Central Administrative Tribunal - Delhi
Ajit Kumar Singh vs Union Of India Through The Secretary on 3 April, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 4184/2012 New Delhi this the 3rd day of April, 2013 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. Birendra Kumar Sinha, Member (A) Ajit Kumar Singh, a/a/45 years Son of Shri Gorakh Nath Singh, Presently posted as Addl. CIT, New Delhi Resident of 15/5, E.P.Nagar, New Delhi-110008 Applicant (Applicant present in person) VERSUS 1. Union of India through the Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001 2. The Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001 Respondents (By Advocate Shri R.N. Singh ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
The short question arises to be determined in the present Original Application is the effect of stay of the order dated 20.04.2010 passed by this Tribunal in OA No. 1000/2009 on the charge sheet dated 21.10.2008. As has been alluded by the applicant in his Original Application the charge sheet issued to him under Rule 14 of the CCS (CCA) Rules, 1965 on 21.10.2008 was quashed by this Tribunal vide its order dated 20.04.2010, thus the vigilance clearance regarding his promotion along with Indian Revenue Service officers of 1991 batch to the posts of Commissioner of Income Tax could not have been withheld. The applicant who appeared in person contended that the interim order dated 25.05.2012 passed in W.P (C) No.3209/2012 would not revive the charge OA 4184/2012 memo quashed by this Tribunal. He also relied upon the following judicial precedents:
(1) Shree Chamundi Mopeds Ltd Vs. Church or South India Trust Assn.CSI Cinodsecretariat, MADR ( AIR 1992 1439 SC) (2) State of U.P. & Ors Vs. Hirendra Pal Singh ( 2011 5 SSC 305) (3) Kartar Singh and J.C.Verma Vs. Delhi Development Authority ( Order of PB,CAT in TA No.204/2007 dated 22.01.2008) (4) K.S.Rajendra Kumar and Another Vs. Union of India ( Order of CAT, Ernakulam Bench in OA No.134/2012 dated 25.09.2012)
2. In the counter reply filed on behalf of respondents, it is contended that the vigilance clearance in the case of applicant was proposed to be withheld as the charge sheet dated 21.10.2008 under Rule 14 of CCS (CCA) Rules, 1965 is pending against him. Para 1 of the reply reads as under:-
para 1. That the contents of the corresponding para, being matter of record, need no reply. It is submitted that the vigilance clearance in the case of applicant herein was proposed to be withheld as the charge sheet dated 21.10.2008 under Rule 14 of CCS (CCA) Rules, 1965 was quashed by this Honble Tribunal vide order/judgment dated 20.04.2009 in OA No. 1000/2009, however, the Honble High Court of Delhi has stayed the operation of the order/judgment dated 20.04.2009 of this Honble Tribunal vide order dated 25.5.2012 of the Honble Delhi High Court in WP (C) No.3209/2012 and CM No.6865/2012.
3. We heard the applicant in person and counsel for respondents. The applicant is a 1991 batch officer of IRS and is presently posted as Additional Commissioner of Income Tax, New Delhi. It is not in dispute that members of IRS of 1991 batch are being considered for their promotion to the post of Commissioner. Regarding promotion of the applicant to the said post, respondents proposed to withhold vigilance clearance on account of pendency of charge sheet dated 21.10.2008. It is admitted by the applicant that in view of Office Memo No.11012/11/2007-Estt. (A) dated 14.12.2007 (Annexure A-6), vigilance OA 4184/2012 clearance to members of the Central Civil Services/Central Civil posts can be withheld when a charge sheet has been issued against the officer in a disciplinary proceeding and the proceeding is pending. Clause C of said OM reads as under:-
c. Vigilance clearance shall not be withheld unless (i) the officer is under suspension (ii) a chargesheet has been issued against the officer in a disciplinary proceedings and the proceeding is pending (iii) orders for instituting disciplinary proceeding against the officer have been issued by the Disciplinary Authority provided that the chargesheet is served within three months from the date of passing such order (iv) chargesheet has been filed n a Court by the Investigating Agency in a criminal case and the case is pending (v) orders for instituting a criminal case against the officer have been issued by the Disciplinary Authority provided that the chargesheet is served within three months from the date of initiating proceedings (vi) sanction for investigation or prosecution has been granted by he Competent Authority in a case under the PC Act or any other criminal matter (vii) an FIR has been filed or a case registered by the concerned Departmental against the officer provided that the charge sheet is served within three months from the date of filing /registering the FIR/case and (viii) The officer is involved in a trap/raid case on charges of corruption and investigation is pending. Nevertheless, he contended that in view of the law declared by Honble Supreme Court in M/s Shree Chamundi Mopeds Ltd. Vs. Church or South India Trust Assn CSI Cinodsecretariat, MADR (1992 SCR (2) 999), the interim order passed by Honble Delhi High Court cannot have the effect of reviving the charge sheet against him. According to him, a distinction has to be made between quashing of an order and stay of its operation. According to him, quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed, but the stay of operation of an order does not, however, lead to such a result and only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it would not mean that the order has been wiped out from the existence. Para 10 of the judgment reads as under:-
10. In the instant case the proceedings before the Board under Ss. 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the OA 4184/2012 facts and material before it, found that the appellant company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under S.25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act was pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 199 1. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21,991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant company against the order of the learned single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant company. The said appeal, therefore, fails and is liable to be dismissed. OA 4184/2012 Referring to the decision in State of U.P.& Ors Vs. Hirendra Pal Singh etc ( supra), he reiterated the submission noted hereinabove. Paras 20 and 21 of the judgment read as under:-
20. In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, AIR 1992 SC 1439, this Court explained the distinction between quashing of an order and staying the operation of the order observing as under:
"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending."
21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance Para 15 of the order of this Tribunal passed in TA No. 204/2007 (Kartar Singh and Ors Vs. DDA), relied upon by the applicant reads as under:-
15. The moot question that would next arise is, as to what would be the effect, if conviction is stayed. Before going on the question of effect of stay of the conviction, it would be necessary to know the difference between stay and quashing of the order. This need not detain us for long because it has already been explained by Honble Supreme Court in the case of M/s Shree Chamundi Mopeds Ltd. Vs. Church of South Indian Trust Assn. CSI Cinod Secretariat, Madras, reported at JT 1992 (3) SC page 98 wherein it was observed as under:-OA 4184/2012
While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The say of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.
From the above judgment, it is clear that even if operation of an order is stayed, it would not mean that the said order has been wiped out from existence. In other words, the order would still be in existence, but would not be operated upon for the time till it is stayed. There is no dispute about the legal position that the stay of operation of an order does not lead to its extinction. It would only mean that the order which has been stayed would not be operative from the date of passing of the stay order. In the present case, in terms of interim order dated 25.05.2012 passed by Honble Delhi High Court in WP ( C) No. 3209/2012 and CM No. 6865/2012, the order dated 20.04.2010 passed by this Tribunal in OA no. 1000/2009 would not be wiped out from the existence, but its operation would remain stayed. The ramification of the stay of operation of an order of the Tribunal could be specified by Honble Supreme Court in V.P.Sheth Vs. State of MP and Others ( 2004) 13 SCC 767). In the said case, having taken note of judgment of Honble Supreme Court in M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras ( AIR 1992 SC 1439), relied upon by applicant, Honble Supreme Court viewed that the effect of stay is that the order stayed is non operative and once the order of CAT was not operative, the order of compulsory retirement remained in force. The issue involved in the present OA is squarely covered by the said judgment, which is usefully extracted hereinbelow:-OA 4184/2012
1. Heard learned counsel for the parties.
2. Delay condoned.
3. Leave granted.
4. Briefly stated the facts are:
By an order dated 4-1-1989, the appellant was compulsorily retired with effect from 10-1-1989. The appellant challenged the compulsory retirement before the Central Administrative Tribunal (CAT). CAT set aside the order of compulsory retirement. The respondents filed a special leave petition before this Court. This Court passed an interim order staying the order of CAT. Ultimately by an order dated 11-1-1994(Union of India v. V.P. Seth, 1994 SCC (L&S) 1052 : (1994) 27 ATC 851) this Court set aside the order of CAT.
5. During the operation of interim stay, prosecution was launched against the appellant for offences under Section 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the Penal Code.
6. The appellant filed a petition before the Special Judge claiming that in the absence of sanction, the prosecution could not be proceeded with. The application was dismissed by the Special Judge. Revision filed by him has been dismissed by the High Court. Hence this appeal.
7. Before us, it has been urged that in the absence of sanction under Section 19 of the Prevention of Corruption Act, 1988, the prosecution could not proceed. It is submitted that on the day prosecution was launched, the order of compulsory retirement had been set aside by CAT. It is submitted that even though this Court had granted an interim stay, the order of CAT had not been quashed. It is submitted that the effect was that the appellant continued to be in service. In support of this submission, reliance is placed upon the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn.((1992) 3 SCC 1) wherein it has been held that the effect of an interim stay is that the original order does not get quashed but that order would not be operative and may get restored.
8. We are unable to accept this submission. As has been held in Chamundi Mopeds case.((1992) 3 SCC 1) the effect of stay is that the order is not operative. As the order of CAT is not operative, the order of compulsory retirement remains in force. Of course if the appeal was dismissed, the order of CAT would have got restored. But at the time prosecution was launched, it was the order of compulsory retirement which was effective. Therefore no sanction was required under Section 19 of the Prevention of Corruption Act, 1988. In any event this Court finally quashed the order of CAT. This Court OA 4184/2012 held that the appellant had been compulsorily retired with effect from 10-1-1989. As the appellant had retired with effect from 10-1-1989, on the day prosecution was launched, no sanction was required.
9. It is next urged that sanction under Section 197 of the Criminal Procedure Code would be required. It is pointed out to us that the learned Judge has held, in the impugned judgment, that sanction under Section 197 of the Criminal Procedure Code is not required. In our view the question whether sanction under Section 197 of the Criminal Procedure Code is required or not depends upon the facts and circumstances of the case. We, therefore, set aside that portion of the impugned judgment which holds that no sanction is required under Section 197 of the Criminal Procedure Code. We leave this question open to be urged after evidence is recorded. The Special Judge shall decide this question uninfluenced by any observation made by the High Court. The appeal is partly allowed to the above extent. The appeal stands disposed of accordingly.
In terms of the view taken by Honble Supreme Court as above, with stay of operation of the order of this Tribunal in OA No. 1000/2009 passed on 20.04.2010, the charge sheet dated 21.08.2010 came into force with all its ramifications.
4. In Ravikant S.Patil Vs. Sarvabhouma S.Bagali ( JT 2006 (10)SC 578), Honble Supreme Court viewed that an order of stay does not render the conviction non-existent, but makes it non-operative. Paras 15 and 18 of the judgment read as under:-
15. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
xxx xxx OA 4184/2012
18. In view of the above, the decision of the High Court that the appellant was disqualified as on the date of nomination and that his nomination was improperly accepted cannot be sustained. Resultantly, we allow the civil appeal and set aside the impugned judgment of the High Court and dismiss the election petition. Since the election petitioner Respondent 1 has not appeared in this appeal and we were assisted by learned counsel appearing for another contestant in the same election, we leave the parties to bear their own costs.
5. In Mulraj Vs. Murti Raghunathji Mahaaraj ( AIR 1967 SC 1386), it has been held that an order of stay takes effect immediately it is passed and takes away the very jurisdiction of the court executing the decree as there is nothing left to execute thereafter. Paras 4 to 8 of the order read as under:-
4. There has been difference of opinion between the High Courts on the question of the effect of a stay order, particularly with reference to execution proceedings. The High Courts of Calcutta, Patna and Punjab have held that in such a case the stay order takes effect from the moment it is passed and the fact that the court executing the decree has no knowledge of it makes no difference and all proceedings taken in execution, after the stay order has been passed are without jurisdiction. On the other hand, the High Courts of Madras and Kerala have taken the view that the executing court does not lose its jurisdiction from the moment the stay order is passed and that the order being in the nature of a prohibitory order, the court carrying on execution does not lose its jurisdiction to do so till the order comes to its knowledge and the proceedings taken in between are not a nullity. The Allahabad High Court seems to have taken an intermediate view and has held that where rights of third parties like a stranger auction-purchaser have intervened the fact that the executing court had no knowledge would protect third parties.
5. The earliest case on the point is Bessesswari Chowdhurany v. Horro Sundar Mozumdar, (1896-97) 1 Cal WN 226. In that case a Divisions Bench of the Calcutta High Court held that -
"an order staying execution of a decree against which an appeal is pending is in the nature of a prohibitory order, and as such would only take effect when communicated. If a property is sold before such an order is communicated to the court holding the sale, such sale is not void and cannot be treated as a nullity."
In Hukum Chand Boid v. Kamalanand Singh,. (1906) ILR 33 Cal 927 another Division Bench of the same High Court dissented from the view taken in Bessesswari Chowdhurany's case, (1896-97) 1 Cal WN 226 and held that an order of stay takes effect from the OA 4184/2012 moment it is passed and the knowledge of the court to which it is addressed is immaterial and from the moment the order is passed the court to which the application is made for execution has no authority to execute it. It is these two cases of the Calcutta High Court which are the basis of the decisions of other High Courts. Some High Courts, as already indicated, have accepted the view in Bessesswari Chowdhurany's case, (1896-97) 1 Cal WN 226 while other High Courts have followed the view taken in Hukum Chand Boid's case, (1906) ILR 33 Cal 927.
6. Before we consider the question raised before us, we may indicate the leading cases on the two sides briefly . The Patna High Court in Liakat Mian v. Padampat Singhania., AIR 1951 Pat 130 (SB) and the Punjab High Court in Din Dayal Ram v. Union of India AIR 1954 Punj 46 follow Hukum Chand Boid's case, (1906) ILR .38 Cal 927. The Madras High Court in K. Venkatachalpati Rao v. M. Kameshwaramma, ILR 41 Mad 151: (AIR 1918 Mad 391) (FB) follows Bessesswari Chowdhurany's case. 1896-97) 1 Cal WN 226. The Kerala High Court in Cheeramparambilalikutty v. Thalavanaparambilalikutty, ILR (1960) Kerala 528 also follows Bessesswari Chowdhurany's case, (1896-97) 1 Cal WN 226. It is unnecessary to refer to other cases of these courts which were cited before us for they follow the view taken in these leading cases.
7. The Allahabad High Court in Parsotam Saran v. Barhma Nand, AIR 1927 All 401 (FB) as already indicated, took an intermediate view and held that where a third party's interest intervened, the stay order does not nullify a sale in favour of a third party. But where only the parties to the execution proceedings were concerned it followed the view taken in Hukum Chand Boid's case, (1906) ILR 33 Cal 927.
8. We are of opinion that the view taken in Bessesswari Chowdhurany's case (1896-97) 1 Cal WN 226 is the correct one. An order of stay in an execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the court. All that it does is to prohibit the court from proceeding with the execution further, and the court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing court which continues to have jurisdiction to stay its hand till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order. The OA 4184/2012 executing court may have knowledge of the order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing court has come to know of the order either by communication from the court passing the stay order or by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the Court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts legally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect. Take the case where a stay order has been passed but it is never brought to the notice of the court, and the court carries on proceedings in ignorance thereof. It can hardly be said that the court has lost jurisdiction because of some order of which it has no knowledge. This to our mind clearly follows from the words of O. XLI, R. 5 of the Code of Civil Procedure which clearly lays down that mere filing of the appeal does not operate as stay of proceeding in execution, but the appellate court has the power to stay the execution. Obviously when the appellate court orders stay of execution the order can have effect only when, it is made known to the executing court. We cannot agree that an order staying execution is similar to an order allowing an appeal and quashing execution proceedings. In the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute. But where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force. A stay is an act of temporarily stopping a proceeding through the order of court. There are two main types of stays; a stay of execution/order and a stay of proceeding. A stay of execution postpones the enforcement of a judgment against litigant who has lost a case, called the Judgment OA 4184/2012 Debtor and a stay of proceeding is the stoppage of an entire case or a specific proceeding within a case. This type of stay is issued to postpone a case until a party complies with the court order or procedure. In the second type of cases, the effect of stay is that the order stayed is not operative. Non operation of the order stayed would result in revival of the right and consequences quashed by it. Thus, it is held that with stay of operation of order of the Tribunal dated 20.04.2010 passed in OA no. 1000/2009, the charge sheet dated 21.10.2008 issued to applicant under Rule 14 of the CCS (CCA) Rules 1965 came into force with all its ramifications and in terms of the provisions of OM No.22034/4/2012- Estt. (D) dated 2.11.2012 (Annexure A-7) read with OM No.11012/11/2007-Estt. (A) dated 14.12.2007 (Annexure A-6), respondents were justified in proposing to decline vigilance clearance to applicant regarding his promotion to the post of Commissioner.
OA is found devoid of merit and is accordingly dismissed. No costs.
(Birendra Kumar Sinha ) ( A.K.Bhardwaj) Member (A) Member (J) sks