bank account without permission of the competent authority. The said amount was withdrawn by Ms. Anju Ranjan without production of any supportive bills or estimates. Such conduct on part of the said Ms. Anju Ranjan was in violation of Rule 9, Rule 28, Rule 108 of the Receipt & Payment Rules, 1983. From the said advance money, Ms. Anju Ranjan also made cash payment in excess of Rs. 5000/- to vendors. Such conduct on part of the said Ms. Anju Ranjan was in violation of Rule 9, Rule 28, Rule 108 of the Receipt & Payment Rules, 1983 and the guidelines issued by the Controller General of Accounts vide Office Memorandum No. F. No. 3(2) (1)/2016/R&P Rules/ Amendment/649 dated 05.12.2016.
By her aforementioned acts, the said Ms. Anju Ranjan has exhibited conduct unbecoming of a Government servant and has acted contrary to the established rules and practices thereby violating Rule 3(1)(iii) & (xviii) of CCS (Conduct) Rules, 1964.
5. Applicant avers that the genesis of Article-I of the charge lies in the pseudonymous email dated 22.09.2020 sent from one Flavia Barreto <barretofm6@ gmail.com> to the vigilance unit of the Ministry alleging pocketing of school fee by Anju Ranjan. Articles-II to VI contain allegation of making payment to venders in cash instead of by cheques (OA No.63/2024) (10) and depositing the Govt. money drawn in her personal account connected to celebration of certain events of national importance in Edinburgh. These Articles are based on anonymous complaints in which audit queries with regard to payments in cash were highlighted beyond proportion, despite the queries having been dropped by Audit. It is claimed that these complaints were made intentionally by some disgruntled person to malign the applicant's unblemished service career. It is asserted that there are existing instructions regarding dealing with anonymous/pseudonymous complaints, contained in DOPT OM No. 104/76/2011/ AVD-I dated 18.10.2013 and OM No. 104/76/2011/AVD-I dated 18.06.2014 which categorically state that no action would be taken on anonymous / pseudonymous complaints, irrespective of the nature of allegations and such complaints should be simply filed.
6. Applicant also avers that in terms of the CVC's Instructions dated 25.11.2014 (Circular No. 07/11/2014), reiterated by CVC dated 24.09.2020 that no action would be taken on anonymous /pseudonymous complaints by Ministries/ Departments and such complaints should be filed, asking all CVOs / Administrative Authorities to ensure strict compliance to the above instructions and that non-
(OA No.63/2024) (11) compliance/violation of these guidelines by the concerned authorities would be viewed seriously, in disregard to above instructions, the JS (CNV&I) & CVO took cognizance of anonymous and pseudonymous complaints; got them investigated and on the basis of such investigation and the materials and evidence gathered during that investigation, initiated the instant disciplinary proceeding. The CVC tendered advice for initiation of above proceedings vide OM dated 06.09.2022, which reveals that the Commission in agreement with Ministry's recommendations, had advised for initiation of major penalty proceedings against applicant. However, no reason is adduced on the face of said advice. Such advice is, therefore, without basis and the material on consideration of which the said advice was issued, was not disclosed by the Ministry.
7. The applicant has strong apprehension that such advice was obtained by the Ministry by not apprising the CVC of the fact of anonymous and pseudonymous complaints, otherwise the CVC would not have given such advice which is contrary to their own instructions to the effect that no action would be taken on anonymous and pseudonymous complaints.
8. The applicant submits that Article-I of the charge is based on the misconception that partnership grant funding (OA No.63/2024) (12) support, provided by City Council of Edinburgh to the applicant in respect of her two children, through the nursery school, was meant as reimbursement of the school fee that had been earlier paid to the school under CEA by the Consulate, and that the amount of said funding support should have been deposited by applicant on her own into the Consulate's account. The applicant states that this conception is not correct nor there is any positive evidence on record to show that the impugned partnership grant was towards reimbursement of the school fee and none else. Taking forward her statement the applicant argues that in fact partnership grant funding provided by local Government (Edinburgh City Council) was to assist the parents in spending the money on additional facilities recommended by the Scottish Government and that is why their Inspectors used to conduct surprise inspections to check the children at home. Therefore, the charge in Article-I is based on 'no evidence' as there is prima facie no positive evidence in Annexure-III of the charge-memo to unequivocally establish that the partnership grant funding was provided as refund of a part of the school fee.
9. It is also averred that the charges in Article-II to VI are based on procedural deviations and not on act of any (OA No.63/2024) (13) misconduct, as the payments made in cash were well within the premise of Rule 30 (1) of the RP Rules. Moreover, the charge memo did not contain any imputations as if the events were not organized or the expenses incurred on them were not genuine. However, the procedural deviation was highlighted beyond proportion in the anonymous complaints and taking cognizance thereof, the charges were framed in these Articles. The applicant further submits that in her written statement of defence dated 16.11.2022, the applicant replied to the charges with specific emphasis on un-sustainability of the charge sheet based on investigation of the pseudonymous and anonymous complaints but no reasoned order was passed with regard to applicant's contention and instead an inquiring authority was appointed vide Order No. Q/Vig./842/2020 dated 21.06.2023 to inquire into all the six articles of charges, which could not have evolved, had the anonymous / pseudonymous not been acted upon, in the light of above referred instructions of DOPT, CVC and Ministry's vigilance itself. The applicant contends, that therefore, charge memorandum No. Q/Vig./842/2020 dated 14.10.2022 and order No. Q/Vig./842/2020 dated 21.06.2023 regarding appointment of the Inquiring Authority, leading to the enquiry are liable (OA No.63/2024) (14) to be quashed collectively. Moreover, the inquiry is in preliminary stage wherein only documentation of prosecution and defence documents have been completed.
10. The applicant has also contended that she had submitted a requisition dated 10.07.2023 to the IA for allowing inspection and production of 17 documents enumerated in a list. The IA, vide letter Q/Vig/842/08/2020 (INQ) dated 10.07.2023 sent that requisition to the Disciplinary Authority/JS (CNV) & CVO, for urgent necessary action to ensure timely completion of formalities related to the documentation. Thereafter, a few documents were provided by Vigilance Unit through the Presenting Officer. However, subsequently the IA vide letter No.Q/Vig./842/08/2020 (INQ) dated 22.11.2023 communicated the applicant that "the Disciplinary Authority could not accede to sharing of the documents mentioned at Sl. Nos. 1,2,3,4,6,7 and 12 in the list of documents requested by the officer, as these documents are either found not relevant to the case or pertain to preliminary investigation report/ advice of CVC which could not be summoned as per extant instructions.''
11. Applicant contends that such approach of the respondents is clearly driven out of malice, overlooking her (OA No.63/2024) (15) defense, which puts a question mark on the legality of charge sheet and the impugned orders.
12. The respondents in their counter reply have raised preliminary objection stating that this OA is liable to be dismissed as the same is pre-mature and this Tribunal would not like to go into the facts/merits of the matter at this stage. Further, there is no cause of action which has arisen in favour of the applicant for filing the OA.
13. In support of their contention, the respondents rely upon the following judgments:
i) UOI Vs. Ashok Kacker, 1995 Supp. (1) SCC 180 -
wherein it has been held that impugning the Charge Sheet without replying to the same is pre-mature and the applicant would have all opportunity to raise the defenses before the Inquiry Authority.
(ii) UOI Vs. Upender Singh, JT 1994 (1) SC 658 - holding that the Ld. Tribunal ought not to interfere at the interlocutory stage and the Ld. Tribunal will have no jurisdiction to go into the correctness or truth of the charges.
(iii) Dy. Inspector General of Police Vs. K.S. Swaminathan (1996) 11 SCC 498 which in the context of scope of judicial review of Charge Sheet, was of the view that examining the correctness of charges at the stage of framing of charges is beyond the scope of judicial review. It has only to be seen whether the (OA No.63/2024) (16) statement of facts and material supplied discloses the misconduct as alleged.
14. The respondents also submit that the OA is liable to be dismissed as the grounds as raised in the OA are on merits and merits can only be gone into during the course of the inquiry proceedings and this Tribunal cannot sit in appeal at the stage of framing of charges. The Respondent-Ministry received complaints through Emails dated 22.07.2020 and 24.07.2020 from a complainant (name not being disclosed on request of complainant) via an email addressed to External Affairs Minister with copy to JS (CNV) whereby many allegations had been leveled against the applicant, alleging several financial, procedural and administrative irregularities allegedly committed by her while serving as CG. CGI & CG, CGI, Edinburgh and later on at Johannesburg. A PMOPG portal complaint with registration number PMOPG/E/2020/0676903 PMOPG/E/2020/0682153 were also received Vide same email id dated 22.07.2020 & 24.07.2020 respectively, where complainant had requested to keep his / her identity confidential to keep him/her away from any personal harm. Upon receipt of the complaint, necessary action was initiated immediately by the Ministry, as per the standing guidelines and instructions of DOPT. As (OA No.63/2024) (17) per extant guidelines, the complaint was verified by the complainant through email dated 27.07.2020 within 15 days for owning the complaint and the confirmation also came through email dated 30.07.2020 within stipulated time limit. The allegations were prima facie found to be very serious, after which Ministry took cognizance of the allegations and preliminary investigation was conducted by the Ministry through High Commission of India, London and High Commission of India, Johannesburg with the approval of the then Foreign Secretary dated 14.08.2020.
15. During the time of preliminary investigation, another allegation was received from same email id on 22.09.2020. An email was received from another email id of a local staff of CGI Edinburgh on 24.09.2020 where she had stated that someone had misused her name in sending formal complaints against the CO. This was reiterated by the same employee during investigation physically. However, as the Ministry had already taken cognizance of the allegations, it was felt necessary to take the matter to its logical conclusion.
16. In this regard, our attention is drawn to Para 3.13 of Chapter-3 of the Vigilance Manual, 2021, which states as follows:
(OA No.63/2024) (18) "...once a complainant confirms the complaint and action has been initiated for inquiry/investigation by the commission/organization, it is not permissible to withdrawn/stop such inquiry/investigation even if the complainant withdraws the complaint. The allegations contained in the complaint have to be taken to its logical conclusion irrespective of complainant's request for withdrawal of the complaint."
Drawing strength from the above, it has been contended that even if the complainant has disclaimed the email dated 22.09.2020, in the light of above, it was decided to proceed to conclude the matter.
17. The respondents further submits that the investigation/inquiry Committee conducted a comprehensive enquiry including examination of all relevant files & records and interviews with Embassy personnel (both India-based and locally hired) at Consulate General of India (CGI), Edinburgh from 21 to 23 September 2020 and submitted its report to the Ministry vide its letter dated 27 Oct. 2020. After examining the preliminary investigation report, act of the officer was found to be that of a serious breach of the Conduct Rules of her service. Subsequently, explanation was also sought from the applicant vide communication dated 26.03.2021 with regard to the allegations levelled against her. The applicant filed her reply dated 10.05.2021 and the same was not found convincing. Since the instant case was (OA No.63/2024) (19) having a vigilance angle involving a Group 'A' officer, therefore, in accordance with Para 1.6.3. (Departmental Proceedings) of Chapter-I of Vigilance Manual, read with Section 8(2) of CVC Act, 2003, First Stage Advice (FSA) of the Central Vigilance Commission was required. Therefore, the approval of initiating proceeding under Rule 14 of CCS (CCA) Rules, 1965 and for First Stage Advice of CVC were sought from Disciplinary Authority and approved on 11.06.2022. Subsequently, the complete case records were forwarded to CVC vide OM dated 14.06.2022 seeking their First Stage Advice. Consequently, the CVC vide its O.M. dated 06.09.2022 had tendered its First Stage Advice. The Commission, in agreement with the recommendations of the Ministry, has advised initiation of major penalty proceedings against the applicant. Accordingly, a charge sheet dated 14.10.2022 was issued with the approval of Disciplinary Authority dated 30.09.2022. The CO/applicant was directed to submit a written statement of defence to the charge memo and also to state whether she desires to be heard in person.
18. The applicant submitted her statement of defense dated 16.11.2022 (received in Vigilance Unit on 05.12.2022). However, while examining the statement of (OA No.63/2024) (20) defense submitted by the CO, it was noted that the statement of imputation of misconduct in support of articles of charge framed against CO (Annexure-II of the Memorandum dated 14.10.2022) contained erroneous entries in paras (v) and (vi) under Article-V of the charges. In this regard, Corrigendum No. Q/Vig/842/08/2020 dated 04.05.2023 was issued to the CO along with an opportunity to submit revised written statement of defense, if any, against Article-V of the charge-sheet. However, CO vide her letter No. DDG(C)/ICCR/09/2023 dated 11.05.2023 submitted that she did not intend to revise her written statement of defense already submitted on 16.11.2022. The CO denied all the 6 (six) charges leveled against her vide charge-memorandum dated 14.10.2022. The statement of defense was examined and found not satisfactory. Accordingly, the Disciplinary Authority decided to hold an inquiry into the matter and the Inquiry Authority (IA) and Presenting Officer (PO) appointed vide Order dated 21.06.2023. The disciplinary proceedings against the applicant are underway and preliminary hearing and document inspection have been completed. Meanwhile, CO has alleged biasness against IA vide her representation (OA No.63/2024) (21) dated nil (received on 18.01.2024), which will be addressed as per rules.
19. We have heard both the parties and also gone through the pleadings on record, including the counter reply, rejoinder and written notes. Based on the claims made in the OA, rejoinder and the written notes, learned counsel for the applicant, at the outset, states that the impugned charge sheet is not in conformity with law. It is stated that out of 6 Article of charges; Article-I is regarding some alleged mis-appropriation refund of the school fee received from the Edinburgh Council. The Article II to VI pertain to certain expenditure made in cash by the applicant towards celebration of some events.
20. Placing reliance on the judgment in Than Singh vs. Union of India and Ors. 2003 (3) SLJ 440 the learned counsel has argued that there are certain grounds on which the correctness or otherwise of the charge sheet can be questioned as enumerated in the aforesaid order which are as follows:
"(i) If it is not in conformity with law.
(ii) If it discloses bias or pre-judgment of the guilt of the charged employee.
(iii) There is non-application of mind in issuing the charge-sheet.
(iv) If it does not disclose any misconduct.
(v) If it is vague.
(OA No.63/2024) (22)
(vi) If it is based on stale allegations.
(vii) If it is issued mala fide."
21. In light of above, it has been contended by the learned counsel that the charge sheet is a clear example of non- application of mind and is not in conformity with law and it violates the various circulars issued by the CVC, referred to in the pleading, which clearly state that no action should be taken on anonymous/pseudonymous complaints by the Ministries/Departments/organisations in line with its earlier instructions dated 29.06.1999 and 31.01.2002. Our attention is drawn to DoP&T OM dated 18.06.2014 which categorically states that no action should be taken on anonymous complaints are such complaints which do not carry name and address of the complainant. In support of such contention another judgment of Mumbai Bench of this Tribunal in Sachin Ashok Patil IPS vs Union of India and Anr. vide OA No.1050/2022 decided on 02.03.2023 is cited which reiterates that the charge memo framed on the basis of an anonymous/ pseudonymous complaint could not have been the basis of the impugned charge sheet. Emphasis is also laid on CVC circular issued as recently as 24.09.2020 with following stipulation:
"CVC circular dated 24.09.2020 (page 99 of OA) refers to CVC s circular dated 25.11.2014 (page 98) and (OA No.63/2024) (23) states "Commission has observed instances wherein some department/Organisations are taking cognizance of anonymous complaints despite strict guidelines issued by DOPT and CVC. Such non compliance /violation of guidelines by the concerned authorities would be viewed seriously."
22. It is argued by the learned counsel that though CVC from time to time has reminded the concerned departments/organisations about the above stand, yet the respondents have failed to take notice of the same, resulting in impugned charge sheet, consideration of such complaint by the CVC and its First Stage Advice wherein a major penalty was advised by them and wonders as how CVC have violated their own circular. Learned counsel for the applicant places reliance on the order of this Tribunal in OA No.2698/2004 titled as Vijay Khanna vs. Union of India & Anr decided on 28.07.2005, wherein charge sheet was set aside since it was issued on a pseudonymous/anonymous complaint and it was held that the advice of CVC is bound on its own instructions and could not have ignored them and therefore the advice tendered by CVC needs to be set aside. We are also apprised that the said order of the Tribunal has attained finality as it was upheld both by Hon'be Delhi High Court in WPC No 507/2007 and Hon'ble Supreme Court in CA No.1263/2009.Doubt is also expressed about the (OA No.63/2024) (24) relevant facts having actually been placed before the CVC, more specifically that the complaint was pseudonymous, leading to an erroneous advice by CVC.
23. As averred in OA, the learned counsel for the applicant points out that the articles of charge from II to VI are based on complaints dated 22.07.2020 and 24.07.2020 and though the respondents have claimed that after receiving said mail, verification was sought by the Ministry from the said mail ID where from aforementioned mail were received and a confirmation from the same was also received on 30.07.2020, it is common knowledge that with current advancement in technology fictitious email ID containing fake details of name, user id and password can also be created from anywhere with fraudulent intentions and mere exchange of email with the same fake email ID cannot constitute to be a "verification process" as envisaged in the Vigilance Manual, because in that case the purpose aimed at, of protecting innocent officers, from false complaints, would be defeated. It is submitted that in the instant case no verification was done to ascertain the identity of the complainant and the Ministry did not make any effort in this direction. Learned counsel for the applicant claims that Google Subscriber Information with regard to fake email ID (OA No.63/2024) (25) from which a complaint was pursued was created only one day before the complaint dated 22.07.2020 was sent. The Email ID [email protected] was created on 21.07.2020 at 18.13 hours in United Kingdom from a mobile no. bearing temporary SIM CARD.
24. Learned counsel for the applicant also expresses concern that in the instant case the Vigilance functionaries had been actively involved in the decision making process in violation of Para 2.9.1 of the Vigilance Manual which under caption "Association of CVO with their organizational matters" states as follows:
"ASSOCIATION OF CVO WITH OTHER
ORGANISATIONAL MATTERS
2.9.1 Participation in decision making or close association of CVO or the vigilance staff in such matters over which they might be required, at a later stage, to sit in judgment from vigilance point of view, should be avoided. Therefore, CVO and the vigilance functionaries should not be a party to decision-making processes, which are likely to have vigilance sensitivity, as this may result in conflict of interest. However, advice can be tendered on some policy matters especially those requiring implementation of preventive vigilance measures."
25. It is alleged that in the case of the applicant the CVO/CNV&I, who is the recipient of all three (3) complaints is actively involved in the preliminary enquiry, has issued the Memo dated 26.03.2021, charge sheet dated (OA No.63/2024) (26) 14.10.2022 and various other letters /replies to the applicant. Moreover, the inquiry officer has proceeded with the enquiry with the assistance of the secretariat of the vigilance, though he is an officer from the Ministry of External Affairs and has a full-fledged secretariat of his own, which shows active involvement of the vigilance functionaries in the decision making processes contrary to the relevant CVC instructions.
26. Attention is drawn to the order of this Tribunal in Mahender Kumar vs UOI and others in OA No.1893 of 2014 decided on 23.08.2018 wherein the applicant was charge- sheeted based on the report of the vigilance team. The Tribunal had allowed the OA and impugned orders were quashed. The respondents were directed to appoint an inquiry officer in terms of the rules and law on the subject. The order of Hon'ble Supreme Court in Union of India and Others vs Prakash Kumar Tondan (2008) in CA No.7349 is also cited in the above context.
27. We have considered the grounds raised by the learned counsel for the applicant.
28. Though several grounds have been taken by the applicant, the main ground on which the case hinges is about the legality of the charge sheet said to be based on (OA No.63/2024) (27) pseudonymous complaint. However, before considering the above, we have also dealt with the specific contention of the learned counsel about involvement of vigilance which has vitiated the proceedings. So far as the question of involvement of vigilance is concerned, the ratio of the judgments, cited by the learned counsel does not apply as in both the case of Mahender Kumar and Union of India (supra), the disciplinary proceeding was conducted by an officer of Vigilance Department. In the case of Union of India vs. Prakash Kumar Tandon, the said articles of charge were levelled against the applicant pursuant to a Vigilance Check Report and the inquiry was completed by one of the officers of the vigilance department of the respondents.
29. In the instant case, though the charge sheet has been signed by the CVO, the same has been done on behalf of the disciplinary authority and it is not the case as if IO who have been appointed for the case to conduct departmental proceeding, is from the vigilance department. Even the CVO who was appointed on 27.10.2022 is holding the additional charge of CVO/CNV&I and he is merely a part time CVO. It is also seen that the preliminary enquiry based on which charge sheet has been issued did not involve anyone from (OA No.63/2024) (28) the vigilance department per se, as said Inquiring Committee was headed by the Minister, Economic, comprised of First Secretary, Political and International Organisation and Attache Administration. Moreover though the charge sheet has been signed by the CVO, it has been duly approved by the Disciplinary Authority Therefore, it is clear that the vigilance had no role in the preliminary inquiry based on which subsequently the charge sheet was issued. As such, the ground regarding involvement of vigilance department in decision making process initiating the enquiry which does not appear to be tenable.
30. As mentioned above, the most crucial plea taken by the learned counsel for the applicant is about tenability of the charge sheet which is said to have been based on pseudonymous complaint. The related issue is CVC First Stage Advice which again said to derive sustenance from a pseudonymous complaint. Learned counsel for the respondents has brought our attention to the complaints dated 22.07.2020 and 24.07.2020 received through email dated 24.07.2020. The said complaints were also registered through PMOPG portal and allotted registration numbers as per procedure. He, alluding to the procedure which requires the Ministry to seek a confirmation that the complaint was (OA No.63/2024) (29) indeed sent by the complainant's mail, states that vide e- mail dated 27.07.2020 the complainant was requested to provide confirmation, evidence and proof to enable the respondents to take further necessary action. The response of the complainant was received on 30.07.2020 wherein the complainant had attached the evidence and proof which was also a confirmation that the said email was sent by the complainant only. Once the confirmation was received, the same was processed and a decision was taken to forward the complaint to High Commission of India, London and also to HCI Pretoria when the applicant was posted subsequently, requesting them to undertake preliminary investigation and send their detailed report with their comments to the Ministry. Accordingly, vide letter dated August 17, 2020 a letter was sent by the then JS, CNV&I to both the Missions to undertake preliminary investigation and send a report to the Ministry within two weeks of the receipt of the communication. The letter though signed by the JS CNV&I was issued with the approval of Foreign Secretary. On 22nd September 2020, another email received from the same ID wherein an allegation of misappropriate against school fee of the children of the applicant was alleged. Both the email and email id from which the said mail was sent, were (OA No.63/2024) (30) disowned by the complainant. The complainant also asserted in her following email that someone misused her email account to send the said communication and she has registered a complaint to Scottish Police in this regard.
31. We are of the view that though it has been argued by the learned counsel for the applicant that that charges are based on pseudonymous complaint sent through various emails ID and the email dated 20.09.2020 which the complainant has been disowned by the sender, the fact remains that even if the said ID was a fake ID, there was no mandatory provision to ascertain the genuineness of the ID going through the process of verification of the IP address or to ascertain as to how such id was created, before considering a preliminary inquiry. As per the procedure the respondents were not under any compulsion to do so and the course open to them was to get a confirmation from the complainant which they did with regard to the emails.
32. In the context of email sent from purported fake ID, learned counsel for the applicant draws attention to the order of the Hon'ble High Court of Delhi in A.V. Prem Nath vs. State (NCT of Delhi) vide CRL M.C. 4385/2023 decided on 22.01.2024 wherein the petitioner created a fake email- ID from the internet of his residence without the knowledge, (OA No.63/2024) (31) permission and presence of complainant and he made several complaints to different agencies against the particular individual only to implicate him in a false criminal case. In the above case, during the visit of FSL cyber team and Police at the residence of petitioner, it was found that he was not joining enquiry with Police team and he attempted to hamper email contents by opening the above email-id in another system. The High Court dealing with the matter held as under:
"24. So far as the contention of learned Senior Counsel for the petitioner with regard to ingredients of the offence for which the present FIR has been registered, it is pertinent to note that it has come on record that the petitioner had created an email-ID, i.e., [email protected], in the name of the complainant from his residence. It has also come on record that the petitioner was aware of an earlier email-ID being used by the complainant, i.e., [email protected]. The issue whether the said second email-ID was created by the petitioner with the consent of the complainant cannot be decided by this Court in exercise of jurisdiction under Section 482 of the CrPC. Section 464 of the IPC provides as under:
"464. Making a false document.-- A person is said to make a false document or false electronic record-- First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed (OA No.63/2024) (32) that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, singed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
In view of the above, it is prima facie clear that the aforesaid email-ID created by the petitioner falls with the definition of 'creating a false document'. Thus, the case of the petitioner will not be covered under the categories enumerated in Bhajan Lal (supra). Similarly, in Mohammad Ali (supra), the Hon'ble Supreme Court, in Para 10 of the said judgment, took the view that none of the ingredients constituting the offence alleged in the FIR were disclosed.
33. It is apparent that though it was held by the Hon'ble High Court that prima facie aforesaid email-ID created by the petitioner falls within the definition of 'creating a false document', the court also observed that matter is still under investigation. The learned counsel for the applicant argues that the instant case is also a case of creating false (OA No.63/2024) (33) document, without the consent of the person whose email ID was used to send the complaint against the applicant. However, we find that the ratio of above judgment does not apply in the instant case as neither there was any occasion nor rule required the respondents to verify the said e mail id through FSL, Cyber team or Police before going for preliminary enquiry nor the extant guidelines/instructions of CVC provide to undertake any such detailed verification of the email ID to ascertain its genuine or otherwise.
34. The extant guidelines for handling such matter are indicated in 3.10.4 and 3.10.5 of Vigilance Manual which reads as follows:
"3.10.4 Any complaint that does not bear the name and address of the complainant is an anonymous complaint. No action is to be taken on anonymous complaints by the Ministries / Departments / Organisations, irrespective of the nature of allegations, and such complaints should be filed. Such complaints shall not be treated as registered complaints.
5) (3.10.5) Similarly, no action is to be taken by the Ministries / Departments/ Organisations in the case of complaints which are treated as pseudonymous. A complaint that does not bear the full particulars of the complainant or is unsigned or is not subsequently acknowledged by a complainant as having been made is a pseudonymous complaint. Pseudonymous complaints will be referred to the complainant for confirmation / genuineness verification and if no response is received from the complainant within 15 days of sending the complaint, a reminder will be sent.
After waiting for 15 days of sending the reminder, if still no response is received, the said complaint may be (OA No.63/2024) (34) filed as pseudonymous by the concerned Ministry / Department. The relevant Circulars on the subject are CVCs Circular No. 07/11/2014 dated 25.11.2014, DoPT OM No.104/76/2011-AVD.I dated 18.10.2013 and Circular No.03/03/16 dated 07.03.2016." It is clear from the above that pseudonymous complaints will be referred to complainant for confirmation/genuineness verification and if no response is received from the complainant within 15 days of sending the complaint, a reminder will be sent. After waiting for 15 days of sending the reminder, if still no response is received, the said complaint may be filed as pseudonymous by the concerned Ministry / Department. As mentioned earlier, the aforesaid guidelines, instructions of CVC as contained in the Vigilance Manual were scrupulously followed in the instant case inasmuch as a confirmation was sought from the complainant and the complainant was also asked to provide evidence, if any, in support of the allegation, vide email dated 27.07.2020 and the complainant on 30th July, 2020 confirmed to have sent and also attached certain evidence and proof, which was already said to have sent in the earlier communication. Therefore, the complaint in question was treated as a genuine complaint and action as per rule was accordingly initiated. Accordingly, the High Commission set up a Committee to submit preliminary inquiry report into the (OA No.63/2024) (35) allegation. It was only during their visit that the complainant disowned the mail and Id. Thus, it is evident that the preliminary enquiry was initiated based on a complaint, the veracity of which had been ascertained by the respondents and hence the basic premise of the learned counsel for the applicant that charge sheet was based on pseudonymous complaints does not stand to scrutiny.
35. Learned counsel for the applicant has led us to divide the article of charges into two; the first regarding alleged misappropriation of school fee which she argues has its foundation in the pseudonymous email dated 22.09.2020, disowned by the complainant on 24.09.2020, as well as during preliminary inquiry and the second set(II to VI) is based on certain audit observations which are mentioned in the complaint dated 22.07.2022 which were in fact minor deviations and a result of certain action taken by the applicant keeping in view the administrative exigency in mind. It is contended that as such no misconduct can be established in the matter. It is also argued that the audit objections stand settled, as indicated in email dated 11.12.2023 from Consulate General Edinburgh to the Vigilance Department of MEA. Therefore, it is stressed that the articles of charge are not based on application of mind (OA No.63/2024) (36) the first part of the charge sheet being pseudonymous and in the second part no misconduct can be read.
36. However, to our mind, mere settlement of audit para does not mean that the act leading to raising of such paras can also be condoned. For example, there can be a case that public fund was kept into personal account of an officer which was later recouped to the appropriate head of account. From the perspective of audit, once amount kept in personal account is deposited in the appropriate public account, audit objection may be termed as settled or complied, but the issue whether such act amounts to misconduct or not remains open. Therefore, even though relevant audit paras have been stated to be settled, yet it cannot be said that act is free from misconduct, which can be decided only through a proper inquiry.
37. We also find that article of charge No-I (part one) alleging misappropriation of school fee has also been mentioned in the original complaint dated 22.07.2020 which has been treated as genuine and therefore it is not the case that the first article of charge is based on a subsequent mail dated 22.09.2020 which the complainant has disowned.
38. The email dated 22.07.2020 under the caption "Para 2:
Irregularities in payment of School Fee, reads as follows:
(OA No.63/2024) (37) 2.1 Annexure VII of IFS (PLCA) Rules was amended vide Order No. Q/GA/791/03/2017 Of date 20 February 2018. As per the amended provisions, in stations like London, Washington, Ottawa etc., where satisfactory education in English medium is available without payment of any school fees for children above the age of 3 years, no education allowance shall be admissible, nor shall any recoveries be made from the officers on this account. However, the said amendment did not entitle baby-sitting or nurseries to replace a normal school 2.2 It was noted that Edinburgh is a station where satisfactory education in English Medium is available without payment of fees. This fact has been reiterated in the Ministry's communication with the Post, in its partial communication, as available on records.
However, the Ministry was informed that no free education for kids in the range of 3 to 5 years was available in Edinburgh, based on a certificate from the Consulate. Subsequently, the Ministry, vide its Order of date 03 October 2018, had allowed empanelment of 'Early Days Nursery' for children of age group of 3 to 5 years.
In this regard, the following were observed:
2.3 As per the Government of Scotland website at https://www.mygov.scot/childcare-costs- help/funded-
early-learning-and-childcare/, up to 600 hours of funded early learning and childcare a year (around 16 hours a week in term time), for a child of 3 or 4 years old is free to parents, but funded by the Scottish Government. Hence, the assertion that full time free education is not provided is not correct.
2.4 As per the amendment made to the IFS (PLCA) Rules, a private school at Edinburgh (an English Speaking Station) could have been allowed only in case of non-satisfactory schools in these places. It was seen from the website of the 'Early Days Nursery that it was (OA No.63/2024) (38) a participating school in the free education provided by the Scotland Government and, hence, asked the parents to claim these benefits. Thus, the criteria of non-satisfactory education was not applicable in this case.
Real facts:-
Edinburgh is a place where best education in English language is available without payment of fees. Mrs Anju Ranjan, as per her usual habit, lied to the Ministry of External Affairs by informing that no free education for kids in the range of 3 to 5 years was available in Edinburgh, and forced the Consulate to submit a fake Certificate to the Ministry. Based on her false proposal, Mrs Anju Ranjan got the Ministry's approval, she misused it and substantial loss to the tax payers money occurred."
Therefore we find that in fact all the charges have their origin in email dated 22.07.2020, which was confirmed to have been sent by the complainant, as verified by respondents.
39. We have also gone through the audit paras which are the foundation of the charge sheet but have been said to be settled mostly on the basis of verified compliance. However we find that the audit observation itself is a pointer to a large number of discrepancies i.e. with reference to reply to para 22/24 regarding the Republic Day Celebration, it states that the applicant did not provide reasons as to why the bank transfer could not be made to the Indian food provider.
(OA No.63/2024) (39) Similarly, on the expenditure incurred on Market Expansion activities the audit observes that the reply is silent as to why advance was paid to a private individual, and why there was no justification for the rates, no invoices etc. Further with regard to the expenditure related to celebration of ICCR Foundation Day the audit points out that the reply is silent on why no invoices or proof of payments were made available in the records. It further says that work done in a rush cannot be a valid reason for making big payments without adequate justification and proof.
40. While it is not our mandate to make a threadbare analysis of the audit paras/findings or go into the merit of observations made by the audit but they are enough to suggest that despite compliance to the paras at a later date, the implicit misconduct in the acts cannot be overruled and hence the need for detailed inquiry cannot be overstated.
41. In view of the above discussions and more so the finding that the charge sheet was issued on the basis of complaints dated 22.07.2020 and 24.07.2020 which were sent in the name of complainant and were confirmed to have been sent by the sender, the complaint cannot be treated as pseudonymous and hence the charge sheet stands on its feet. We are also aware of the law laid down by the Hon'ble (OA No.63/2024) (40) Supreme Court in a catena of judgments that courts should not interfere at the stage of issuance of charge sheet and the charge sheet can be issued after close scrutiny of the actions and if the circumstances so warrant. Based on a preliminary inquiry report which originated from a complaint, the respondents had decided to take action against the applicant. Further as per the statutory provisions, it is necessary to seek the advice of CVC before initiating disciplinary proceedings against Senior Group "A" officer which has been done and there is no illegality in the procedure adopted. Moreover, the CVC has tendered its advice stating that the major penalty proceeding should be drawn against the officer. It is also difficult for us to comment on the assertion of the learned counsel for the applicant that in the instant charge sheet there is no element of misconduct as action of the applicant was drawn out of administrative exigency, because the consideration of the same can be best left to the outcome of the enquiry and wisdom of competent authority amongst the respondents. Here, we are also reminded that it is not even in the domain of the Tribunal to look into the correctness of the charges and to say that the charge levelled against the applicant is not maintainable. For doing so, one would have to go into (OA No.63/2024) (41) the merit of the charge sheet for which the departmental inquiry is initiated and we have no doubt that the respondents are not precluded from taking disciplinary action in such matters. The Hon'ble Supreme Court in Union of India vs K.K.Dhawan 1993 (2) SCC 56 has concluded that the disciplinary action can be taken in the following cases:
"Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party-,
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke (OA No.63/2024) (42) said long ago "though the bribe may be small, yet the fault is great."
The case of the applicant, to us, falls within the above parameters.
42. In view of the above discussions, we find that the OA is devoid of merit. We see no reason to set aside the charge memo dated 14.10.2022 read with the corrigendum dated 04.05.2023 and the order dated 21.06.2023. The OA is dismissed accordingly. However, it is clarified that our observations hereinabove, while dealing with other grounds raised by the applicant, shall not be read as our findings on the merit of the allegations, which are yet to be enquired into. No order as to costs.
43. The documents received under sealed cover from the respondents are also returned herewith.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/