Central Administrative Tribunal - Delhi
Sh. Geeta Ram Bhardwaj vs Union Of India Through on 16 March, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1476/2010
Reserved on: 12.03.2012
Decided on:16.03.2012
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Geeta Ram Bhardwaj,
S/o late Sh. M.R. Bhardwaj,
R/o 56, Vasant Gaon,
New Delhi. .. Applicant
(through Sh. S.S. Tiwari, Advocate)
Versus
1. Union of India through
Secretary,
Department of Personnel & Training,
M/o Personnel & Public Grievance & Pension,
North Block, New Delhi.
2. The Director,
Central Bureau of Investigation,
CGO Complex, Lodhi Road,
New Delhi.
3. Joint Director,
EOW-II, CBI,
CGO Complex,
Lodhi Road, New Delhi.
4. Dy. Inspector General of Police,
EOW-III, CBI,
CGO Complex, Lodhi Road,
New Delhi. . Respondents
(through Sh. S.M. Arif, Advocate)
O R D E R
Dr. A. K. Mishra, Member (A) The applicant has challenged the order of dismissal dated 10.08.2007 of the disciplinary authority (DA), the order of rejection dated 16.10.2007 of the appellate authority (AA) and the second order of rejection dated 12.05.2009 of the reviewing authority and has prayed for quashing of the impugned orders and for a direction to the respondent authority to reinstate him in service with all consequential benefits.
2. The applicant was absorbed in the respondent organization in 1985. He was promoted as Head Constable in 1993 and thereafter as ASI in 2001. He was charge-sheeted on 13.08.2003 on the allegation that during the period from 22.10.1991 to 14.05.1992 when he was acting as Constable and Assistant to Malkhana Incharge in SIC-I Branch of CBI, New Delhi he had made interpolation and alteration in the records. Although he had received 21,800/- as seized amount from an accused person, later he handed over a sum of Rs. 2180/- only to one V.K.Sareen, Head Clerk (Crime) for safe custody in bank locker and in this process caused a loss of Rs.19,600/- to the Department. An FIR was also lodged against the applicant on 17.06.2002 and the applicant was also placed under suspension on 26.09.2002. The criminal inquiry against the applicant was dropped and a final report was filed on 19.12.2003. As regards department proceedings, an inquiry was conducted as the applicant denied the charges. The inquiry officer proved the charges brought against the applicant. The applicant filed a representation on 29.01.2007. After considering the submission of the applicant, the DA imposed the penalty of dismissal vide his order dated 10.08.2007. The AA rejected the appeal on 16.10.2007 against which the applicant filed a review petition before the Ministry which again rejected the same in its order dated 12.05.2009; hence the O.A.
3. The learned counsel for the applicant canvassed the following grounds in support of the prayer made in the OA:
(i) The incident related to the period from 22.10.1991 to 14.05.1992 but the charge-sheet was issued only on 13.08.2003 after a delay of more than 11 years. There is no satisfactory explanation for this abnormal delay. Therefore, the charge-sheet is liable to be quashed on the ground of abnormal delay. Learned counsel drew our attention to the statement at page 48 of OA to the effect that the accused person after his release from jail had moved an application on 5.11.1997 for return of his property to contend that the respondents knew about this matter even as early as 5.11.1997. Therefore, their plea that they came to know about the alleged interpolation and misappropriation only after an inquiry was made in 2002 when the accused Selvaraj applied for return of his property is not correct.
(ii) It was the contention of the learned counsel that the charge itself is very vague in that it does not indicate any specific date when they alleged alteration was made in the Malkhana documents. Such a charge, bereft of material details, is liable to be quashed as vague and unsustainable.
(iii) The applicant was on medical leave during some period from 22.10.1991 to 14.05.1992. Some other officers were in custody of the Register of Malkhana during his absence. He had pointedly asked for the details of his leave during the aforesaid period, which has not been given to him. Therefore, it is contended that the alleged alterations and misappropriation could have been the handi-work of someone else; this possibility not being ruled out the applicant should have been given the benefit of doubt. Or in other words, the allegations could not have been proved against the applicant.
(iv) Some of the documents, which were relied upon, were photocopies of the original documents. He placed reliance on the judgment of this Tribunal (Principal Bench) in OA 303/1997 ATJ 2004 (3) 48 in which a view was taken that the original file on which the alleged forgery had taken place had not been supplied to the applicant therein. Further, it was held in the case that the impugned revising order was based on suspicion and surmises. It was also held that non-production of EFT passenger file had caused sufficient prejudice to the applicant in that he could not defend himself properly. The learned counsel for applicant seeks relief on this ground also.
(v) He submits that the handwriting expert had not conclusively confirmed the authorship of the applicant on the interpolations. As such, the findings are based on presumption only. He relied on the ruling of the Supreme Court in Roop Singh Negi vs. Punjab National Bank and Others (2009) 2 SCC 570 to contend that no finding of guilt can be returned in the absence of evidence proving the charge, howsoever strong the suspicion might be against the delinquent official.
4. Learned counsel for the respondents submits that the orders of the DA as well as the reviewing authority are self-explanatory. The inquiry officer has given the finding of guilt on the basis of proper analysis of the evidence brought on record. The DA has also given a detailed speaking order. The applicant has not challenged the procedure adopted in the inquiry held against him. He has questioned the appreciation of evidence, which is not included in the scope of judicial review.
4.1 Learned counsel takes us again page 48 of the OA on which the applicants counsel had relied in questioning the explanation of the respondents about delay in starting the disciplinary proceedings against the applicant. Relevant portion of para-3 reads as under:
..After release from jail, he moved an application on 5/11/1997 for return of his property but did not pursue it as a result, his application was dismissed in 1998. Again vide application dated 23/3/2002, Shri N. Selvaraj applied for return of the property of Rs. 21,000/- instead of Rs.2,800/- because of anomaly. Sh. S.R. Thakur, Inspector and Pairvi Officer of this case examined the Malkhana Records with the help of present Malkhana Officer Shri Roshan Lal and misappropriation of Rs.19,620/- came to light. On perusal of the Malkhana Records, it has been unveiled that as per Seizure Memo dated 22/10/1991 prepared by the Investigating Officer, it has been confirmed that he had seized 218 Indian Currency Notes of Rs.100/- denomination, total amounting to Rs. 21,800/- vide an entry at Sl. No. 33 of the above seizure memo. This particular entry of deposit of 218 entered at Sl.No. 421/91 on 25/10/1991 in the Seized Property Register maintained in the Malkhana and entry was made by Shri Geeta Ram Bhardwaj and the said entry has been altered to read as 218 notes of Rs.10/- in denomination totaling to Rs. 2180/- in place of deposit of 218 notes of Rs.100/- denomination. 4.2. It was explained that the accused Selvaraj had not pursued the original application of the accused Selvaraj for return of his seized property. It was only on 23.3.2002 that he sincerely followed up the matter. As a result of which, the alleged misappropriation of a major part of the seized amount came to light and accordingly disciplinary proceeding/criminal action was taken against the applicant. Therefore, there was satisfactory explanation for the delay in initiating disciplinary proceedings against the applicant. In any case, the proceedings have been concluded and appropriate penalty has been imposed on the applicant. This is not the stage to quash the charge-sheet issued against the applicant.
4.3 The argument about not mentioning the specific date in the charge-sheet when the alleged alteration took place, according to the learned counsel for the respondents, is a specious one. When the irregularity came to light in the year 2002, there was no way how specific date could have been given when the alleged alteration took place. It is enough if the respondents have proved that these alterations were made by the applicant during the period he was In- charge of Malkhana records.
4.4 For the same reason, it is contended that the specific allegation against the applicant that he had committed the irregularity has been proved. Therefore, it is irrelevant if he was on leave for a few days or not.
4.5 As regards the opinion of the handwriting expert is concerned, it is submitted that the expert had established that the entries in Malkhana Register were in the handwriting of the applicant. It is only the interpolation in the de-nomination of the currency that he could not ascribe any authorship.
4.6 As regards photocopy, it is mentioned that the original had been filed in the Criminal Court. Therefore, the photocopy was issued and it was properly authenticated.
5. We heard the rival contentions and went through the records.
6. It is seen that the allegation of alteration of Malkhana records, seizure memo and the resultant misappropriation of a large amount came to the effective notice of the respondents only in the year 2002 when the accused person Selvaraj insisted on the return of the seized amount. Till then, this allegation had not engaged the attention of the respondent authority. There is no dispute that the seized amount of Rs. 21800/- was received by the applicant and he had passed on only Rs.2180/- to the Clerk In-charge for safe custody. He was In-charge of the records till he handed them over in the year 1992. Since there was interpolation in the records and the seized amount was believed to be Rs.2180/- there was no suspicion of foul play until the original accused claimed for the return of the actual seized amount of Rs.21800/-. Therefore, we do not find that this is a case vitiated by long delay in initiating the charge-sheet.
6.1 As regards appreciation of evidence, the reviewing authority has dealt with all the grounds, which were put forward by the applicant in the review petition. We would do well to give an extract of the observations of the reviewing authority:-
..Whereas Shri Geeta Ram Bhardwaj, during the course of Enquiry, had sought production of six documents for his defence. The Enquiry Officer, after assessing the relevancy, had allowed production of four documents and did not allow remaining two documents, as they were not found relevant to the enquiry. Thus the contention of the applicant that defence documents were not applied to him is not found to be correct (Para 5(vii) & 5(xviii) of the Review Petition).
Whereas Shri Suresh Chand, the then UDC (PW-4 had identified the writings of applicant on the seized property register and Malkhana Inventory Register on the corresponding date. Regarding the issue of interpolation/overwriting, the report of Shri V.K. Khanna, Principal Scientific Officer, CFSL, New Delhi had clearly established that the entries at Sl.No. 46 in the Malkhana Inventory Register and entries at Sl.No. 402-428 were in the handwriting of Shri Geeta Ram Bhardwaj. Shri Khanna has however, failed to express any opinion regarding authorship of change of denomination of the currency that was deposited and the total amount of money that was deposited in the Malkhana and subsequently handed over to Shri V.K. Sarin, the then Head Clerk.
And whereas it was conclusively proved that Shri Geeta Ram Bhardwaj had personally received Rs.21,800/- from Inspector Y.S. Rathi on 22.10.91 but had deposited only rs.2,180/- with V.K. Sarin, Head Clerk (PW-V) on 14.5.92. As Shri Bhardwaj was the person who had received the said amount and deposited the deficient amount with Shri V.K. Sarin, the then Head Clerk, the allegation that he had misappropriated the said amount by manipulating/altering the records, has been proved conclusively. In view of these facts the contention that there was no evidence against Shri Bhardwaj is not found correct (Para 5(viii) to 5(x) of the Review Petition).
Whereas the contention is that the order of the disciplinary authority was illegal, arbitrary and discriminatory. The Enquiry was conducted in the prescribed manner by the Enquiry Officer. The charged official was given opportunity to submit a written defence. He was also provided a Defence Assistant who had submitted a written brief on his behalf at the end of the enquiry. All the prosecution witnesses were examined in the presence of charged official and his defence assistant. An opportunity to produce defence witnesses was also given to him. Thereafter the report of the Enquiry Office was examined by the disciplinary authority that had served a copy of the Enquiry Report along with statement of findings on the charged official. In response to that the charged official submitted his representation dated 29.1.07. The Disciplinary Authority thereafter carefully scrutinized the enquiry report, relevant records etc. and concluded that the charges against him were fully proved. Hence, the contention that the order of the D.A. was illegal, arbitrary and discriminatory is not correct (Para 5(xi) to 5(xiii) of the Review Petition.
Whereas the prosecution has rightly relied upon the statement of PW-10 Shri Y.S. Rathi because he was the Investigating Officer who had seized the cash in question in the presence of independent witnesses and had handed over the same to Shri Bhardwaj. Moreover Shri Bhardwaj, in token of having received the cash, had returned a copy of the seizure-memo mentioning the Malkhana number. He had also made corresponding entry in the Malkhana Register. The evidence of PW-10 was therefore, direct and most reliable (Para 5(xiv) of the Review Petition).
Whereas the facts mentioned in paragraph 5(xvi) are matter of record.
Whereas it has been alleged that original seizure memo dated 22.10.91 was not available on record and hence its photocopy was relied upon. The original of the seizure memo was in the Court which was filed along with the charge sheet and therefore, photocopy of the same had been used in the disciplinary proceedings. Further, the author of the seizure memo has proved the same. Hence the contention has not been found correct (para 5(xvii) of the Review Petition).
Whereas as regards Shri Bhardwajs allegation that as per Treasury Rules he could not have received more than Rs.100, if that was the case, he should have refused to receive the money. Since he had received the money it was his responsibility to keep the same in safe custody (Para 5(xix) of the Review Petition).
7. The DA has also dealt with the evidence, which has come on record. On the basis of evidence on record, the applicant has been held guilty of the charge brought against him. It is not a case of surmise or presumption. It has been established that the applicant had personally received the seized amount of Rs.21800/- from Inspector Y.S. Rathi, PW-10 on 22.10.1991 and deposited of Rs.2180/- with Shri V.K.Sareen Head Clerk on 14.05.1992. He never mentioned that the seized amount had been misappropriated at the time of handing over to the Head Clerk. The handwriting expert had confirmed his handwriting as far as entries at Sl No. 46 and Sl.No.402 to 428 of Malkhana Inventory Register are concerned. It is only that manipulation of the denomination of the currency that he could not ascribe any authorship; naturally so as it did not involve any handwriting.
8. The settled law is that the appreciation of evidence is not within the scope of judicial review. It is seen that the respondent-authority had sufficient evidence to come to the conclusion that the charge against the applicant was established. Since the facts of the present case are different and the verdict of guilt has been returned on the basis of evidence on record not on mere surmise or suspicion the judgment of the Apex Court in Roop Singh Negi (supra) is not applicable. Similarly, we find that the facts of the present case are different and the allegations have been proved by the credible evidence, therefore, the ruling of this Tribunal in OA 303/1997 is also not applicable in the present case. The respondents have explained why authenticated photocopies were used as the original copies were before the Criminal Court.
9. For the aforesaid reason, we do not find any merit in the OA, which is accordingly dismissed. No costs.
(Dr.A.K.Mishra) (G.George Paracken) Member (A) Member (J) /kdr/