Central Administrative Tribunal - Mumbai
Dhananjay Kumar vs M/O Finance on 9 June, 2023
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GA Ne Jes of 2018
Central Administrative Tribunal
Mumbai Bench, Mumbai
OA. No 38S/2019
Reserved on 21" of April, 2023
:
Mey
Pronounced on of of fins, 2023
Hon'ble Mrs. Harvinder Kaur Oberoi, Member GH
Hon'ble Mr. Shri Krishna, Member {A}
Shananjay Kumar,
so Sti Ranbir Sinha,
Deputy Commissioner of Income Tax,
Civil Code: 00020,
Office ofthe Principal Chief Commissioner of Thoame Tax,
Mumbai, Present Residential Address at Shanti Sadan,
Shanti Marg, Near Gaya Line Gur, Mithapur,
Patna-800001 (Bihar. .. Applicant
(My. Rajeev Kumar, Advocate}
Versus
i. Yhe Union of india
Through the Secretary (Revenue),
Goverment of India, Ministry of Finance,
Department of Revenue, New Delhi-110001.
2. Vhe Director General of "Vigilance (incame. Tax),
Ministry of Finance, Depariment of Revenue,
"Government of India, Deen Dayal Upadhyay M: AEE,
Dayal Singh Public Library, New Delhi-] Logez.
3. 'The Principal Chief Commissioner of Income Tax,
2
e
373, Aayakar Bhawan, Maharshi Karve Road,
Mumbai-400020 (Maharashtra)
4. Shri R. Ravi Kira, The Additional Commissioner of Income
Pax & Inquiry Officer, Camp Office, Murnibal-400020,
Maharashtra,
.. Respondents
(Mr. NK. Rajpurohit, Advocate)
ORDER
Mrs, Harvinder Kaur Oberok-
The applicant is aggrieved by the order dated O5.04. 2019 passed by the Inquiry Officer Gespondent no.4) in pursuance to the memorandum of charges dated 26.03.2011 jssned 'ander F No, C-IAGLU/3/2011- V&L, CBDT, MoF, New Dethi Sased on the charge sheet filed by the CBI in April, 201 lin the Special CBI Court at Mumbai which is under progress and pending before the said Court, Allegedly, the impugned memorandum of charges is issued by the Department without carrying out any independent investigation on its own and seeks to solely and exclusively rely on the very same witnesses cited by the CBT and the same documents relied upon by the CBI in the said Special case before the Special (CBI) Court at Mambat, Hence, the applicant has fled the present OA under Section 19 of Administrative Tribunals Act, 1985 se sking the following we elie ots:
OA eg85 of 2019 "S.1 That your Lordships may graciously be pleased fo quash and set aside the order dated 08.04.2019 so passed by the Respondent No.4 ie. Inquiry Officer as contained in Annexure A').
82 'That your Lordships may further be pleased to direct / command the Respondents foo stay the encruiry proceeding in respect of Departmental proceeding initiated vide Charge sheet dated 28.02.2011 under Role-I4 of CCS (CCA) Rules, 1968 as contained in Apnexure A/2 tll the examination of Prosecution Witnesses is completed in respect of Criminal Proceeding as comained in Annexure A/3 initiated by CRI registered vide CBI Spl Case No.39 of 2011 in the Court of Learned SPI Judge, Mumbai based on the saine facts, same documents and same Prosecution Witnesses for the allegation. of Dispropartionate assets in which trial is under progress and Prosecution Witnesses ae being called for examination and cross-
examination who are being examined otherwise his defense will be exposed and serious prejudice will cause to the applicant.
$8.3 That costs of this Application be awarded. tn favor of the Applicant and ae S.4 That such other and further rchefs ag ars expedient be granted in favour of the Applicant".
2. Facts im nutshell are that the applicant was initially posted as Assistant Commissioner of Income Tax, Nagpur on 29.12.2000 and thereafter wag transferred to Kelkata in the month of May, 2002 Where he was promoted to the post of Depuly Commissioner
5. St of Income Tax on 01.01.2005 and then he was transferred to ' Munibai in May, 2005, 2.1 While he was working at Mumbai, the CBI searched his residence on 14.06.2007 and instituted two criminal cases against him vide CBI Spl. Case No.8? of 2010 and 39 of 2611 for disproportionate assets ws 13 (e) of Prevention of Corruption Act. He was arrested an 28.08.2010 by the CBI, ACB, Mumbai and was released on bail on 03.09.2010 in connection with the FIR. He was placed under deemed suspension wet 30.08.2010 by respondents which was revoked by them within two months, Th CBI Spl Case No.82 of 2010, the Hon'ble Bombay High Court discharged him on 08.01.2019 but the other case, CB: PSpl Case Noo.39 of 2011, is still pending and trial is in p regress before the Leamed Spl. Judges, Mumbai.
TM, Ahmedabad ehere he remained up to March, 201 L.Acconding to the applicant, on the one hand, the Criminal ane Trial is under progress, Gn the allegation of dis sproportionate asset, before the competent court of law, and on the other hand, the respondents have initiated one de cpartmental proceeding for the same allegation based on same facts and proseeation witnesses vide charge sheet dated 28.02.2611 in which the inquiry has not been conchided on some pretext or the other and now the respondents have started torturing him as his residential accommmudation at Flet No.0], Oshiwara, Mumbai has been treated as unauthorized and they fixed Rs.13,08,S004 towards damage rent from 0107. 2010 and instructed hie to ewet the quarter, as evideat from ther order dated 07.01.2016 S. which DA No. SBS of 209 compels him to evict, allhough no nde authorizes the etuployers fo evict from official quarter unless an employee is transferred to other place or inquiry is being held without paying salary treating im service or employee is placed under si persion and is paid subsistence allowances, Whereas in the case of applicant, he has been evicted from quarter and hein &% compelled to attend inguiry from Patna, which can be seen front let Her dated 01.03.2019 issued fo the PCLT, Biber, Patna. e Trial is In progress in the said case before the Learned Session's Judge, Mumbai, the applicant submitted a detailed representation on 26.03.2019 46 the respondent No.2 with a copy to respondent No.4 for deferring the inquiry in departmental proceeding requesting the inquiry Officer to fix the date after the decision is made an his said representation by respondent No.2 However, without waiting for any order of the competent authority, the Ingairy Officer has tumed down his request and fixed the date of inguiry om 07.05.2019, which is a stated to be totally arbitrary. ieeal, punitive, unjust and contrary to various judicial pronouncements of tie Hon'ble Supreme Court, Hon'ble High Courts and different Benches of the Central Adimunistrative Tribunal, 2.3 In this regard, the applicant in the OA has drawn our attention to the principle 8 decided by the Apex Court in various Ses reported in 1990 Supp SCC Pg.738 [State of MLP. V/s Bani Si ugh), 2006(2) PLIR SC Pg.i68 [P.V. Mahadevan V/s M.D. Tamil Nadu Housing Board], 1998C4) SCC Pe iS4 [State of UP. Vis NN. Radhakrishan}, 2006(3) SLR SC Pg.105 (ALY.
UA NogSs af 2019 Bulani V/s Union of India), 2008() SLI SC Pg.85 [The Union of India V/s Sangram Keshari Nayak and ATR (Weekly) 26 {S.C} Page LM, Pars 33 [Prem Nath Ball Vs Registrar, High Court af Delt & Another} wherein the Apex Court was pleased to quash the Charge Memorandum on the ground of inordinate delay in concluding the departmental proceeding. However, in the present case, the applicant is not on the issue of quashing the charge sheet dated 28.02.2011.
24 That in view of the aforesaid facts and legal position, the applicant had ne option but to file the present Original Application for staying the ingniry proceeding in respeet of departmental soe proseading initiated vide charge sheet dated 28.02.2011 under Rule-l4 of CCS (CCA) Rules, 1965 ull the examination of Prosecution Witnesses is corapleted in respect of Crintinal Proveeding initiates y CBI in Spl case No.38 of 2611 in the Court of Learned Session's Judge, Mumbai based on the same facts, same documents and sare Prosecution Witnesses for the allegation of disproportionate assets im which trial is under progress and Prosecufion Witnesses are being called for examination and cross-examination and are being examined. In such a situation, i the departmental inquiry proceeding for the said departmental charge sheet dated 28.02.2011 is allowed to continue at this belated stage simultaneously, then his basic defense Wil get exposed in the criminal trial and the whole idea of ieee aiccainntiog in the criminal trial will be defeated which is against the basic tenets of ¢ crim tinal jurisprudence as there will not tn OA NoS8s of 9 be any spontaneity in any of the questions during cross- examination. Hence, it will cause serious prejudice and affect his ease which is directly against various judicial pronouncements of Hon'ble Supreme Court incloding in the case of Capt M. Fan! Anthony Vs Bharat Gold Mines Lfd reported in AIR 1999 SC i416 in which it has been beld that if the departmental and criminal roueedin ags beth are based on same allegation, same facts, same documents and same Prosecution Witnesses, then the departmental proceeding should be kept in abeyance a examunation of Prosecution Witnesses in the criminal trial, Te is stated that the present case is fully covered by the aforesaid judgment in Capt. M. Paul Anthony (Supra), therefore, the departmental proceeding is Hable to be stayed in the ends of fastice and also in view of the said principle of law.
28 Purther, if iS stated that his case involves complicated questions of law and fact which should be decided by the competent criminal Court before any decision on the sarne can be taken by the Inquiry Offtcer in the departmental procesdings. In this regard, the following points were highlighted for proper appreciation of the facts "{a} Statement of the movable properties filed b the applicant on joining of service in the Income Tax Department has been misplaced by the Department. This is severely affecting the caleulation of dispropurtionats asset in. the applicant's case, as without considering this basic document, the correct calculation for disproportionate asset is mot possible. As per section 63 ¢ the Indian Evidence Act, 1872, § OA No. dk of 2019 the secondary evidence for the content of the & docurnent should be admissible, Unfortunately the is applicant has not been given any opportunity by ihe ae a CBI to produce such evidence befdre filing of the chargesheet by the CRI in the criminal Court, (6) In the chargesheet, the CBY has chibbed the assets of the applicants' late father, who was a retired government servant and Mrs Punam Kumari Sinha, applicant's sister. Both the father and sister had the independent source of Income and were assessed to income tax, (c}) Further CBI hes made a grave error by considering and calculating the income of my late father and sister only for the check period, and not for the entire period of their own, Plus, CRT was apparently not justified to consider the incerme of the applicants' late father and sister only during the check period for explaining their assets, and ignore thelr income and savings throughout their entire active career fbr the purpose of calculation of dispropertionate asset.
{d) In the chargesheet, the CBI treated cash withdrawals from a bank account aS expenditure which is nat correct as per accounting. The cash withdrawal merely converge the cash in bank ints cash in hand.
fe) CRI has caleulated that disproportionate agset on the presumption that the applicant's wife had no movable assets at the time of my marriage in the year 2006, sven thongh she was a class one government servant and working since Angust 2000, () My income tax returns for the cheek period have not been considered by the CBI", .
9GA Nos of 2019 Thos, if is stated that such issues of facts raise the complexity of law and fact in the matter, which cannet be addressed by the inquiry OMicer in the departmental inquiry.
2.6 it is also stated that the essence of his represotitation was that continuance of inquiry would obstruct and interfere with the cause of justice and i would serigusly prejudice the defense to be undertaken against the criminal charge. As is well known, in the criminal trial, the prosecution ought got get the opportunity to know the defense beforehand before bringing witnesses for examinations, as they may get an unlair advantage fo. lead witnesses through Examination in Chief to scuttle the defense and thus greatly projudice the case of defense rendering the trial unfair to the defenses which is against the standard principles of Criminal Jurisprudence, The applicant pointed out to para 4 of CVC OM | No S9/ViGL/087 (Part)-357496 dated 05.09.2017 which stipulates as under
"tn the hight of DoPT's instructions. and Supreme sourt judgments, DGIT(V3 is also advised to decide accordingly if'a case inv olves complicated question of law and frets and take a view in fiture as to whether fo initiate simultaneous disciplinary proceedings at the lime of deciding issue of sanction of prosecution", Porther, itis stated that the afbresaid proceedings with the inquiry without considering the facts and pecullar aspects of the case fbr deciding the issue of keeping the proceedings in abeyance in terms of established law by Hon! bis Suprenie Court and various OMs of Government of India refer red and relied upon by him in his Rey OA NG ASS af 2078 represemation, is tndhir, unreasonable and arbitrary exercise of power, 2.7 it is stated that the potential prepadice which would be caused to him has been ignored blatantly by the respondents and in addition, the violation of natural justice which would be caused to him has not been considered by the respondents in the matter as the cammunication is silent and without any TeAasoning given in ik As per OM dated 01.08.2007 issued by DOPT, it had heen clarified that in serious cases involving offences such as bribery/sorruption etc, merely because the criminal tal js pending, the departmental inquiry involving the very same charges as are involved in the criminal proceedings, departinental inquiry is not barred and firther stated that the only exception to this was that if the charge in the criminal case is of a grave nature which involves compliested question of law and fact as mentioned in paragraph 3 of the said OM, 2.8 Tt is submitted that the Toguiry Officer vide letter dated 08.04.2019 had fixed hearing from 06.05.2019 te O9.05.2019 and directed that the witnesses be called for examination. Only 12 Witnesses have appeared and the nguiry Officer has decided to iasue summons to rest of the Prosecution Wimesses for hearing on further dates. At the same time, in tal before Spl Judge CBI, Mumbai, the fooording of evidence Rad started and. cross examination of S Prosecutian Witnesses was already over, Cross. examination of 1 Prosecution Witness was in progress and case was fixed for next hearing on 07-06-2019. in these Circumstances, | GANG SSS of 2018 he was constrained to file the present OA seeking stay of departmental disciplinary proceeding pending the hearing and Hnal disposal af Special Case Nu.39 of 2011 now before the Court of Hon'ble Special Judge at Mumbai or at least as intertm measure only for 12 weeks stay in the interest of justice so ag to prevent the prejudice being caused to him to disclose the grounds of defense in the departmental Inquiry before disclosing in ongoing criminal trial.
2.9 He relies upon the following case laws in support of his case in the present OA:
Sy
(i) Captaim M. Pani Anthony vs Bharat Gold Mines Ltd 1990 ATR SCW 1098 Gi) SBI v/s Neelam Nag, (2016) 9 SCC.491 Fans (ai) Pradhan Singh Vis M/o Personnel, Public Grievances and Pensions (OA No. 1082/2018 Before CAT Principal Bench, ior Delhi) GV) BP Singh Vs Ministry of Finance (CAT, Mrobai Beneh)
(v) KS. Mahadik Vs M/s Minisiry of Finance (CAT, Bench Order dated ist May, 2018)
(vi) RP. Meena Vs Ministry of Finances, CAT of Mumbai Bench Order dated 24/08/2018 re:
GA Ne 385 GP 2079
3. Per contra, respondents have filed their counter affidavit and have stated therein that there is no bar on proceeding with mnt! departmental proceedings while criminal case is ponding even if re i | the departmental proceeding and the criminal case jx based on identical and similar frets as both criminal and departmental proceedings are entirely different, They operste in different felds and have different objectives. In the disciplinary proceeding, the question is a8 to whether the epplicant is guilty of such eonduet as would amount to removal from service or lesser punishment as the case may be. Whereas in the ctiminal proceeding, the question is as to whether the offence is registered against him under the Indian Penal Code, 1860 or the Prevention of Corruption Act, 1988 as established, and if established what sentence should be imposed upan him. The standard or proof, the mode of inquiry and the rules governing inquiry and trial in both the Cases are significantly distinct and different, 3.1 Further, respondents stated that by way of the present OA, the applicant has attempted to challenge the entire charge memorandum dated 28.02.2011 and has tried ta argue that as the said memorandum dated 28.02.2011 was based on the CBI chargesheet dated 29.04.2011. 4 atay should be granted in respect of the ongoing inquiry Proceedings. The inquiry proceedings in this case have been in progress since the appointment of Arst Inquiry Officer in the case on 08 MG.2011. The applicant has sought to obtain a stay on the inquiry proceedings that have been Dey going on since 2011. He fled a representation for stay of ig OA No.388 of 2019 proceedings on 25.03.2019 which was rejected by the 1O vide order dated 08.04.2019 for the reasons stated above and also in view of the fact that more than § years have passed since issue of the chargesheet.
chgaging in delaying tactics to stall the inquiry proceedings. Hence, considering these facts, the OA deserves to be dismissed on this ground alone by holding if barred " limitation under section 21 of the Administrative Tribunal Act, 1985. 3.2 itis stated that In case No.82 af 2010, the Hon'his Bombay High Court vide order dated 12.12.2018 has allowed the Writ Petition of the applicant on technical grounds that sanction for prosecution was net granted by the relevant anthority, however, m para 13 of the order, the Hon'ble High Court recorded that there is material on record against the petitioner/acensed to frame charges wnder section 7 of the Prevention of Corruption Act, 1988.
3.3 With regard to the allegation of non-payment of salary, 1019 stated that, as per records, Ad VIA Section, the applicant was sancioned study leave from 29.03.2010 to 29.04.2011 fer pursuing Post Graduate Diploma in Management for Executives at TM, Ahmedabad vide Board's letter dated 25.03.2010. After expiry of study leave, he has neither resurned duty nor sent any communication in this regard. Though he was repeatedly requested to report duty un mediately, he failed to resume daoty after expiry of study leave, and thus, be is on unauthorige:
absence from duty since 30.04.2011. Inse far as the representation 4 if the applicant dated 29.03.2019 is concerned, the applicant has SS 77, kW" ©©$ *" "8 "™E--E5x *}PWo SSE iiiitnnemnemnannaniane requested the Inquiry Officer to defer the inquiry in the departmental proceedings Hl the decision of the relevant CBI Court in the criminal case. The 10 has correctly rejected the representation of the applicant on the ground that stay can be granted by the IO only on the following grounds:
{a} When there is a stay order from the court of competent jurisdiction.
(b) 'When the charged officer has expressed lack of faith in the qo Further, as far as the decision of respondent ho on the representation dated 26-05-2019 is concerned, it is stated that the Inquiry Officer is the deciding authority in respect of the representations made by the applicant, unless the applicant shows.
lack of faith in the Inquiry OMicer. Respondent No.2 has ne role in so Tar as the ongoing inquiry proceedings are concerned. The IO is an independent authority to decide the case of the charged officer and it is for him to decide upon the representation of the applicant. Once prosecution sanction and initiation of departmental proseedings is appreved by the disciplinary authority, itis clear that a conscious decision has been taken that the case of the applicant deserves to be ee taken up. for disciplinary proceedings even though sanction for criminal proceedings is being granted on the same set of acts PERI > OS No.385 of MAG 3.4 Further, the respondents refer to DoePT OM No.1 1012/6/2007-Bett (A-TE]) dated 21-07-2016 which slates as follows:
"4" Tt has been reaffirmed in a catena of cases that there is no bar for iniuation of simultancous eruamal and departmental proceedings on the same set of allegations. In State of Rajasthan vs. B.K. Meena&Ors. (1996) 6 SCC 417=AIR [997 SC 1S=197 CL) LLY 746 (SC), the Hon'ble Supreme Court has emphasized the need for initiating departmental proceedings m such cases m these words: it must be remembered that interests of administration demand that the undesirable elements are thrown ont and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but fo keep the administrative machinery unsulled by getting rid of bad elements. The. interest of the delinquent Officer also lies in a prompt conclusion of the disciplmary procesdings. If he is not guilty of the charges, his honour should be vindicated at the earliest. possible moment and. if he is guilty, he should be dealt with promptly according to law. [bis not also in the interest af administration that persons accused of serious misdemeanor should be continued ta. office indefinitely, Le. for long periods awaiting the results of criminal proceedings:
5. In Capt M. Paul Anthor ny Vs. Bharat Gold Mines Ltd. ke Amr, (1999) 2 SCC 679, the Supreme Court has observed 'that departmental proceedings and proceedings uf a criminal case can proceed surultaneously as there ig no bar in their being conducted simullancously, though separately."
3.8 With regard to applicant's emphasis. on various judgie stated above wherein charge memorandum has been quashed due to delay, a is stated thet the a appli vant there has stated that he SA NGARS olay does not seck to quash the charge sheet, and thus, the cases cited by the applicant are not relevant to the present facts and circiimstances of the case, It is also noteworthy that any attempt to seek quashing of the charge-sheet at this stage, is not legally tenable, as the same would be barred by limitation as per section 21 of the Administrative Tribunal Act, 1985, 3.6 Further, it is stated that, as per the DoPT handbook for Inquiry officers and Disciplinary Authorities, normally the employes concerned would object to the departmental proceedings on the plea that by participating in the departmental proceedings food the delinguent would be compelled to disclose his'her defense in advance and the same would seriously prejudice defense in the criminal case. That consequences of staymg the departnental proceedings are too well known to need any recapitulation. The reason cited by the delinquent cannot be accepted as a blanket sanction for stay of departmental proceedings as Hon*ble Supreme Court suggested in the State of Rajasthan Vs. BK. Meena & Ors. (1997) T LLIVGSC), the only around comstititing a valid 3 gtound for staying the disciplinary proceedings is that "th defense of the employes in the criminal case may not be prejudiced". This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case mustinvelye complicated questions of law and facet. Moreover, advisability, desirability, or propriety, as the case may be, of Staying the department ingiury has to be determined in cach case taking into consideration all the BS?
acts and circumstances of the case stay of disciplinary proceedings cannct be, and shonid not be, weighed and a decision taken keeping In view the various principles laid down in the cores decision of the Hon'ble Supreme Court.
3.7) In respect of the applicant's apprehension that his case in the Criminal Court will be prefadiced if the same set of witnesses are first called in departmental inquiry and then in the criminal proceedings as they will ect Hime to came ont with ready-made answers to questions raised diving the cress-~examination and further that there will be no spontaneity in the reply of the witnesses if they are already aware of the line of questioning ening ¢ eross-examining, the respondents have placed their reliance on the judement delivered by the Hon'ble Supreme Court in the case af bevot Manager, A.P. State Road Transport Corp. Vs. Mohd. Yousuf Miva &Ors. (1997) 2 SCC 699, the relevant para of which reads as follows:
"Phe purpose of deparimental enquiry and of proseention are fwo different and distinct aso The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society ah for breach of which law has provide a that the 6 offend er shall make satisfaction ta the public. Se erime is an 2 act of commission in violation of law or of omission of public duty. The departmental. enquiry is to maintain ee ine tn the service and ciency af pablic servies. It would, therefore, be iont thet the disciplinary proceedings are "ted and completed as expeditiously as posable fr ig nat, therefore, desirable to lay down OA NOSES oF 2019 guidelines as inflexible rules in which the departmental proceedings may ¢ tmay not be stayed pending trial in criminal case against the deli inquent officer. Bach case requires to be considered in the backdrop of fs wn frets and circumstances. There would be no bar to proceed simultaneously with departmental s enquiry and inal of criminal case unless the charge in the criminsl tal is of grave. nehue involving complicated questions of facts and law. Offence generally implies infiingement of public duty, as distinguished from mere pay 'ale rights punishable under criminal kes w. When trial for criminal ofence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisigns af the evidence At. Converse is the case of de sparimental enquiry. The enquiry ina departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability oY the Evidence Aut stands excluded js 4 settled legal position. Uneer these cieamstances, w hat is required to be séen is whether the departiental enquiry wonld seriously: prejudice the delinquent in his defence at the trial in a criminal case. Itis always & question of fact to be considered jn each ¢ case depending on its own faeis and circumstances. [n this case, the charge is fhilure to anticipate the accident and prevention th creo', it has x eh wath the culpability of the offence.
304-4 and 338 IPC. Under these circumstances, 'be High Court was right in Staying the pr oceedings."
HAG | to. ) do Thus, it is stated that in the present case the applicant' 8 defence in the criminal trial will not be prejudiced by the ongoing inquiry OR ONES: 2 proceedings as the inquiry proceedings are in Tespeet of the charges of { ailing to maintain absolute inteerity devotion to duty GA Nodes of 2019 and exhibiting conduct unbecoming of a government servant No justice will be done by delaying the departmental proceedings further al this stage and that the applicant may be directed to join the Inquiry proceedings without any farther delay and allaw 4 tc be concluded at the earliest,
4. _ That this Tobunal vide order dated 11.06.2019, was pleased to stay the Disciplinary Proceedings, the following order was passed:
Shri Rateev Kumar, learned counsel for the spifieant Heard the learned counsel for the applicant.
By way of the present OA, Sled under Section 19 ofthe Administrative Tribunals Act, 1985, the applicant who is working as Deputy Commissioner of Income Tax under tie respoxsdents has challenged the order dated 08.04.2019 (Annx A-1) vide which the respondent No.4 Le. the Inquiry Officer in the ongame departmental proceedings agsinst the applicant under Rule 14 of CCS (CCA) Rules, 1965 has rejected the prayer of the applicant fbr ey of the Deparimenta al Proceedings on the ground that Inquiry Officer cannot stay the proceedings except under one of the undermentioned two circumstances i.e. (a} when there is a stay order from the Court of F Competence | jurisdiction: (b) when the Chareed Officer has expressed lack of faith in the 10, The learned counsel for the applicant submits that ongoing disciplinary proceedings against the applicant is based on same sets of charges, the same sets of doouments sud also the same sets of Witnesses as in the Criminal Trial against the applic 'i in CBY case Noe 39/2011, pending frial betore the learned Special Judes.
GA Na. 383 of 2019 The learned counsel for the applicant further . 2 submits that the Central Vigilance Commission vide : thelr OM No SO/VGL/O87 (Part}3S7496 -- dated 05.09.2017 (Annes A-8) has clarified and provides that:
= Hi "3. Further, in ihe light of DoPTs instructions and Supreme court judements, DGIT CV) is alse advised to decide accerdinely Hf a case involves complicated question. of law and facts and take a wew ix future as to whether to inifiate simullaneous disciplinary proceedings at the time of deciding issue of sanction for prosecution."
He further stbmits that in view of the aforesaid provisions of OM dated 05.09.2017, the applicant has preferred representation before the DGIT (Vigilance) on 25.03.2019 (Annex A-7) for stay of the departmental proceeding ftHl examination of the witnesses in the aforesaid Criminal Case is over, however, the same is still pending consideration of DGIT { Vigilance).
The learned counsel for the applicant Auther submis that in the Criminal Case complicated questions of law and facts are involved and prosecution evidence is already going on before the leamed Special Judge in the aforessid case and in case: the applicant is required to disclose his defense in the Departmental Proceedings, his defense in the aforesaid Criminal Case js likely to be prejudiced.
ssue notice to the respondents.
The learned counsel for the applicant presaes for grant of interim relief tn terms of pétagraph No.9 of the OA and he relies on the law laid down by the learned Apex Court in Captain M. Paul Agthony Vs. Bharat joe Mines Limited & Another, 1996 AIR scw se OO doo URiteg fe pe fad pe In the aforesaid facts and law, the respondents are directed not to proceed under the Departmental Proceedings In pursuance of the charge memo dated 28.02.2011 CAnnex A-2) ull the next date af hearing".
$. Counsel for the applicant while arguing the case submitted that after the above interim order was passed, the same has been implemented by respondents and they have not proceeded further with the Inquiry. Ne farther subriitted that the criminal case has progressed, however, the evidence is nol yet complete, partly duc to slow progress and partly due to Covid Pandemic as during the pandemic period no. evidence was recorded. He submits that applicant is not iaking any benefit from the respondents as he has not claimed any salary/subsistence allawance and neither he ts accupying any govt. accommodation. This fact is not dented by respondents.
5 £ -onsider ang the above, it is seen that the allegation on the Sing asaets bey end a known source of applicant 1s af pe income ane slipant has provided a biasion explanation. bean ireated to be that tris indeed a complicated ave to be -cobidiond and syial court only.
DE EEE EEEEEEEEIEEIIBEEEEEEIEEEIEEIEEJU[C@UP>UMMaxxExUxXxjJxxX*#zXZ"?ZzZzxxweuaaaa O4 No.SR5 of 2019 7, In SBI ws Neelam Nag, (2016) 9 SCC 491. Apex Court, while relying uponthe case ofStanzen Tovetetss India Private Limited ws, Girish Vo & Ors. has held as wider:
"Tn the peoullar facts of the present case, therefore, we accede ta the contention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis io suspend the disciplinary Proceedings initiated dagainsi the respondent for san indefinite period; and in larger public intere ast, the order 8s passed in Stanzen's case be followed even in the fet Situation of the present c: ase, to balance the = equil: SO EA ee Accordingly, we exercise discretion in favour oF the respondent of Stayme the ongoiny disciplinary proceedings nnd! the closure of recording of 8 feSSeS Het j directed by the TNvision Benok AGL consider i fir fe siraehtway. Ins cad. in ose ani "oiled be suliciently served nase pending avainst the re expedk HOUS ¥ Dut not Ister than ;
: The Trial Court Shall ¢ Ousirs that the Withesses eXamined an day-f becames jn ev table, fortnight when Hece = We also cireet Ue = cooperation 9 Het the trial, appointed by AE opp gy .
#3. Uf the ty Fist a : Epis bod wy pte Year 6 date of this order despite ues TPOny oh haw ' . Fak Gs RST 3 the Sfops MOAN ey .
ASS OED direciad to take the discin nary a al Coun is Tl cor AES be oe OA No Gdd of Sos against the respondent shall be resumed by the emery officer concerned, The protection given to the respondent of keeping the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiring of the perled of one year from the date of this order."
8. In the present case, the Criminal Case was régistered in 2011 and the trial is ongoing. The apolicant is actnittedly not availing any benefit from the respondents. This court has already noticed the allegations as complicated in nature while granting interim protection. The applicant has been acquitted in the other criminal case in the meantime. In view of the above, follawing the law laid down in SBE VS Neelam Nag (supra), we direct respondents not to proceed with the departmental inguiry for a period of one year from today, Needless to say, the applicant would cooperate in the trial and world not seek unnecessary adjournment,
9. With the aforesaid directions the present OA is disposed off Liberty would be there for respondents to seek a modification of this order, if so required, within the aforesaid period. Pending MAs, any, also stand disposed of No casts, (Shri Krishna). (Harvinder Kaur Oberoi) Member (A) . Member (3)