Central Administrative Tribunal - Jodhpur
Dr Arun Kumar Mishra vs Consumer Affairs on 29 April, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00'193/2021
Judgment Reserved on :28.02.2022.
Date of decision: 29.04.2022.
CORAM
HON'BLE MRS. JASMTNE AHMED, MEMBER (J)
HON'BLE MS. ARGHANA NIGAM, MEMBER (A)
Dr. Arun Kumar Mishra, Aged 64 Years, S/o Late Shri Maden Gopal Mishra,
Former Official Liquidator, Super Bazar, New Delhi-1 10001, Resident of :
Hanwant Bagh, Opposite Police Lines, Ratanda, Jodhpur-342001 , Rajasthan
.......Applicant
By Advocate: Mr. Tushar Ranjan Mohanty, present through VC
Versus
Union of lndia through the Secretary, Department of Consumer Affairs,
Ministry of Consumer Affairs, Food & Public Distribution, Krishi Bhawan, New
Delhi-1 10001 .
........Respondent
By Advocate: Mr. B. L. Tiwari, Senior Central Government Standing Counsel,
present through VC
ORDER
Per Mrs. Jasmine Ahmed, Member (J) :
'1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, wherein the applicant is seeking the following reliefs:
"8(0 issue rule nisi to the Respondents;
(i0 quash and sef aside the impugnecl L4ajor penatty Charge Sheet dated 28.08.2020 tAruprure_I:11 as being bad in law:
Or, altematively
(iii) declare that the impugned Major penalty Charge Sheef dated 28.08.2020 fAruelgre;E!] has tapsed in view of the setiled law:
(iv) grant all consequential benefits ofthe same;
(v) allow exemplary costs of the preser Vht petition to the Appticant against the Respondents; and A^ *)-2
(vi) pass such other and fufiher order/(s) as may be deemed just and appropiate in the facts, circumstances and premises of the present case."
2. The brief facts as presenteci by the learned counsel for the applicant are that Applicant is a retired Officer of the Technical Service of the Central Government. The Applicant joined as Deputy Director (Co-operation) in the Respondent Ministry, on direct appointrnent through the Union Public Service Commission on 06.'10.1997. The Applicant earned his promotions in the Respondent Ministry. The Applicant was appointed as Chief Director in the Ministry of Agriculture and Farmers Welfare through the Union Public Service Commission in October, 2012. The Applicant superannuated from Government Service with effect from 31.01.2017 from the Minist'ry of Agriculture and Farmers Welfare, New Delhi.
3. The allegations against the Applicant in the impugned Major Penalty Charge Sheet dated 28.08.2020 nexure : A-1 pertains to his working as the Official Liquidator of the Cooperative Stores Limited (hereinafter referred to as the "Super Bazar").
4. The Super Bazar, Delhi, the Society in question, was established in'1966 under Bombay Cooperative Societies Act. Thereafter, it was registered as a Multi-State Cooperative Society (MSCS) under the Multi Sate Co-operative Societies Act, 1984 in the year 1996. The total Number of employees working in Super Bazar in the year 2001 was 2065.
5. The Super Bazar ran into heavy losses and eventually it was decided to wind it up. The Union Cabinet in its meeting held on 16.10.2001 approved the winding up and allocated funds for completion of wlnding up process.
6. Under Section 77 of Multi-State Co-operative Societies Act, 1984, the Central Registrar of Cooperative Societies, Department of Agriculture and Cooperation, Government of lndia issued orders on 05.07.2002 for winding up of Super Bazar. Vide Order daled 23.07.2002 [Annexure-1 to Annexure : A-5]. The Applicant was appointed as Official Liquidator of the Cooperative Stores Limited (Super Bazar) by the Central Registrar of Cooperative Societies under the Multi- State Cooperative Societies Act in place of Shri Kamal Kishore, former Economic N. 3 Advisor in the Respondent Ministry to complete the Liquidation proceedings of the Super Bazar.
7. After the winding up Order of the Super Bazar, a Voluntary Retirement Scheme was offered to all the employees of the Society on 17.09.2002. However, out of 2065 Employees at that point in time only 1000 Employees opted for the Voluntary Retirement Scheme and the remaining employees did not opt for the Voluntary Retirement Scheme.
8. The various Workers' Unions of Super Bazar namely (i) Super Bazar Karamchari Dalit Sangh; (ii) Super Bazar Karamchari Hitaishi Sangathan; and (iii) Delhi Shops and Establishment Union filed a number of Writ Petitions in High Court of Delhi challenging the order of winding up of Super Bazar, which were dismissed by the Hon'ble High Court of Delhi on 19.12.2003. Thereafter, the Super Bazar Karamchari Dalit Sangh filed a review petition in the Delhi High Court and the same was dismissed on 19.03.2004.
9. One of the Unions namely Super Bazar Karamchari Dalit Sangh filed a Special Leave Petition before the Hon'ble Supreme Court in January, 2005. The Hon'ble Supreme Court constituted a Committee on 28.02.2006 comprising Three Officers i.e. (i) Economic Adviser, Department of Consumer Affairs; (ii) Central Registrar of Cooperative Societies; and (iii) Official Liquidator (the Applicant) to explore the possibility of its revival and submit a comprehensive scheme which in their view is feasible.
10. Eventually, M/s Writers and Publishers Ltd. (WPL) were appointed as Adminishator under the Multi-State Co-operative Societies Act, 2002 to run Super Bazar on 09.07.2009 [Annexure : P45]. The New Management of Super Bazar started operations on 14.07.2009 and the Applicant handed over charge to the Administrator [Annexure : A-46]. M/s WPL returned the Government equity in October, 2009 amounting to Rs. 1 .16 Crores and infused own funds to revive Super Bazar. The Ld. Additional Solicitor General informed the Hon'ble Supreme Court that the Government loan of Rs. 65 Crores for payment of wages and dues to the workers of Super Bazar was waived by the Union cabinet in January 2006.
s 4 11 . The counsel for the Applicant contends that after return of Government equity there was no Government shareholding/equity and no Management Control of the Government over Super Bazar. The Super Bazar was privatized, and managed by M/s Writers and Publishers Ltd. and the Society was. M/s Writers and Publishers Ltd. was running the operations.
12. After the Constitution of Board of Directors in 2010, the Official Liquidator was not required to take any administrative action in Super Bazar. Due to difference of opinion between M/s Writers and Publishers Ltd. and the Worker's Unions, M/s Writers and Publishers Ltd., requested the Hon'ble Supreme Court on 23.02.2016, to permit the withdrawal of their offer with the request that the amount invested by M/s Writers and Publishers Ltd. may be returned with interest. Tfie Hon'ble Supreme Court allowed the prayer and directed WPL to restore the Super Bazar to the Official Liquidator. Thereafter, the charge of Super Bazar as Official Liquidator was again taken over by the Applicant on 11.01'.2017 till 31 .03.2018 [Annexure-4 to Annexure : A-5].
13. lt is the contention of the counsel for the Applicant, which has not been rebutted by the Respondent, that in the last week of March 2018, the Applicant met Dr. Ashish Bhutani, Central Regishar of Cooperative Societies. lt is the Applicant's case that the Central Registrar was of the view that since the Hon'ble Supreme Court was monitoring the case, it would not be proper to the leave the position of Official Liquidator vacant, and the Applicant should continue to function as the Official Liquidator. The formal orders of ertension were only a procedural formality and the extension could be done ex post facto. We note that besides the assertion and its non-traverse, an Order of extension was indeed passed continuing the Applicant as the Official Liquidator for a further term 45 days with effect from 01.04.2018 by the office of the Central Registrar of Cooperative Societies vide its letter dated 17.04.2018 [Annexure-3 to Annexure :
A-51. lt was further submitted that the applicant kept on discharging all the functions of Official Liquidator, Super Bazar as per the directions of the Cenhal Registrar of Cooperative Societies and attending all court proceedings including $ 5 the contempt proceeding in Supreme Court. Several payments were also made to various parties during this period.
'14. lt is further contended by the counsel for the Applicant that after the retirement of the applicant on superannuation from Government Service on 31 .01 .2017 , the Central Registrar, vide Order daled 27 .04.2018 [Annexure : A- 151 pursuant to a Letter dated 09.04.2018 from the Respondent, fixed the monthly remuneration of the Applicant at Rs. 50000/- (Rupees fifty thousand only) with effect from 01.02.2017 [Annexure : A-14]. The remuneration was to be charged from the funds of Super Bazar, which by then was a Privately Owned entity.
15. The tenure of the Applicant as Official Liquidator of Super Bazar was to come to an end on 15.05.2018 in terms of Order dated 17.04.2018 [Annexure-5 to Annexure : A-51. However, vide Order dated 08.06.2018 [Annexure-7 to Annexure : A-51, Shri S.S. Thakur was appointed as the Official Liquidator in place of the Applicant. Shri S.S. Thakur requested the Applicant through e-Mail dated 18.06.2018 [Annexure:A47] to handover charge and the Applicant handed over charge to Shri S.S. Thakur on the same day [Annexure-8 to Annexure : A-51.
16. The allegations against the Applicant as borne out from the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] are as follows :
Articl*l That, the said Dr. A.K. Misra, regular Director (Cooperation), in the Ministry of Consumer Affairs, Food & Public Distibution, Department of Consumer Affairs was appointed as Chief Director(Cooperation) in the Ministry of Agriculture, Co-operation and Farmers Welfare on deputation basis w.e.f. 31 .10.2012 and he was also holding additional charge of the post of Official Liquidator of Super Bazar, the Co-operative Store Ltd., which is under the Administrative control of Depaftment of Consumer Affairs. After aftaining the age of superannuation on 31.1 .2017, he continued to hold charge of the post of Official Liquidator of Super Bazar s till 31 .3.2018, which was extended up to 15.5.2018 by the Central 6 Registrar of Cooperative Sociefies (CRCS). The said Dr. A.K. Misra after expiry of his tenure as Official Liquidator of Super Bazar and in violation of Orders of the Hon'ble Supreme Coud dated 17.5.2018 passed ,n StP No.8398-8399/2005 lssued a Cheque No. 874572 dated 18.5.2018 amounting to Rs. 35 crores (Rupees thirty five Crores) unauthoizedly in favour of M/s Witers & Publishers Ltd. This act of the said Dr. A.K. Misra was against the interests of Super Bazar Cooperative Store Ltd. and unduly favored M/s Witers & Publishers Ltd who had submitted a bid for revival of the Cooperative.
Thus, by the above said act the said Dr. A.K. Misra, the then Ofticial Liquidator of Super Bazar, failed to peiorm his duty as per Section 89(2) of MSCS Act, 2002 and is pima facie guilty of grave misconduct by unduly favouing M/s Writers & Publishers Ltd and is liable to be proceeded against under Rule 9 of the Central Civil Services (Pension) Rules, 1972.
Ariicle..ll That, the said Dr. A.K. Misra, after his superannuation from the post of Chief Director(Cooperation) in the Ministry of Agiculture, Co-operation and Farmers Welfare and while he was holding the additional charge of the post of Official Liquidator of Super Bazar, the Co-operative Store Ltd., issued r,hsfructions to the Senior Counsel who was representing Super Bazar in SLP No. 8398-8399/2005 pending before the Hon'ble Supreme Couft not to appear before the Hon'ble Supreme Couft in the heaing dated 2.5.2018 and deliberately did not allow the conect facts conceming Super Bazar to be placed before the Hon'ble Supreme Court. Thus, by the above said act, the said Dr. A.K. Misra, the then Official Liquidator of Super Bazar failed to peiorm his duty as per Section 89(2) of MSCS Act 2002 and is pima facie guilty of grave misconduct and liable to be proceeded against Rute 9 of the Centrat Civil Servrces (Pension) Rules, 1972.
Article-lll s 7 That, the said Dr. A.K. Misra, after his superannuation from the post of Chief Director (Cooperation) in the Ministry of Agiculture, Co-operation and Farmers Welfare and while functioning as the Official Liquidator of Super Bazar till 15.5.2018, engaged Shi Sajjan Powaiy, Senior Advocate who made statement before Hon'ble Supreme Couft in SLP No.8398- 8399/2005 and Contempt Petition No. 1207-1208/2018 that Dr. A.K. Misra was still holding charge of Official Liquidator and he was representing the said Dr. Misra and the cheque was lssued legally by him. This false statement could not have made by the Senior Advocate without specific instructions of the said Dr. A.K. Misra.
Thus, the said Dr. A.K. Misra, by the above said act, is prima facie guilty of grave misconduct and becomes liable to be proceeded against under Rule 9 of the Central Civil Sevices (Pension) Rules, 1972."
17. The Applicant filed the present OA challenging the aforesaid Charge- Sheet dated 28.08.2020 [Annexure : A-1]. Pursuant to the notice issued by this Tribunal vide its Order dated 29.10.2021, the Respondent initially filed its Preliminary Objections, which were overruled vide Order dated 29.11.2021. Thereafter, the Respondent has filed its Counter-Reply to the OA, contesting the claims of the Applicant. The Applicant has filed his Rejoinder to the Counter- Reply reiterating his earlier stand. The Respondent has filed certain Judgments and the Applicant filed certain Documents on record. The same have been exchanged between parties.
18. The Applicant has challenged the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] on the following grounds :
(a) The Respondent Department has no jurisdiction to issue the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1];
(b) The provisions of the Rules under which the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] has been issued could not have been invoked:
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(c) The allegations in the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] do not amount to Misconduct, as understood in the legal parlance;
(d) Even otheruise, the allegations cannot be categorized as Service Misconduct;
(e) Non-Supply of the First Stage Advice of the Central Vigilance Commission to the Applicant makes the entire exercise bad in law; (0 Article 2 and Article 3 of the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] are based on conjectures and surmises;
(S) The Reply of the Applicant to the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] was not considered by the Respondent before appointing the lnquiring Authority shows the pre-determined mind of the Respondent;
(h) The impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] is deemed to have been lapsed in view of the latest pronouncements of the Hon'ble Supreme Court and the Hon'ble High Court of Delhi.
19. We have heard the parties at length and we have perused the bulky records of the case.
20. Regarding Ground (a) it is the contention of the counsel for the Applicant that the Respondent Department had no authority to issue the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-'l]. He submits that if at all, the proper Authority would have been the Ministry of Agriculture and Cooperation, if at all a charge-sheet could be issued on the aforesaid facts. The Applicant submits that upon his selection by the Union Public Service Commission for the post of the Chief Director in the Ministry of Agriculture, the Applicant joined this post in the a ernoon ol 31.10.2012 [Annexure :A-32]. He was no longer associated with the Respondent Ministry which had relieved him vide Office Order dated 29130.10.2012 [Annexure : A-34]. The Notification dated 31.01.2017 [Annexure : A-35] declaring that the Applicant superannuated from $ I Government service was issued by the Ministry of Agriculture and Farmers', Welfare and the Pension Payment Order [PPO] issued by the Ministry of Agriculture [Annexure : A-38] was also issued by the Ministry of Agriculture. Thus it is submitted that the Respondent Department was not his last employer and could have had no jurisdiction to issue the Charge-Sheet to the Applicant who was working in another Department upon selection by the Union Public Service Commission.
21. To buttress his claim further in this regard, the counsel for the Applicant has relied upon the Letter dated 31.08.2018 [Annexure:A-39] issued by the Respondent Ministry to the Ministry of Agriculture, especially Paragraph 4 thereof, which reads as follows :
"4. The Appointing Authoity of Dr. A.K. Mishra, the former Chief Director in the Ministry of Agiculture, Cooperation and Farmers' Welfare, Govemment of lndia, whose superannuated on 31 .01 .2017, is the President of lndia, the power of the President of lndia is exercised by the Ministry of the Cadre Controlling Ministry in Disciplinary mafter as per MHA Memo No. F-39h/69-Esfs dafed 16.04.1969. ln the res t of Dr. A.K. Mishra. the former Chief Director. the Min of Aqriculture, Cooperation and Farmers' Welfare beinq the cadre Ministry, Minister, '.r' Aqriculture Coepefi tiolL and Farmers' Welfare can exercise the power of the President of lndia in the matter. Howeve r, the Misconduct of Dr A.K. Mishra, retired Group A, Officer and Pensioner, has come to notice of this Depadment and his action and conduct as Official Liquidator of Super Bazar, the Cooperative Sfores Ltd., a Cooperative organisation under the administrative control of this Deparlment. Hence, it is necessary that the Deparlment may consider the Misconduct take a decision as to if it is a grave Misconduct and refer the matter to the Ministry of Agriculture, Cooperation and Farmers' Welfare for taking necessary action as per Secfion 8 of the CCS (Pension) Rules, 1972."
IEmphasis Supplied] $ 10
22.lnviewoftheabove,learnedcounselfortheapplicanthasarguedthat issuance of the impugned Major Penalty charge sheet dated 28.08.2020 [Annexure:A-1] by the Respondent Department is non-est in law and without jurisdiction, as it is an admitted fact that the Hon'ble Minister of Agriculture, Cooperation and Farmers' Welfare was the Competent Authority to issue a Charge Sheet to the Applicant. He has placed reliance on several Judgments of the Central Administrative Tribunal, the Hon'ble High Court of Delhi and the Hon'ble Supreme Court in his support [Annexure-10 (Colly) to Annexure : A-5].
23. Shri B.L. Tiwari, learned counsel for the respondents has vehemently opposed the claim of the applicant by citing Notification dated 06.11.20'12 [Annexure : A-32] and pointing out that the Applicant was on deputation to the Ministry of Agriculture for a period of five years with effect from the afternoon of 31.10.2012 or until further orders, whichever is earlier. He further placed reliance of Notification dated 04.01.2013 [Annexure:A-33] to show that the earlier Notification dated 06.11.2012 [Annexure :A-32] was modified and the tenure of the Applicant was "for a peiod of five years or till the date of retirement on superannuation or until fufther orders, whichever is ea ief'. lt was his contention that as the Applicant was on deputation to the Ministry of Deputation, he was deemed to have maintained lien in the Respondent Ministry and in view of the same the Respondent Ministry had the authority to issue the Charge Sheet dated 28.08.2020 [Annexure : A-1] under challenge.
24. ln rebuttal to the arguments of counsel for the respondents, the counsel for the applicant has brought to our Notice the Notification daled 12.03.2014 [Annexure : 436], by which the post that was earlier held by the Applicant in the Respondent Ministry was filled up on regular basis on the recommendations of the Union Public Service Commission. He submits that if a person held lien on a post, it could not have been filled up on regular basis, so long as the lien subsisted over on the said post.
25. Counsel for the applicant further draws our attention to the Office Order dated 05.05.2015 [Annexure:A-37], whereby Shri S.S. Thakurwas appointed on a regular basis on the recommendations of the Union Public Service Commission At 11 to the post that was earlier held by the Applicant in the Respondent Ministry. He submits that the Order dated 05.05.2015 undercuts the argument of the leanred counsel for the respondents. lt is noted that the said Shri S.S. Thakur was appointed as Official Liquidator to succeed the Applicant vide Order dated 08.06.2018 [Annexure-7 to Annexure : A-5].
26. lt is further contended by the counsel for the appllcant that even if it is assumed, that the Applicant was on deputation to the Ministry of Agriculture and was holding lien in the Respondent Ministry, then too, in terms of Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Disciplinary Authority for the Applicant would be the Ministry of Agriculture. Rule 20 of the Central Civil Services (Classification, Conhol and Appeal) Rules, 1965 states that :
"Where the services of a Govemment servant are lent bv one depaftment to another depaiment or to a State Govemment or an authority subordinate thereto or to a local or other authority (hereinafter in this rule refened to as "the bonowing authoity"), the bonowinq authoritv shall have the powers of the appointing authoity for the purpose of placing such Government servant under suspension and of the disciplinarv authoritv for the ourpose of conductinq a disclD linarv oroceedino aoainst him."
[Emphasis Supplied]
27. Counsel for the applicant places reliance on the Judgment dated 05.12.2019 of the High Court of Manipur Annexure : A-40 , wherein the Hon'ble High Court has observed as follows :
"5. ...... On perusal of this rule, it is absolutely clear that the wordings of this rule are clear, plain and unambiguous and require no interpretation at all. lt provides that when lhe servlces of an olficer are lent to a depadment or a State Govemment or any other authoity, it is the borrowing authoity which shall have the power to suspend and initiate disciplinary proceedings against him/her. lt is nowhere stated in this rule that in addition to the power being confened upon the borrowing authority' the lending authoity shall continue to enioy the same power.
s
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xxx xxx xxx
8. Keeping the above in mind, we proceed to consider the plea whether the leamed Single Judge was justified in interpreting Rule 20 of the CCS (CCA) Rules,7965. Rules 20(1) of fhe CCS (CCA) Rules, 1965 which has been extracted in para no. 7 of the order of the leamed Single Judge, provides that the bonowing authority shall have the power to suspend and initiate disciplinary proceeding against an employee so long as he is under the control of the bonowing authoity. The inference is that fhe Sfate Govemment which has lent the service of the respondenU wit petitioner would have any power to initiate disciplinary proceeding till the deputation continues. ln the present case, the memorandum was issued on 03.01.2002 when the respondentlwit petitioner was still on deputation and it would expire only on 18.04.2002. Therefore, fhe Sfale of Manipur did not have the authority to r.ssue the memorandum of charge against the respondent/wit petitioner. This interpretation is on fhe basls of the rules/ provisions and cannot be faulted with."
28. We are clear that no quasi-judicial authority can erroneously assume jurisdiction and to proceed to take action which has civil consequences on the citizen. ln Raza Textiles Ltd. v. lncome Tax Ofticer, AIR 1973 SC 1362 :(1973) 1 SCC 633, the Hon'ble Supreme Court held as follows:
"No authoritv, much /ess a quasl-tudicial autho ritv. can confer iurisdiction on itself bv decidinq a iurisdictional fact wronqlv The question whether the iurisdictional fact has been rishtlv decided or not is a uestion that is o en for examination b the Hi h Court in an apolication for a writ of ceftiorari. lf the High Court comes to the conclusion, as the leamed single Judge has done in this case, that the lncoine-tax Officer had clutched at the juisdiction by deciding a juisdictional fact enoneously, then lhe assesses was entitled for the writ of ceftiorai prayed for by him. lt is incomprehensible to think that a quasi- judicial authority like the lncomelax Officer can enoneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. In $ 13 our opinion the Appellate Bench is wholly wrong in opining that the lncome-tax Officer can "decide either way"." (Emphasis supplied)
29. The Hon'ble Supreme Court in its Judgment dated 05.09.2013 in Union of lndia v. B.V. Gopinath, (2014) 1 SCC 351 flast Judgment of Annexure-10 (Colly) to Annexure : A-51 has held that "... proposed afticles of Charge would only be finalised by the Disciplinary Authoitf'. The question that has arisen for our consideration is whether the jurisdiction existed in the Respondent Department in accordance with the Rules. The question of jurisdiction goes to the root of the matter and is a neat question of law. The letter of the Respondent does undercut the argument that the Respondent Department had jurisdiction; but since jurisdiction must be shown to exist from the legal regime, we ignore the letter of the Respondent to the Ministry of Agriculture and proceed to examine the question in the light of the Rules.
30. The Applicant is either an employee borne on the rolls of the Ministry of Agriculture, or he was an employee borne on the rolls of the Respondent Department but was on deputation in the Ministry of Agriculture. There is no third possibility. We do not consider it necessary to decide as to whether the Applicant was an employee borne on the rolls of the Ministry of Agriculture, because this case can be disposed of based on the own showlng of the Respondent, that the Applicant was on deputation to the Ministry of Agriculture. lf that be so, and we do not pronounce a finding on this aspect as not necessary to determine this /rs, it is clear that Rule 20 is attracted. We hold that it was the Ministry of Agriculture which was Competent Authority to act as the Disciplinary Authority. The Respondent Department did not possess the authority to issue a Charge-sheet to the Applicant in view of the express conferment of jurisdiction on the Ministry of Agriculture under the Rules.
31. We did apply our mind to the question as to whether the matter be remifted back to the Disciplinary Authority. We refrain from remitting the matter, noting that the Respondent had written to the Competent Disciplinary Authority which had chosen not to act thereon. lt is noted that as the Applicant has superannuated on 31.01.20'17, which is more than five years ago, no fresh $ 14 Charge Sheet can be issued to the Applicant in terms of Rule 9 of the Central Civil Services (Pension) Rules, 1972. ln view of the aforesaid facts, we are of the view that a remand of the mafter at this stage is not called for.
32. While the above finding on Ground 1 alone is, in our opinion, sufficient to allow the OA, we intend to give our findings on the other grounds taken in the OA also, in line with the judgment of the Hon'ble Supreme Court in Fomento Resorfs and Hotels Ltd. v. Gustavo Ranato Da Cruz Pinto & Ofhers, 1985 AIR SC 736 :
'f 985SCR (2)937:1985SCC (2)152: 1985 SCALE (1) 394, wherein itwas said "/n a mafter of this nature there several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, it is desirable as was observe d by the Privy Council long time ago to avoid delay and protraction of litigation that the coutt should, when dealing with any mafter dispose of all the points and not merely rest its decision on one single point."
33. ln regard to ground (b) it is urged by counsel for the applicant that the provisions of Rule 8 of the Central Civil Services (Pension) Rules, 1972 cannot be invoked in the fact-situation of the case to issue the impugned Major Penalty Charge Sheet dated 28,08.2020 [Annexure : A-1]. lt is contended by the counsel for the applicant that the applicant has neither been convicted on a criminal charge nor has he been held guilty of grave misconduct.
34. The said Rule reads as follows :
"8. Pension subject to future good conduct.-
(1)(a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these ru/es.
(b) The appointing authoity may, by order in writing, withhold or withdraw a pension or a pai thereof, whether permanently or for a specified period, if the pensioner is convicted of a senbus cime or is found guilty of grave misconduct.
Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.
$ 15 (2) lMhere a pensioner is convicted of a serious cime by a Court of Law, action under sub-rule (1) shall be taken in the light of the judgment of the couft relating to such conviction.
(3) ln a case not falling under sub-rule (2), if the authoity refened to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passlng an order under sub-rule (1),
(a) seNe upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such fufther time not exceeding fifteen days as may be allowed by the 1[appointing authority] such representation as he may wish to make against the proposal; and
(b) take into consideration the representation, if any, submitted by the pensioner under Clause (a).
(4) lilhere the authority competent fo pass an order under sub-rule (1) is the President, the Union Public Seruice Commission shall be consulted before the order rs passed.
(5) An appeal against an order under sub-rule (1), passed by any authoity other than the President, shall lie to the President and the President shall, in consultation with the Union Public Seruice Commission, pass such orders on the appeal as he deems fit.
EXPLANATION.-ln this rule, -
(a) the expression 'senous cime' includes a cime involving an offence unddrthe Official Secrets Act, 1923 (19 of 1923);
(b) the expression 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, arlicle, note, document or information, such as is mentioned in Secflon 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as fo prejudiciaily affect the interests of the general pubtic or the secuity of the State.,, A).
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35. Counsel for the respondents very fairly conceded that Rule 8 of the Central Civil Services (Pension) Rules, 1972 would not be applicable in the present case. However, he sought to defend the Charge-sheet on the plea that mention of a wrong provision of the Rules would not be fatal to the proceedings. He contends that the power to issue the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure :A-1] can be kaced to Rule 9 of the Central Civil Services (Pension) Rules, 1972. He draws our attention to the fact that the Applicant retired on 31 .01.2017 and that the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-'l] has been issued within four years of ! the superannuation of the Applicant.
36. Learned counsel for the applicant thereupon drew our attention to said Rule to contend that the same too is not applicable. Rule 9 of the Central Civil Services (Pension) Rules, 1972 is quoted below for ready reference :
"9. Right of President to withhold or withdraw pension (1) The President reserves to himself the ight of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordeing recovery from a pension or gratuity of the whole or part of any pecuniary /oss caused to the Govemment, if, in anv depaftmental or iudicial proceedinos, the oensioner is found quiltv of qrave misconduct or neolioence durina the period of service, includinq service rendered upon re-employment after retirement :
Provided that the Union Public Serylce Commission shall be consulted before any final orders are passed Provided fufther that where a part of pension is withhetd or withdrawn the amount of such pensions shall not be reduced betow the amount of rupees lhree hundred and seventy-five per mensem. (2)(a) The depaftmental proceedings refened to in sub+ule (1), if instituted while the Govemment servant was in service whether before his retirement or during his re-employment, shalt, after the final retirement of the Govemment servant, be deemed to be proceedings under this rule N 17 and shall be continued and concluded by the authoity by which they were commenced in the same manner as if the Govemment seruant had continued in service :
Provided that where the depaftmental proceedings are instituted by an authoity subordinate to the President, that authoi$ shall submit a repod recording its findings to the President.
(b) The depaftmental proceedings, if not instituted while the Govemment servant was in seruice, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and (iiil shall be conducted by such authoity and in such place as the President may direct and in accordance with the procedure applicable to depadmental proceedings in which an order of dismissal from service could be made in relation to the Govemment seruant duing his service.
(3) Omitted (4) ln the case of Govemment seruant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where depadmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinaily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Govemment servant.
(6) For the purpose of this rule, -
(a) depaftmental proceedings shail be deemed to be instituted on the date on which the statement of charges rs rbsued to the Govemment s 18 seNant or pensioner, or if the Govemment servant has been placed under suspensron from an eailier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted-
(i) in the case of ciminal proceedings, on the date on which the complaint or repoft of a police ofticer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court." [Emphasis Supplied]
37. From a plain reading of the above Rule we hold that it pertains to Misconduct committed during the service period of the Employee. Admittedly, the allegation pertains to a period afier his superannuation from Government Service. The Applicant was not in Government Service on the date on which he committed the alleged act, having not been re-employed by Government for Government Service. We agree with the contention of the learred counsel for the applicant that this provision does not entail any Penal Action for any MisconducVConduct that has occurred after the superannuation of a Central Government Employee.
38. Counsel for the applicant further submitted that the impugned Major Penalty Charge Sheet dated 28.08.2020 nexure : A-1 refers to Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and contends that the Central Civil Services (Classification, Control and Appeal) Rules, '1965 are not applicable in the present case. He draws our attention to Rule 3 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which reads as follows:
'3. Application.-
(1) These rules shall apply to every Govemment seruant inctuding every civilian Govemment servant in the Defence Seryices, but shatt not apply to -
(a) 'any railway seruant, as defined in Rute 102 of Votume I of the I ndian Railways Establishment Code,
(b) any member of the Alt tndia Serylces, s 19
(c) any person in casual employment,
(d) any person subject to discharge from service on /ess than one month's notice,
(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.
(2) Notwithstanding anything contained in sub-rule (1), the President may by order exclude any Group of Govemment seruants from the operation of all or any of these rules.
(3) Notwithstanding anything contained in sub-rule (1), or the lndian Railways Establishment Code, these rules shall apply to every Govemment servant temporaily transfened to a Service or post coming within Exception (a) or (e) in sub-rule (1), to whom, but for such transfer, these ru/es would apply.
(4) lf any doubt aises,-
(a) whether these rules or any of them apply to any person, or whether any person to whom these ru/es apply belongs a pafticular Service, the matter shall be refened to the President who shall decide the same."
39. Learned counsel for the respondents did not vehemently argued on this point but contended that a person having been in Government Service cannot commit misconduct himself even after retirement.
40. Learned counsel for the applicant hereupon drew our attention to the law declared by the constitution Bench in Sfate of Madhya pradesh v. Thakur Bharct Srngh, AIR 1967 SC 1170:1967 SCR (2) 454 (page 459-F of SCR)to contend that when any prejudicial/penal consequence is to follow, such an order must have the support of a statute empowering the same. The Hon'ble Supreme court had held as follows:
N $y 20 "(iii) All executive action which operates to the prejudice of any person must have the authority of law to supporl it, and the terms of Art. 358 do not detract from that rule. Afticle 358 expressly authoises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Paft lll of the Constitution. Afticle 358 does not purport to invest the State with arbitrary authoity to take action to the prejudice of citizens and others: it merely provides fhal so long as the proclamation of emergency subslsts laws may be enacted, and executive action may be taken in pursuance of lavtful authority, which if the provisions of Art. 19 were operative would have been invalid."
41. Learned counsel for the respondents was unable to show any other provision which empowered the Respondent to initiate penal action.
42. Respectfully following the judgment of the Constitution Bench, which has settled the law that no penal action can be taken with the backing of a specific provision for the same, we hold that neither Rule 8 of the Central Civil Services (Pension) Rules, 1972, nor Rule 9 of the Central Civil Services (Pension) Rules, 1972 is applicable in the present case. lt is also seen that the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 cannot be applied in the present case. Therefore, the impugned Charged 28.08.2020 [Annexure : A-1] does not have the support of any statutory provision.
43. ln regard to ground (c), it is urged by the counsel for the applicant that the allegations in the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] do not amount to Misconduct, as understood in the legal parlance. The allegations against the Applicant in the impugned Major penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] is that while the tenure of the Applicant as Official Liquidator was over on 15.05.2018, the Applicant issued a Cheque in favour of M/s Writers and Publishers Limited on 1g.05.201 g.
44. ln this regard the contention of the Applicant is twofold. Firsfly, the Applicant referred to the communication daled 17.04.201g [Annexure-S of Annexure : A-51, whereby the tenure of the Appricant as officiar s Liquidator was 21 extended retrospectively with effect from 01 .04.2018. Therefore, it was but natural for the Applicant to expect the same process of ex posf facfo orders to come again and in view of the same it was argued that it would not be proper to place the blame at the doorstep of the Applicant. Counsel for the applicant further referred to Order dated 08.06.2018 [Annexure-7 to Annexure:A-5] to point out that while it is stated therein that the tenure of the Applicant was extended up to 15.05.2018, the said Orderappointed the new Official Liquidator from 08.06.2018 only and a copy of the said Order has been marked to the Applicant calling him the Official Liquidator. Therefore, the Applicant claims that there was deemed extension of his tenure as Official Liquidator.
45. ln this regard, Learned counsel for the applicant has relied upon the following Judgments :
(a) Baldev Singh Gandhi v. Slate of Punjab, AIR 2002 SC 1124 Annexure:
(b) M.M. Malhotra v. Union of lndia, 2005 AIR SCW 5497 lAnnexure :
A-91:
(c) Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407 : JT 2012 (3) SC 186 : 2012 (3) SCALE 303 Annexure:A-10
(d) lnspector Prem Chand v. Govt. of N.C.T. of Delhi, 2007 (4) SCR 968 : (2007) 4 SCc 566 : 2007 (5) SCALE 421 :2007 (5) JT (Sc) 294 Annexure : A-1 1
(e) Union of lndia & Others v. J. Ahmed, AIR 1979 SC 1022: 1979 (3) SCR 504 :1979 (2) SCC 286 nexure:A-12 (0 P.H. Kalyani v. Air France, AIR 1963 SC 1756 Annexu :A-13
46. From these Judgments it is seen lhal "Misconduct has been defined in Black's Law Dictionary, Sixth Edition as : A transgression of some estabtished and definite rule of action, a forbidden act, a dereliction from duty, unlawfut behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement offense, but not negrigence or carelessness.,, However, " Mere error of n t resultinq in doinq of neqlioent act does not amount to $ 22 misconduct'. The Supreme Court has also coined the word "innocent mistake", which do not amount to Misconduct.
47. lt is the contention of the counsel for the applicant that the applicant acted in pursuance to the directions of the Hon'ble Supreme Court contained in its Order dated 17.05.2018 [Annexure : A421, where the Applicant was a party in person. lt was contended by the learned counsel for the respondents that it was the duty of the Applicant to have informed the Hon'ble Supreme Court on 17.05.2018 that his tenure had ended on 15.05.2018 and as the Applicant had not done so, he would have to face the consequences.
48. Counsel for the applicant submits that the Union of lndia was also a party and was represented by several Government Advocates, who however, did not also bring this fact to the notice of the Hon'ble Supreme Court.
49. We have now to examine in the facts and circumstances of the present case as to whether the actions of the Applicant would amount to Misconduct or not. The counsel for the Applicant contends that it was in compliance of the Order of the Hon'ble Supreme Court. The counsel for the Respondent contends that it was not the Applicant who could comply with it. At the most, it is a case of mistaken compliance, mistaken insofar as the Applicant believed that the orders of his extension would come over in due course of time. The Applicant has in fact been a beneficiary of such an ex post facto order.
50. lt is trite that mere negligence is not Misconduct and neither will error of Judgment amount to Misconduct. However, acts arising out of ill motive would amount to Misconduct and so would habitual or gross negligence. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, as : "? transgression of some estab/ished and definite rule of action, a forbidden act, a dereliction from duty, unlawfut behaviour, willfut in character, improper or wrong behaviour, rfs synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement offense, but not negtigence or carelessness".
51. Learned counsel for the applicant has urged us to consider the facts that had been brought out by the Applicant in his Repry dated 0s.10.2020 $ [Annexure :
23
A-51 to the Charge Sheet dated 28.08.2020, especially Paragraphs 53 to 69 thereof. ln Paragraph 53 of the Reply dated 05.10.2020 [Annexure : A-5], the following quote from the Orders of the Hon'ble Supreme Court are reproduced :
"12....... After due deliberation by all the pafties, including the Union govemment, this Coud obseNed that WPL "should be refunded the entire investment made by them along with interest at the rate of 6 per cent per annum subject to deduction of profits made duing the period when the affangement subsrsfed". WPL in terms of the aforesaid direction is entitled to interest at 6 percent on the entire investment made by it. lnvestment brought in by way of share capital, did fall within the above mandate. lt is paft of the overall investment by WPL. The order of this Court envlsages an exit for WPL. The order directs that there be a deduction of profits made, since WPL was being compensated by way of interest on its investment. Consequently, it would be impermissible to deny WPL the benefit of interesf on ifs entire investment inclusive of share capital.
13...... We are also of the view that the adjustment of /osses incurred in Super Bazar and their deduction from the amount to be refunded to WPL is contrary to the mandate of the order dated 29 March 2016. CAG was only required to deduct the profits which had accrued in favour of WPL while determining the amount refundable to it.......
16.... However, we direct that all concemed shall now act in pursuance of the observations contained in this order and the interpretation placed on the earlier directions dated 29 March 2016."
52. ln Paragraph 59 of the Reply dated 05.10.2020 [Annexure :A-5], the Applicant has also quoted from his letters daled 22.05.2018 and 28.05.2018, which is as follows :
"As the charge of Super Bazar was taken over on the direction of the Hon'ble Courl vide order dated 29.03.2016, it is once again requested to extend the term of Official Liquidator of Super Bazar up to 31 .08.201g so that the orders of the Hon'ble supreme court could be complied in toto. lt is also informed that the undersigned is stitt discharging the duties of the Sy 24 Official Liquidator of Super Bazar within the ambit of Section 89 and 90 ot MSCS Act 2002 and also under article 144 of the Constitution of lndia which provides all Civil and Judicial authoities required to act in aid of the Hon. Supreme Court. The said authoities are duly bound to comply with the order of Hon'ble Supreme Court and not obstruct the same."
53. ln the Charge Sheet dated 28.08.2020 [Annexure : A-1] there is no allegation of any wrongful gain by the Applicant, nor any ill motive. We agree with counsel for the applicant that it is at the most a case of mistaken compliance and hence an innocent misconduct. Therefore, the allegations cannot amount to Misconduct and we find in favour of the Applicant in this regard.
54. As regards Ground (d), it is contended by counsel for the applicant that even otherwise, the allegations cannot be categorized as Service Misconduct. ln this regard, he argues that the Applicant was in Private Employment and was being paid a monthly remuneration by the Super Bazar, which was a Private Entity [Annexure :A-14 and Annexure :A-15]. Further, basing on the Allocation of Business to the Respondent Ministry under Allocation of Business Rules, 1961 [Annexure : A-7], Super Bazar is not under the Respondent Ministry, thereby contends that the same is not a Government Entity. lt was also argued that literally anyone could be appointed as the Official Liquidator and, therefore, any act done as Official Liquidator cannot be termed as Service Misconduct.
55. Learned counsel for the respondents contended that Super Bazar was under the administrative conhol of the Respondent Department. Counsel for the applicant contends that with the return of capital by WPL to the Government, it has ceased to be a Government entity and thus the assumption of administrative control itself is baseless. We queried as to whether with the WPL being paid its money back, the Government would not get its shares back. The counsel for the Applicant submits that the funds of WPL are to be returned from the funds of Super Bazar, which is not related to the Government after the WpL returned the Government investment. The existing individual shareholders and the new individual shareholders would pay wpL its money and not the Government.
& 25
56. ln view of the same, we would tend to agree with the contention of counsel for the applicant that the allegations in the impugned Major Penalty Charge Sheet dated 28.08.2021 [Annexure :A-1] would not amount to Service Misconduct, as the alleged events do not pertain to the Applicant's Government Service, nor was the employer a Government entity.
57. As far as Ground (e) is concerned, it was argued by the counsel for the applicant that non-supply of the First Stage Advice of the Central Vigilance Commission to the Applicant makes the entire exercise bad in law. ln Paragraph 4.33 of the Counter-Reply the Respondent admitted that they have taken the first stage advice of the Central Vigilance Commission. However, the first stage advice of the Central Vigilance Commission was not supplied to the Applicant.
58. Counsel for the applicant places reliance on the Judgment in the case of State Bank of lndia and Others v. D.C. Aggarwal and Another, AIR 1993 SC 1197: (1993) ILLJ244 SC: 1992 (2) SCALE 836:(1993) 1 SCC 13: 1992 Supp 1 SCR 956 : (1993) 1 UPLBEC 25 Annexure : A-43 , wherein the Hon'ble Supreme Court has set aside the Disciplinary Proceedings on the ground that the second Stage Advice of the Central Vigilance Commission has not been supplied to the delinquent. Pursuant to the Judgment in the case of State Bank of lndia v. D.C. Aggarwal nnexure : A-43 , the Central Vigilance Commission has issued
- 'j Letter dated 28.09.2000 Annexure : A44 , wherein it has been directed that even the First and also the Second Stage Advice of the Commission would have to be supplied to the Charged Officer.
59. With regard to the issue of the enforceability of the Executive lnstructions, counsel for the applicant places reliance on the judgments in Swaran Singh Chand v. Punjab State Electicity Board,2009 (7) SCALE 622; H.V. Nirmala v. Kamataka State Financial Corporation, (2008) 7 SCC 639; and Ramana Dayaram Shetty vs. lntemational Airport Authoity, AIR 1979SC 1629 :
1979 scR (3) 1014 : (1979) 3 scc 489, and it was argued that the instructions of the central Vigilance commission have to be scrupulously followed. lt was further contended that by violating the instructions provided in the matter and not supplying the First Stage Advice of the central Vigilance commission, the & 26 impugned Major Penalty Charge Sheet dated 28.08.2020 nnexure : A-1 has become bad in law.
60. There is considerable force in the submission of counsel for the applicant. However, we feel that this is a case where the prejudice test has to be applied. We are unable to grant relief to the Applicant on this ground as no submission has been made regarding prejudice caused to the Applicant-Charged Officer due to such non-supply. lt would have been a different matter had the Applicant set out a case of prejudice caused due to non-supply.
61 . Coming to Ground (f) advanced by the counsel for the Applicant, it was contended that Article 2 and Article 3 of the impugned Major Penalty Charge Sheet datdd 28.08.2020 [Annexure : A-1] were based on conjectures and surmises. Reliance in this regard was placed on the Orderdated 28.01.2016 in OA No. 940 of 2015 [Annexure-16 of Annexure :A-15], wherein Article-lll of the Charge Sheet was quashed and set aside on the ground that the same was based on conjectures and surmises. Learned counsel for the respondents submitted that these were implications from the conduct of the Applicant and cannot be dismissed as conjectures or surmises. lt was contended that it is well known that no Senior Advocate makes a factual assertion unless instructed in that behalf.
< 62. We notice that the Articles of Charge, though framed distinctly, have one common concern that the Applicant continued to act as the Official Liquidator in the absence of an Order of extension of his tenure and taken the steps believing that he was the Official Liquidator. This aspect has been dealt with before under the head "lnnocent Misconduct". We need to say no more.
63. The contention advanced by counsel for the applicant with regdrd to Ground (g) is that the Reply of the Applicant to the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A-1] was not considered by the Respondent before appointing the lnquiring Authority shows the pre-determined mind of the Respondent. sub-Rule (5Xa) of Rule 14 of the cenkal civil services (Classification, Control and Appeal) Rules, 1965 is quoted below all over again for ready reference , $F 27 "(5)(a) On receipt of the witten statement of defence, the disciplinary authority may itself inquire into such of the afticles of charge as are not admifted, or, if it considers rf necessary so to do, appoint, under sub-rule (2), an inquiing authority for the purpose, and where all the afticles ot charge have been admifted by the Govemment servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15."
64. Government of lndia, Ministry of Home Affairs, Office Memorandum No. 1101212ft9-Est.(A) dated 12.03.1981 and Office Memorandum No. 11012/8/82- Est.(A) dated 08.12.1982 is quoted below for ready reference:
'(4) Whether charges can be dropped at the stage of initial written statement of defence.-A question has been under consideration whether Rule 14 (5) (a) of the CCS (CCA) Rules, 1975, permits the dropping of charges by the Disciplinary Authoity after considering the wriften statement of defence submitted by the accused Govemment seNant under Rule 14 (4) ibid. The question has been considered in consultation with the Ministry of Law and the position is clarified as under:-
(a) The disciplinary authoity has the inherent power to review and modify the afticles of charge or drop some of the charges or all the charges after the receipt and examination of the witten statement of defence submifted by the accused Govemment servant under Rule 14 (4) of the CCS (CCA) Rules, 1965.
(b) The disciptinary authoity is not bound to appoint an lnquiry Officer for conducting an inquiry into the charges which are not admitted by the accused official but about which the disciplinary authoity is sallsfed on the basis of the wiften statement of defence that there is no fufiher cause to proceed with."
2. lt may, however, be noted that the exercise of powers to drop the chatges after the consideration of the wiften statement of defence by the accused Govemment seruant witt be subiect to the following conditions:-
3.o 28
(a) /n cases aising out of investigations by the Central Bureau of lnvestigation, the C.B.l. should be consulted before a decrsion ls taken to drop any of, or all, the charges on the basis of the wiften statement of defence submifted by the accused Govemment servant. Ihe reasons recorded by the disciplinary authority for dropping the charges should also be intimated to the Central Bureau of I nvestigation.
(b) The Central Vigilance Commission should be consulted where the disciplinary proceedings were initiated on the advice of the Commission and the intention to drop or modify any of, or all, the charges on the basis of the wiften statement of defence submitted by the accused Govemment seruant."
65. However, in the present case, the lnquiring Authority was appointed on 15.09.2021 [Annexure : 4-16] and this Order makes no mention of the Reply dated 05.10.2020 [Annexure : A-5] submitted by the Applicant. Counsel for the applicant has taken us to the Order dated 03.04.2017 of the Hon'ble Central Administrative Tribunal in OA No. 2907 of 2013 [Annexure-12 to Annexure : A-5] and the Order dated 18.09.2017 of the Hon'ble Central Administrative Tribunal in OA No.2999 of 2016 [Annexure-13 to Annexure:A-5], which was upheld JudgmenUOrder dated 20.08.2019 of the Hon'ble High Court of Delhi in W.P. (C) :A-
No. 8322 of 2019
- Union of lndia v. Tushar Ranjan Mohanty f 18I
66. Counsel for the respondents submitted that the contentions in the reply could be raised at the inquiry. We disagree. The safeguard at the stage of Rule 1a(5) is mandatory and cannot be done away with, even if the Applicant had another opportunity at the stage of the hearing in the inquiry. We are of the opinion that the precedents cited by counsel for the applicant are squarely applicable to the present case and are thus binding on us. For want of any proof on record that the Reply dated 05j02020 [Annexure : A-5] was ever considered by the Respondent, we find in favour of the Applicant as far as this ground is concerned.
& 29
67. The last ground urged by the counsel for the Applicant i.e. Ground (h) that the impugned Major Penalty Charge Sheet dated 28.08.2020 [Annexure : A- 1l is deemed to have been lapsed in view of the latest pronouncements of the Hon'ble Supreme Court and the Hon'ble High Court of Delhi.
68. The Hon'ble Supreme Court in the Case of Prem Nath Bati v. Registrar, High Court of Delhi & Another, (2015) 16 SCC 415 [Annexure : A-21] has held as follows :
"26. Time and aqain. this Court has emp hasized that it is the dutv of the emD lo VE r to ensure that the deoa rtmental inouirv initiated aqainst the delinouent emplove e is concluded within lhe shorfest posslb/e time bv takino prioity measures. ........
27. As a matter of expeience, we often notice that after completion of the inquiry, fhe lssue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues fhe issue in Court to ventilate his gievance, which again consurnes time for its final conclusion.
28. KegBlng lheselfacters in mjnd, we are of the considered opinion that everv emplover (whether State o DNVA te must make stnce re endeavour to conclude the departmental inquiry proceedinqs once initiated aqainst the delinquent em vee within a reasonable time bv qivinq pioritv to such proceedincts and as far as posslb/e it should be concluded within six months as an oute r limit. Where it is not possible for the emplover to conclude due to certain unavoidable causes arisinq in the proceedinqs within the time frame then efforts should be made to conclude within reasonabl v extended p eriod deoendina uDon the cause and the nature of in auiry but not more than a vear."
IEmphasis Supplied]
69. The Judgment of the Hon'ble Supreme Court in the Case of Prem Nath Bati v. Registrar, High Court of Delhi & Another, (2015) 16 SCC 415 [Annexure :
4-211 has been followed by the Hon'ble High Court in its Judgment dated 12.09.2019 in W.P. (C) No. 5653 of 2018 - union of lndia v. M R Diwan 3. 30 [Annexure : A-22). The Hon'bre High court has extensivery quoted the Judgment in Prem Nath Bali (supra) in Paragraph 1g of its Judgment and has held as follows:
"19. lt is therefore the clear mandate of the Supreme Court that a departmental enquiry must be concluded in a period of not more than one vear.
xxx xxx xxx
22. From the legal standpoint, the timeframe taid-down by the Supreme Couft in Prem Nath Bali (supra) is not for adherence onty by one department or the othec but by all entities and persons invotved in conducting the depaftmental enquiry proceedings, in this case the Ministry, the UPSC and the DoPT. The aggregate time for completion of deparlmental enquiry proceedings must not be more than one year from the date of commencement; and the date of commencement of proceedings, it is settled law, is the date when charge sheef is issued to a delinquent employee [cf. CMD, Coal lndia Ltd. & Ors. vs. Ananta Saha & Ors. (201 1) 5 SCC 142 para 271.
XXX XXX xxx
24. To be clear, we are not holdino that the departmental enquirv
-1 proceedinqs have lapsed because they were not completed within the two month peiod stipulated by the Tibunal but because thev are well bevond the maximum period of one vear la wn bv the Supreme Court in Prem Nath Bali (supra) aq . ln view of the law laid down by the Supreme Court in Prem Nath Bali (supra). if depaftme ntal enquirv proceedincts are not completed within the maximum pe riod stipulated bv the Supreme Court as aforesaid, such proceedings must be deemed to have lapsed. We would add that even if delav is attributa ble to the delinquent officer, the must be concluded. whether with or without the participation of the o fficer, vided adequate oooortunitv is qiven to the officer to pa fticipate." IEmphasis Supplied] $P 31
70. Learned counsel for the applicant has also brought to our notice Communication dated 18.01.2016 of the Central Vigilance Commission Annexure : A-23 and Communication dated 26.07.2018 of the Central Vigilance Commission nnexure:A-24 for Completion of lnquiry in in a time bound manner in pursuance of the Judgment in Prem Nath Bali [supra]. He has also brought to our notice the Judgment dated 08.05.2017 of the Principal Bench of this Tribunal in OA No. 288 of 2015 in the case of U. Das v. Union of lndia Annexure : A-25 , wherein, inter-alia, the Major Penalty Charge Sheet was quashed on the ground that the disciplinary proceedings was not finalized within the timelines prescribed by the Judgment in Prem Nalh Bali [supra]. Reliance has also been placed on the Judgment of the Hon'ble Supreme Court in Municipality of Bhiwandi and Nizampur v. M/s Kailash Sizing Works, AIR 1975 SC 529 Annexure:,4-26 and the Judgment of the Guwahati Bench of the Hon'ble Central Administrative Tribunal in S.M. Rehman v. The State of Assam, 1986(1) SLJ 162 Annexure : A-27 , wherein it has been held that Delay amounts to Malice.
71. Learned counsel for the respondents has opposed the contention on the ground that there was a pandemic situation and the same should be considered with regard to the delay in completion of the proceedings.
72. We have considered the rival contentions. We note that the Charge Sheet was issued on 28.08.2020 and despite the fact that the Applicant had lost his spouse, he filed a comprehensive Reply on 05.10.2020. However, the Respondent has taken nearly a year to appoint the lnquiring Authority, which was done only on '15.09.2021. Further, we have been told that the lnquiring Authority has not even held the inquiry even once. This situation is unacceptable by any standards. The Applicant retired more than five years back and is a senior citizen. We cannot let the Sword of Damocles hang over the head Applicant forever.
73. The upshot of the foregoing discussion is that the Applicant has established a case warranting our interference. Therefore, the OA is allowed and the Charge Sheet dated 28.08.2020 [Annexure : A-1], which otherwise is deemed & 32 to have lapsed by virtue of the judgments of Hon'ble Apex Court and Hon'ble High Court, is quashed and set aside. No order as to costs.
(AR IGAM) ).<-.-...-
(A) MEMBER (J)
I
a.