Central Administrative Tribunal - Delhi
Vinod Kumar vs Department Of Personnel And Training on 26 August, 2022
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O.A. No. 2229/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 2229/2022
New Delhi this the 26th day of August, 2022.
Hon'ble Mr. Justice Ranjit Vasantrao More, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Sh. Vinod Kumar,
S/o Late Ganesh Chandra Prasad,
Age 58 years,
R/o-Idgah Road, Keshopur Jamalpur,
Dist. Munger, Bihar.
Also at:
Flat No.1701, Tower 23,
Lotus Boulevard,
Sector-100, NOIDA
(PIN-201304). .... Applicant
(through Ms. Sriparna Chatterjee, Advocate)
Versus
1. Union of India
Through The Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and
Pension, North Block, New Delhi.
2. State of Orissa
Through Chief Secretary
Orissa Secretariat,
Bhubaneshwar.
3. The Secretary,
General Administration Department
Orissa Secretariat,
Bhubaneshwar.
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O.A. No. 2229/2022
4. Union Public Service Commission
Through Secretary
Dholpur House, Shahjahan Road,
New Delhi-110069. .... Respondents
(through Mr. Hanu Bhaskar, Advocate for R-1 and
Mr. R.V. Sinha with Ms. Chakshu Gupta, Advocate
for Respondent Nos. 2 to 4)
O R D E R (ORAL)
Mr. Mohd. Jamshed, Member (A) The applicant is an IAS Officer of 1989 batch of Orissa Cadre. He was dismissed from service vide impugned order dated 18.12.2021. It is submitted by the applicant that the dismissal order is based on the order of Special Judge, Vigilance, Bhubaneswar dated 10.08.2018 through which he was convicted to undergo rigorous imprisonment of three years and to pay a fine of Rs.25,000/- and in default thereof, to undergo rigorous imprisonment for two months more for the offences. It is the contention of the applicant that he was issued show cause notice dated 05.11.2019 by the respondents indicating as to why penalty of highest grade as prescribed u/r 6(1)(ix) r/w Rule 14(i) of the All India Service (D&A) Rules should not 3 O.A. No. 2229/2022 be imposed upon him. It is further averred that the applicant submitted his representation dated 15.11.2019 to the show cause notice indicating that no reasons have been given for arriving at such a harsh decision by the State Government and that he should be allowed to peruse all the files relating to the decision taken by the State Government. The respondents did not consider his representation and passed the order of harshest punishment of dismissal from service. It is contended that the applicant has, thus, been denied reasonable opportunity of defending his case and the action taken by the respondents is against the principles of natural justice. Aggrieved by this action on the part of the respondents, the applicant has filed the present O.A. seeking the following reliefs:-
"(a) pass as an order quashing and setting aside the impugned penalty order dated 06/12.2021 passed by the respondent No.1 and its notification thereof dated 03/02/2022 by the respondent No.2.
(b) pass an order quashing and setting aside the proceedings from the stage of issuance of show cause notice till the issuance of the penalty order and its notification thereof.4 O.A. No. 2229/2022
(c) pass an order calling for the records and holding the act of the respondents as unfair unreasonable and against the interest of justice.
(d) pass in order imposing exemplary cost on the respondents for manipulating with the statutory provisions of law, abusing the process of law and depriving the member of the services/applicant of a right as enshrined in the Constitution of India, besides, causing utmost mental agony for a continued period of 17 years.
(e) Pass any other order or orders that may deem fit in the circumstances of the case."
2. The applicant is primarily seeking quashing and setting aside of the penalty order dated 06.12.2021 and the notification dated 03.02.2022. The applicant is also seeking quashing and setting aside of the proceedings from the stage of issuance of show cause notice till the issuance of the penalty order. In support of his contentions, learned counsel for the applicant has placed reliance on the decision of Central Administrative Tribunal, Cuttack Bench in OA-802/2010 (Vinod Kumar Vs. UOI &Ors.) dated 26.04.2012, decisions of Hon'ble High Court of Gujarat at Ahmedabad in Special Civil Application No. 22629/2019 (RamsingbhaiSaburbhai Patel Vs. State of Gujarat) dated 5 O.A. No. 2229/2022 23.03.2022 and Kiritkumar D. Vyas Vs. State and Anr., (1982)2 GLR 79.
3. The respondents, who appeared on advance service, vehemently opposed the contention of the applicant and submitted that the applicant has been dismissed from service by following all the prescribed rules and procedures. He was charge sheeted for offences in Vigilance PS Case No. 56/2006 u/s 13(2) r/w 13(1)(d) of the PC Act, 1988 and u/s 467/468/471/420/120B of IPC by the GA (Vig.) Department, Government of Orissa for criminal conspiracy, forgery, cheating, show of undue official favour, criminal misconduct etc. It is further submitted that the Hon. Special Judge, Vigilance Bhubaneswar convicted the applicant and sentenced him to undergo rigorous imprisonment for three years.
4. Heard Ms. Sriparna Chatterjee, learned counsel for the applicant and Mr. Hanu Bhaskar, learned counsel for respondent No.1, Mr. R.V. Sinha, learned counsel for respondent No. 4 at the admission stage itself, and perused the documents placed on file.
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5. The applicant is aggrieved by the impugned order dated 18.12.2021 whereby the penalty of dismissal from service has been imposed upon him. The main argument of the learned counsel for the applicant is that the applicant has not been provided reasonable opportunity to put forward his defence and thus he has been deprived of his rights under the principles of natural justice. It was argued that the show cause notice issued to him indicates that the proposed punishment is the harshest but it does not specify as to why such extreme punishment is being proposed against him, thereby making the show cause notice invalid. It is also submitted that the applicant has made a representation to this show cause notice and asked for certain documents and perusal of the files, which was not considered by the respondents and the impugned order has been passed. Thus, the applicant has been denied reasonable opportunity for making further representation and the impugned order is not a reasoned and speaking one.
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6. Learned counsels for the respondents have opposed the arguments advanced by the learned counsel for the applicant placing reliance upon the following judgments:-
a. State Bank of Patiala &Ors. Vs. S.K. Sharma, (1996) 3 SCC 364.
b. Union of India Vs. V.K. Bhaskar, (1997) 11 SCC
383. c. Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, (1995) 3 SCC 377.
It is submitted by the respondents' counsels that charges for grave offences were levelled against the applicant under the Prevention of Corruption Act and various other sections involving criminal conspiracy, forgery and cheating etc., which also amount to moral turpitude and dereliction of duty and, therefore, the respondents have considered these aspects and imposed upon him the penalty of dismissal from service.
7. It is an undisputed fact that the applicant was charge sheeted for offences in Vigilance PS Case No. 56/2006 u/s 13(2) r/w 13(1)(d) of the PC Act, 1988 and u/s 467/468/471/420/120B of IPC by the GA (Vig.) Department 8 O.A. No. 2229/2022 of Government of Orisha for criminal conspiracy, forgery, cheating, show of undue official favour, criminal misconduct and allowing pecuniary advantage to the builder, Shri Bijay Kumar Biswal, MD of M/s Biswal Construction Pvt. Ltd. by sanctioning and disbursing loan of Rs.1,68,91,606 in the guise of 27 individual loans meant for the rural poor, in an arbitrary manner without following the guidelines. The Court of Special Judge, Vigilance, Bhubaneswar on 24.09.2018 sentenced the applicant to undergo rigorous imprisonment of three years and to pay a fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for six months more for the offences u/s 13(2) of the PC Act, 1988; to undergo RI for three years and to pay a fine of Rs.50,000/- and in default thereof to undergo RI for six months more for the offences u/s 420 IPC; to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for six months more for the offence u/s 467 IPC; to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for six months 9 O.A. No. 2229/2022 more for the offences u/s 468 IPC; to undergo rigorous imprisonment for six months more for the offences u/s 468 IPC; to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for six months more for the offences u/s 471 IPC; and to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for six months more for the offences u/s 120-B IPC. All the sentences were to run concurrently. In view of the aforesaid conviction, the respondents, in exercise of the powers conferred u/r 14 of the All India Services (Discipline & Appeal) Rules, 1969, decided to impose the penalty of highest grade i.e. dismissal from service on the applicant and he was accordingly called upon to show cause within 15 days of receipt of this notice as to why such a proposed penalty should not be imposed upon him. The entire premise of the argument of the learned counsel for the applicant revolves around the clarity in the show cause notice and also the response given by the applicant thereon. We have perused the response given 10 O.A. No. 2229/2022 by the applicant dated 15.11.2019 to the show cause notice, which acknowledges the contents of the show cause notice and his submission that no special reason or exceptional circumstances had been indicated by the respondents to arrive at such a proposed harsh decision. He further sought permission to peruse all files relating to the decision and to take copies of the relevant note sheets and the documents based upon which such a decision was taken. The respondents considered his reply dated 15.11.2019 and after due consideration rejected the same finding the same being devoid of merit, and accordingly referred the matter to DoP&T proposing penalty of dismissal upon the applicant as prescribed under Rule- 6(1)(ix)r/w Rule 14(i) of the All India Services (D&A) Rules, 1969. Subsequently, respondent No.1 referred the proposal of respondent No.2 proposing applicant's dismissal from service to the UPSC for seeking its advice. Respondent No.4 (UPSC) furnished their advice dated 29.12.2020 concluding that in view of the grave corruption charges on which the applicant has been convicted, the 11 O.A. No. 2229/2022 ends of justice would be met in case penalty of dismissal from service is imposed on the applicant.
8. It is also stated in the impugned order that the UPSC advice was given to the applicant vide letter dated 25.01.2021 asking him to make representation, if any. The applicant vide letter dated 26.02.2021 acknowledged the receipt of DoP&T letter dated 08.01.2021 along with the advice of the UPSC and submitted that his representation may kindly be considered favourably. The respondents, on consideration of all the facts including the UPSC advice, comments of the State Government, representation of the applicant and the status of the appeal filed by the applicant in Hon'ble High Court of Orissa, passed the Presidential order dated 18.12.2021dismissisng the applicant from service.
9. It is also observed that the applicant has challenged the conviction order in the Hon'ble High Court of Orissa and the Hon'ble High Court stayed the sentence in his favour. However, since the conviction has not been suspended as per provision of 389 of Cr.PC, there is no 12 O.A. No. 2229/2022 legal impediment on the State Government to proceed further in the matter for imposing punishment on the applicant.
10. The applicant is in effect seeking review of the conviction order of the Special Judge, Vigilance, Bhubaneswar by which he has been convicted. It is reiterated here that the Disciplinary Authority/Courts are not the Appellate Court for the Trial Court, which could be an option in departmental proceedings. As far as the procedures for imposition of penalty as a result of the conviction is concerned, we do not find any infirmity or illegality in the impugned order passed by the respondents. It is also evident that the applicant has been provided reasonable opportunities and all actions taken by the respondents are in accordance with law. We have thus considered all aspects and heard the arguments of the learned counsel for the parties at the admission stage itself.
11. The claim of the applicant seeking quashing and setting aside the impugned order is in no way tenable. 13 O.A. No. 2229/2022 Imposition of penalty has been done in accordance with law. We are, therefore, of the view that the present O.A. is devoid of merit and the same is accordingly dismissed. There shall be no order as to costs.
(Mohd. Jamshed) (Justice Ranjit Vasantrao More) Member (A) Chairman /vinita/