Central Administrative Tribunal - Delhi
Shri Rakesh Kumar vs The Union Of India on 2 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2393/2010 New Delhi this the 2nd day of November, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri Rakesh Kumar, S/o Shri O.P.Gupta (IFS : 1972) r/o C-II/42, Safdarjung Development Area, New Delhi. Applicant ( By Advocate Shri Mukul Sharma ) VERSUS The Union of India Through, The Foreign Secretary/Secretary to the Ministry of External Affairs, South Block, Central Secretariat, New Delhi-110001 .. Respondent (By Advocate Shri A.K.Bhardwaj ) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
The Applicant has approached this Tribunal in this second round of litigation challenging the order dated 09.03.2010 by which his representation to keep the departmental proceedings in abeyance till the decision in criminal case has been rejected. Earlier the Applicant, an officer of the Indian Foreign Service (IFS) of 1972 batch, had approached this Tribunal through OA number 1876/2008 seeking direction to the Foreign Secretary, the Respondent therein, to keep the disciplinary proceedings in abeyance. He had pointed out in the aforementioned OA that his representation had been rejected by a totally non- speaking order. The Tribunal gave the following directions to the Respondent:
11. For the reasons aforesaid, without going into the merits of the case and other grounds raised in the OA, the impugned order being bald, unreasoned and non-speaking order is quashed and set aside and the case is remanded back to the Disciplinary Authority for fresh decision on the representation of the Applicant in accordance with law after giving an opportunity of hearing to the Applicant. It is expected that the Disciplinary Authority shall pass a reasoned and speaking order on the representation of the Applicant within a period of 3 months. We also direct that the Disciplinary Authority would not take any action in the Disciplinary case till the decision is taken on the Applicants representation. In case the Applicant is aggrieved by such a decision of the Disciplinary Authority, he is granted liberty to challenge the same in appropriate forum as per law. The impugned order has been passed pursuant to the directions given by the Tribunal in the above OA.
2. The Central Bureau of Investigation (CBI) filed a charge sheet number 12/2007 dated 24.12.2007 before the Special Judge (CBI) under Sections 120-B read with 420, 468 and 471 of the IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. The case related to the period when the Applicant was posted as the Director General, Indian Council of Cultural Relations (ICCR). The gravamen of charge was that the Applicant had entered into a conspiracy in the year 2005 with Shiv Kumar Sharma, Hargulab Singh and others and in pursuance thereof facilitated the empanelment of a bogus cultural group called 'Mehak Punjab Di' and indulged in human trafficking by illegally sending nine individuals to Berlin by misusing his official position for extraneous considerations. Nine members of the group defected in Germany and except Hargulab Singh, the rest have not returned back. It was alleged that the Applicant empanelled the group after the process of empanelment was over by re-convening the meeting of the Expert Sub-Committee. The Applicant exercised undue influence over the experts and got the said group empanelled with the ICCR by misusing his position. It was also alleged that the Applicant approved the minutes of the Sub-Committee himself without obtaining the approval of the President of the ICCR. He removed the note of the then DDG (P), Sh. M S Grover in which the proposal had been made that the approval of the President of the ICCR should be taken. The Applicant allegedly took the unprecedented step of visiting Ludhiana to see the performance of the said group. He availed of the hospitality of Hargulab Singh by way of board and lodging and other benefits. It has also been alleged that the Applicant also obtained sexual favours from one of the girls in the group. Some other persons who are not artists were included in the group on the instructions of the Applicant. The Applicant was also paid certain sums of money by Hargulab Singh to include non-artists in the group. The Applicant also pressurised the officials of the Indian Embassy in Berlin for performance by the group, whereas there was no requirement for such performance in September 2005 in Berlin. As a result the Applicant, in lieu of monetary considerations, sent a 15 member group of inexperienced and untrained folk dancers to Germany on the sponsorship of the Government, before his transfer from the ICCR. Undue favour was shown to one Shiv Kumar Sharma as manager of the group, whereas the said Shiv Kumar Sharma was neither a performer nor an official of the ICCR. He also created a false impression in the minds of the officials of the Indian Embassy in Germany that the group would be visiting Germany and other countries also, whereas the group was visiting Germany only.
3. On 01.04.2008 a Memorandum of Charge conveying eight articles of charge was issued to the Applicant. The articles of charge have been reproduced below:
ARTICLE 1 That the said Shri Rakesh Kumar, while working as Director General, Indian Council for Cultural relations (ICCR), facilitated empanelment of a bogus cultural group called Mehak Punjab DI. By his above act Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant thereby contravening the provisions of rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE II That the said Shri Rakesh Kumar, while working as Director General of Indian Council for Cultural Relations, facilitated the illegal trafficking of nine individuals to Germany under the guise of the said cultural group Mehak Punjab DI by misusing his official position for extraneous considerations.
By the above act, Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant thereby violating the provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE III That the said Shri Rakesh Kumar, while working as Director General of Indian Council for Cultural Relations, entered into a conspiracy with some persons with a motive to cheat ICCR (Government of India) by way of illegal human trafficking form India to Germany on government expenses, for their personal gains/illegal gratification.
By the above act, Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of Government servant thereby violating the provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE IV That the said Shri Rakesh Kumar, while working as DG, ICCR, exercised undue influence on the members of the Experts Sub committee for empanelment of cultural group Mehak Punjab DI though the performance of the group was not up to the mark.
By the above act, Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant thereby violating the provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE V That the said Shri Rakesh Kumar, while working as DG, ICCR, tampered with the official file containing minutes of the Expert Sub Committee by removing the note dated 24.8.2005 of Shri M.S. Grover, the then DDG (P), for approval of President ICCR, and substituting the same with a note dated 25.8.2005 of Shri R.M. Aggarawal, the then DDG.
By the above act, Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a government servant thereby violating the provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE VI That the said Shri Rakesh Kumar, while working as DG, ICCR, approved the empanelment list on the note of Shri R.M.Aggarwal, the then DDG (P), on 25.8.2005 without obtaining the approval of the President ICCR, against the precedent followed in ICCR regarding the procedure of empanelment of cultural groups/artistes.
By the above act, Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant thereby violating the provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE VII That the said Shri Rakesh Kumar, while working as DG, ICCR, sent a letter Dy. No. OCD/165/2005-2006 dated 5.9.2005 to Joint Secretary, Europe I Division, seeking political clearance for the said group Mehak Punjab Di, in which Shri Rakesh Kumar conveyed factually incorrect information that the said group was visiting Germany and other neighboring countries whereas the said group was visiting Germany and other neighboring countries whereas the said group was slated to visit Germany only.
By the above act, Shri Rakesh Kumar has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant thereby violating provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE VIII That the said Shri Rakesh Kumar went to Ludhiana, Punjab, on 01.09.2005-02.09.2005 to avail of hospitality of Shri Hargulab Singh and Shri Shiv Kumar Sharma, on the pretext of watching the performance of Mehak Punjab Di, Sh. Rakesh Kumar sexually exploited a lady artist names Ms.Anuj in Hotel classic Retreat, Ludhiana. No prior/post approval for the said visit was obtained by Shri Kumar, who claimed an amount of Rs.170,- towards daily allowance for one-day stay at Ludhiana. Payment of the said amount was made to Shri Kumar vide cheque No. 023543 dated 24.02.06.
By the above act, Shri Kumar has exhibited lack of integrity, lack of devotion to duty and contact unbecoming of a Government servant thereby violating provisions of Rules 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. While 82 witnesses have been cited in the criminal case, 58 witnesses have been listed in the disciplinary proceeding. The witnesses in the disciplinary proceeding are the same as in the criminal case. Same documents have been relied upon.
4. The issue whether departmental proceeding and the criminal trial can proceed parallely has been considered by the Honourable Supreme Court in Cap. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, 1992 (2) SLR 338 as follows:
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the inquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant, were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive, to allow the findings recorded at the ex parte departmental proceedings, to stand. 13. proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. 22. The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. The Respondent was expected to decide whether to hold the departmental proceeding simultaneously with criminal trial by taking into account the facts of the case and the questions of law involved and come to a conclusion that complicated questions of fact and law are not involved in the case before rejecting the Applicants representation to keep the departmental proceedings in abeyance. The Respondent has merely stated that :
5. The representation of Shri Rakesh Kumar has been duly examined and his kind attention is invited to DOPT Office Memorandum No. 11012/6/2007-Estt.A dated 01 August 2007 (copy enclosed), the second paragraph of which states that Honble Supreme Court had held in their various judgments, the important ones being State of Rajasthan versus B.K.Meena and others, Capt .M. Paul Anthony versus Bharat Gold Mines Limited, Kendriya Vidyalaya Sangathan and Others versus T.Srinivas and Noida Entrepreneurs Association versus Noida that merely because a criminal case is pending, a departmental inquiry involving the very same charges as is involved in the criminal proceedings is not barred. Para 5 of the same OM states that it is clarified that stay of disciplinary proceedings is not a must in every case, where there is a criminal trial on the same charges. This cannot be considered to be a speaking order. It was expected that the Respondent would make an analysis of the facts of the case and the questions of law involved and then come to a conclusion that the disciplinary proceedings and the criminal trial could proceed simultaneously. We have seen that the facts in both the disciplinary enquiry as well as criminal trial are identical and have to be proved through the same witnesses and the documents. The order of the Respondent is perfunctory and there has been no application of mind in as much as there has been no analysis on the lines of the guidelines laid down by the Honourable Supreme Court in the above cited case.
5. In the light of the above observations the OA succeeds partly. The impugned order dated 09.03.2010 is quashed and set aside, with direction to the Respondent to reconsider the issue in the light of our observations above and pass a speaking order giving logical reasons for rejecting the representation of the Applicant to defer the disciplinary enquiry till the trial in the criminal case is over. This direction would be followed within eight weeks of the receipt of a certified copy of this order. No costs.
( L.K.Joshi ) ( V.K. Bali) Vice Chairman (A) Chairman sk