Central Administrative Tribunal - Mumbai
Arun Kumar Singh vs M/O Finance on 12 July, 2024
1 | OA No. 329/2020 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION NO.329/2020 Date of Decision: 12" July, 2024 | CORAM: HON'BLE JUSTICE M.G.SEWLIKAR, MEMBER (J) HON'BLE MR. RAJINDER KASHYAP, MEMBER (A) Arun Kumar Singh, Aged about 56 years, superintendent CGST & CX, Audit-iii, Mumbai, B-914, Dhamma Seva Chs, S.G. Barve Marg, Kurla (East), Mumbai- 400024, Ph: 9869136506 Email: [email protected]. . Applicant (By Advocate Mr. A K Apte a/w Mr. KB Rajan) VERSUS 4, Deleted. 2. Deleted. 3. The Principal Chief Commissioner, CGST & Central Excise, Mumbai Zone GST Bhavan, 115 MK. Road, Churchgate, Mumbai- 400020, Email: ecu-cexmumi @nic.in, PH: 022-22015780 (0) 4. The Commissioner, CGST & Central Excise, Audit-I!| Commissionerate,- Mumbai Zone, 8" Floor, Lotus Info centre, Station Road, Mumbai- 400012, Email:[email protected] | Respondents . (By Advocate Mr. N K Rajpurohit) | ORDER RESERVED ON: 17" April, 2024. ORDER PRONOUNCED ON: 12" July, 2024 2 OA No. 329/2020 ORDER Per:Justice M.G. SEWLIKAR, MEMBER (J)
The applicant under Section 19 of the Administrative Tri- bunals Act, 1985 is challenging the order dated 24% May, 2019 _ dismissing the applicant from service and order dated 19% Feb- ruary, 2020 passed by the appellate authority dismissing the appeal.
2. Applicant's case in short is that he worked with Indi- an Air Force for eight years. Thereafter, in the year 1993, he. joined the office of CGST & CX as Inspector. At the time of initi- ating the inquiry, the applicant was promoted to the post of Su-
perintendent Grade B.
3. - Itis the contention of the applicant that one Madhu- lika Singh had made a complaint to the Director General Vigi- lance, New Delhi on 6" July, 2009 contending that she was the wife of the applicant. During subsistence of her marriage with the applicant, applicant performed second marriage. On her complaint, inquiry was initiated against the applicant. Charge memorandum was served on him. After holding inquiry, the In-
3 OA No. 329/2020quiry Officer held the applicant guilty by his order dated 20"
June, 2017. Appeal preferred by the applicant was also dis- missed. The disciplinary authority by its order dated 24" May, 2019 directed removal of the applicant from service in terms of Rule 11(viii) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 for Violation of provisions of Rule 21 and Rule 3(1)(i) and cu) of Central Civil Services (Conduct) Rules 1964. This order is impugned in 1 this OA.
4. | The Inquiry Officer held that in the CD of marriage, the applicant was being seen. He further held that the applicant
-was working in Air Force and he had sought leave from 15"
May, 1989 to 10" June, 1989. 'The Inquiry Officer further held _that the applicant has stated in the statement recorded before | Superintendent Vigilance that the applicant had not declared his marriage with Mrs. Archana Singh because permissible marriage age in Indian Air Force is 25 years. This fact was hid- den by him from the Air Force. The Inquiry Officer further held that from the statement of Smt. Madhulika Singh recorded on 23" September, 2016 by the concerned Assistant Commission-
er of Service Tax, Bhagalpur, it was observed that date of birth 4 OA No. 329/2020 shown-on the documents like LIC, Matriculate Certificate, Elec. tion Voter's Card, Marriage Certificate varies. The complainant has stated that her official records reveals that her date of birth is 28" July, 1966. He has aiso placed reliance on the Marriage certificate submitted by the panchayat sachiy, Grampanchayat Pagada, Dalsinhasaray and Voter's Card showing the name of her husband as Arun Kumar Singh. Accoridngly, Inquiry Officer held the applicant guilty and submitted the report to the Discj- plinary Authority. The Disciplinary Authority after considering . the report of the Inquiry Officer Passed the order of removal of the applicant. The applicant challenged this order before the appellate authority. However, the appeal was dismissed. These two orders are impugned in this OA.
48, We have heard learned counsel for the applicant and learned counsel for the respondents.
6. Learned counsel for the applicant submitted that the Inquiry Officer has placed reliance on the marriage certificate issued by the Mukhiya of Panchayat. He submitted that the cer-
tificate was issued after 29 years of alleged Marriage. He con-5 (OA No. 329/2020
tended that the person who prepared the CD has not been ex- amined nor his name is known to the Inquiry Officer nor to the Disciplinary Authority. Complainant has not been examined and still the Inquiry Officer watched the CD and on his own recorded the observation that person appeared in the cb was the appli- cant. He contended that this shows that the Inquiry Officer (lO) acted as prosecutor and not as a quasi-judicial authority. The - lO did not examine the complainant and thus, the IO violated _the principles of natural justice. He submitted that non-examina- tion of complainant violates the principles of natural justice. For this purpose, he has placed reliance on the case of Hardwari Lal versus State of U.P. & Ors. dated 27" October, 1999, AIR 2000 Supreme Court 277. He contended that the appli- cant has been accused of performing second marriage during the subsistence of first marriage. And the applicant being a star witness had not been examined and, therefore, it was not per-
missible for the Inquiry Officer to watch the video himself and come to a conclusion that.the person appearing in the video was the applicant.6 OA No.329/2020
7. Learned counsel for the respondents submitted that _the marriage certificate js a public document and, therefore, re- liance can be placed on it. He further submitted that the IO after watching the video has recorded a finding that the person ap- pearing in the CD was the applicant. Therefore, |O was right in recording the observation and it was the applicant who had per- formed marriage with the complainant on 24% May, 1989. He contended that apart from this evidence, there is other evidence fo show that the applicant has performed second marriage. He contended that in the judgement of Paina High Court, the High Court has recorded that being the husband -the applicant was ready to take the complainant to her matrimonial home. He sub- mitted that in the criminal complaint under Section 498A of IPC, the applicant had filed applications admitting his marriage with the complainant. Every time in the application submitted before the concerned Court before whom the criminal case under Sec- tion 498A was pending, the applicant has filed applications stat- ing that he was ready to take her to matrimonial hame. He con- tended that these admissions clearly show that the applicant was the person who had married second wife during the contin-7 OA No. 329/2020
uation of first marriage. He submitted that these admissions ciearly show that the applicant had married the second wife. Non-examination of complainant does not cause any prejudice to the applicant because from his own admissions, it is clear that the applicant has married the second wife. He contended that in judicial review, what the Tribunal has to see is whether | the finding of the Inquiry Officer were based on evidence or no
- evidence at all. In the case at hand, there is ample evidence in the form of admissions of the applicant to Show that he has married second wife. Therefore, the conviction recorded by the Inquiry Officer and the order of Tribunal passed by the disci- plinary authority are correct and no interference in these orders is called for.
8. We have given thoughtful consideration to the sub- missions made by the learned counsels for the respective par- ties and perused the pleadings and the record of the inquiry -
| produced by the respondents,
9. _ Following were the charges levelled against the ap-
plicant:-8 | QA No. 329/2020
1] ANNEXURE-! STATEMENT OF ARTICLES OF CHARGE FRAMED against Shri Arun Kumar Singh, Inspector, Central Ex- cise, Belapur ARTICLE-1 MVirs. Madhulika Singh has made a complaint to Director General Vigilance, New Delhi, on 06/07/2009, claiming to be wife of Shri Arun Kumar Singh, inspector, Central Excise, Belapur' Commissionerate. She has al- leged physical and mental torture for dowry, second mar- riage among other allegations by Shri Arun Kumar singh. In this connection Mrs. Madhulika Singh vide letter dated 15/10/2009 has confirmed that she is the complainant and also elaborated the hardship and harassment she had suf- fered from Shri Arun Kumar Singh. She had submitted photo copy of Court's proceedings which shows the details of hearing date-wise.
2. Mrs. Madhulika Singh vide letter dated 16/09/2010 has submitted the following documents in support to her complaint.
(i} Photo copy of Marriage Certificate issued by Mukhia, Gram Panchayat Raj, Pagada, Dalsinhsaray, showing that she has married with Shri Arun Kumar Singh on 24/05/1989.
(il) Photo copy of Court Proceedings from 26/05/2009 to 07/7/2010, one photo of wedding, Compact Dise (CD) of Marriage Ceremony held on 24/05/1989 converted from Video Compact Disc (VCD) and shows the marriage date as 24/05/1989 and name of bride and bridegroom as "Madhulika Weds Arun", :
3. Mrs. Madhulika Singh has filed Criminal Complaint _ No. 1583 of 2006 before Chief District Judicial Magistrate Court at Bhagalpur and the said proceedings appears to be pending for final decision.
4. Mrs. Madhulika Singh vide letter dated Nil received by this office on 02/04/2012 has forwarded the copy of in-
terim order certified on 21/02/2012 in the Criminal Miscel-
9 QA _ No .329/2020laneous Case No. 544 of 2012 passed by the Hon'ble High Court of Judicature at Patna, in the Case of Shri Arun Ku- 'mar Singh v/s the State of Bihar & Anr, wherein it is held that: ;
"The petitioner being the husband is apprehending his arrest in a complaint case in which cognizance has been taken under Section 498A, 323 and 379 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.
The petitioner is ready to keep the compliance as wife with full dignity and honour.
Considering the aforesaid facts, let the above named peti- tioner be released on provisional anticipatory bail for one year in the event of his arrest or --
surrender before the learned court below within a period of -- twelve weeks from today, on furnishing the bail bond of. Rs. 10,000/- (ten thousand) with two suretles of the like amount each to the satisfaction of learned Sub-divisional -- Judicial Magistrate. Bhagalpur in connection with Com- plaint Case No. 1583 of 2006 subject to the conditions as laid down under Section 438(2) of the CrPC.
Let the learned court below issue notice to the com- plainant for her appearance when the petitioner will take . the complainant to her matrimonial house to keep her é as wife with full dignity and honour.
The provisional bail of the petitioner will be confirmed by learned court below within a period of one year on sub- stantial restoration of the matrimonial harmony or if the complainant deliberately refuses to reside with the petition- er,"
5. In this context, the provisions of Rule 21 and Rule 13A of the Central Civil Services (Conduct) Rules, 1964 read as under;
Rule 21:-
(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living, and 10 OA No .329/2020 (2) No Government servant having a spouse living, Shall enter into, or contract, a marriage with any per-
son.
Provided that the Central Government may permit a Gov- ernment servant to enter into, or contract, any such mar- riage as is referred to in clause (1) or clause (2), if it is satisfied that -
(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage: and
(b) there are other grounds for so doing.
Rule 13A:-
No Government Servant shall-
(i) give or take or abet the giving or taking of dowry: or
(ii) demand directly or indirectly, from the parent or guardian of a bride or bridegroom, as the case may be, any dowry. -
6. In view of the above circumstance, it appears that Shri Arun Kumar singh, Inspector, Central Excise, Belapur Commissionerate, is involved in the case of Double Mar- riage / Demand of Dowry and has violated provisions of Rule 21 and Rule 13A of the Central Civil Services (con- duct) Rules, 1964. Thus it appears that he failed to main- tain absolute integrity and acted in a manner unbecoming of a government servant, thereby contravening the provi- sions of Rule 3 (1) (i) and (iii) of the Central Civil Services (Conduct) Rules, 1964."
10. _ From these charges it appears that the applicant has been charged for performing marriage having a spouse liv- ing. He was also charged of inflicting physical and mental tor-
ture for dowry. The complain is in hindi. As per Rule 21 of Cen-
11 OA No. 329/2020tral Civil Services (Conduct) Rules, 1964, a government servant is not permitted to marry when his spouse is living and is also not permitted to marry a person whose spouse is living. in the case at hand, the evidence produced during inquiry was the CD. lt appears that the CD was forwarded by the applicant along with her complaint. It is not known who had video shoot and prepared the CD. Inquiry Officer has recorded a finding that he saw the CD and found that the person in the CD was the ap- plicant. It is pertinent to note that the complainant was not ex- amined by the Inquiry Officer. It was the complainant who was the proper person to state as to whether the person appearing in the CD was the applicant or not because the applicant had denied that the person in the cD was he. Inquiry Officer cannot take upon himself the job of the prosecutor and state that per-
son who was appearing in the CD was the applicant.
1. For the proof of marriage, reliance was placed on the cer- tificate of marriage issued by Mukhiya of Grampanchayat Paga- da, Dalsinhasaray. On perusal of this certificate, it is seen that it was issued by Mukhiya Panchayat Raj. From the charge it ap-
pears that it is a photocopy and, therefore, no reliance can be 12 OA _NoO.329/2020 placed on it. Same is the case with Voter's ID Cards. It is also a 'photocopy. The applicant has denied these documents. When 'the applicant has denied these documents, it was incumbent on the Inquiry Officer to examine the witnesses on the marriage cértificate. It is worthnoting that the record of the inquiry does not contain list of the witnesses. It is difficult to fathom that the documents can be proved without examining the witnesses. Learned counsel for the applicant placed reliance on the case of Devendra Prasad, S/o Late Krishna Prasad versus State of Bihar & Ors. Civil Writ Jurisdiction Case No. 934 of 2016 (Patna High Cour?) for the Proposition that the documents pro- _ duced in the departmental inquiry have to be proved by examin-
ing witnesses. in para 7, ithas been held thus:-
" 7. AS has been held in Roop Singh Negi v. Punjab Na- tional Bank and others; (2009) 2 scc 570, the docu- ments produced in a departmental inquiry has to be proved by examining witnesses. Even an F.LR. was held 13 OA_No.329/2020 based on evidence which brings forth a probability that the delinquent has committed the misconduct alleged and charged against him. No Inquiry Report based on conjec- tures and surmises can be sustained and even in a de-- partmental inquiry, the standard of proof is not a mere sus- picion. However high the degree of suspicion is, it cannot be a substitute for legal proof."
12. Learned counsel for the respondents submitted that the marriage certificate issued by the Mukhiya clearly shows that the applicant had married the complainant. He further ar- gued that the Voter's ID Card also shows that the applicant was the husband of the complainant. We do not find any force. in these submissions. As indicated earlier and as held in the case of Devendra Prasad (supra), no reliance can be placed on ~ these documents as the Inquiry Officer did not examine any of- ficer from the concerned Gram Panchayat. Therefore, no re-. liance can be placed on it. Moreover, the marriage was alleged to have been taken place on 24" May, 1989. The certificate was issued after 21 years. The marriage was registered on 3" De- cember,.2010. The Births and Deaths Registeration Act came -- | into force in Bihar in the year 2006. Therefore, the procedure _ for registeration of marrige as prescribed in Rule 5 of the Bihar Marriage Registeration Rules, 2006 ought to have been fol-
14 OA No .329/2020lowed. For this reason also, no reliance can be placed on mar- ' tlage certificate. in respect of Voter's ID Cards, examination of complainant was necessary because she could have produced the original voter's card and on comparison with the original, the Ingiury Officer could have come to a conclusion that the voter's card is genuine or not. In these circumstances, the certificate of marriage and the voter's card are of no assistance to prove that the applicant has entered into second marriage while the Spouse was living. The Inquiry Officer has held that Marriage a Registeration Rules were framed in the year 2006-and, there- fore, they are not relevant for the inquiry as the marriage had taken place in the year 1989. The Inquiry Officer lost sight of the fact that though the marriage was performed in the year 1989, it was registered in the year 2010 i.e. after promuigation of Bihar Marriage Registration Rules, 2006 and, therefore, pro- cedure prescribed in Rule 5 ought to have been followed. Therefore, the reasonings assigned by the Inquiry Officer for placing reliance on CD, marriage certificate and voter's card are perverse.
15 OA No.329/202013. | Much has been said about the admissions given by the applicant in his applications before the Criminal Court in which case under Section 498A of IPC is pending. The respon-
dents have alleged in their affidavit in reply thus:- | " Further, in the Misc. (Maintenance) Case No. 20/2014 in the court of the Principal Judge Family Court, Bhagalpur, in the case of Smt. Madhulika Singh Vs. Shri Arun Kumar Singh, wherein the Principal Judge vide Or- der dated 08.12.2015 has observed the following:-
"Having regards to the facts and circumstances of this very case, it is evident that the parties are in litigating term since 2006 and they have been contesting the cas- es right from Civil Court, Bhagalpur to the Hon'ble High Courts, Patna and the O.P. himself has admitted in joint compromise petition dated 02.09.2013 filed in the com- plaint case No. 1583/2006 that the petitioner is his legally wedded wife of the O.P. and he is ready to arrange for her living at Bhagalpur with full honour and dignity, that the petitioner has been claiming the legally wedded wife of the O.P. right from the year 2006. whereas the O.P. is denying the same in his show cause filed in this case and claimed that the petitioner is well qualified lady having an average income of Rs. 19000/- per month from her coaching and tuition business as such she is fully compe- fent to maintain herself, that the petitioner has never been ready to go with the O.P. as alleged and claimed by the O.P. and it has claimed that he has filed alleged com- promise petition dated 2.09.2013 to save his skin from false implication. It is further evident that the O.P. has an- other wife namely Archana Singh and two sons from their wedlock and the O.P. has not accepted any marriage claimed. by the petitioner and the alleged marriage by the petitioner is null and void under 5 of the Hindu Marriage . Act, 1955 which is also evident that other family mem- bers of the O.P. has been accused in criminal case filed by the petitioner in the year 2006, that the statement of the alleged income and competency of the petitioner to eam a lot, have not been issued by the competent au-16 OA No. 329/2020
maintenance of the petitioner and also her much hyped Salary and income that apparently, the petitioner is not residing with the O.P. at Present and another lady namely Archana Singh is residing at his service Place along with - their two sons and this Situatf petitioner a natural and strong prima facie though real controversy of alleged marriage and maintenance has fo be decided on merit in this case.
ed ad-interim maintenance of Rs. 5000/. (Rupees five thousand: only) Per month since today for the time being | till further orders, without any prejudice to the merit of the case and the O.P. is directed fo pay the said monthly maintenance allowance of Rs. 5000/- (Rupees five thoy- sand only) ad-interim maintenance regularly on monthly. basis and the petitioner is directed to furnish the details 17 QA _No.329/2020 nal Complaint no. 1583/2006 that the petitioner (i.e. Smt. Madhulika Singh) is the applicant's legally wedded wife and he is ready to arrange for her living at Bhagalour with full honour and dignity. The Hon'ble Principal Judge Fam- ily Court, Bhagalpur has also further stated that Shri AK. Singh is not speaking truth regarding alleged marriage and maintenance to Smt Madhulika Singh and hence the Hon'ble Court directed to pay ad-interim maintenance al- fowance of Rs. 5000/- per month to Smt Madhulika Singh."
14. - It is pertinent to note that this order is not a part of the charge sheet. It is not listed in the list of documents Annexure-lil of the Charge sheet. Similarly, this order has not been dealt with by the Inquiry. Officer. Added to this, respon- dents have not annexed copy of order of the Family Court. Therefore, simply on the basis of mere allegations, it cannot be concluded that the applicant had given any such admission. In the charge it has been alleged that the Patna High Court in Criminal Miscellaneous Case No. 544 of 2012 has made obser- vations that the petitioner is ready to keep the compliance as wife with full dignity and honour. From the charge it appears that it was a bail application and in the bail application, the ap- plicant has given this admission. To counter his submissions, the applicant has placed reliance on the case of Hardwari Lal 18 QA _No.329/2020 VS State of U.P. & Ors dated 27" October, 1999 (supra) in which Supreme Court held thus:-
these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and fo establish that he was the best person to speak to its veracity.
-- So also, Jagdish Ram, who had accompanied the appellant to ihe hospital for medical examination, would have been an im- portant witness to prove the state or the condition of the ap- pellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material In these circumstances, we are of the view that the High Court and the Tribunal erred in not attach-
ing importance to this contention of the appelfant.
However, Shri Goel, the learned Addl. Advocate General, State of Uitar Pradesh, has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the
15. In this case, Supreme Court has held that non-ex- amination of the complainant and witnesses has caused preju-
dice to the appellant.
16. In the case at hand also, the complainant has not been examined by the Inquiry Officer. It has certainly caused 19 OA No.329/2020 prejudice to the applicant because he would have cross-exam- | ined the applicant. Because of non-examination of the com- plainant by the Inquiry Officer, the applicant lost the opportunity _ to put up his case to the complainant and prove his contention that the marriage did not take place at all. The examination of the complainant was all the more necessary because the com- . plainant by her letter dated 10m January, 2014 had withdrawn:
the complaint. There was no reason for the Inquiry Officer not to examine the complainant. In the report, Inquiry Officer has nowhere mentioned as to why he has not examined the com- plainant. In these circumstances, simply on the basis of some ~ admissions it cannot be said that the charge against the appli- cant that he has performed second marriage when his spouse was living can be said to be established: By not examining the complainant principles of natural justice have been violated. When principles of natural justice have been violated, the in- quiry cannot be said to be fair and impartial. In the case of Hardwari_ Lal (supra) also there was other evidence but _ Supreme Court'came to the conclusion that the principles of natural justice were not followed. Here also, the principles of 20 OA_NoO.329/2020 natural justice were not followed. The star witness of the prese- cution was the complainant and she has not been examined.
Naturally, prejudice has been caused to the applicant. If the complainant had been examined, the applicant would have had the opportunity to cross-examine the complainant and disprove her claim. He has been deprived of that Opportunity. Scope of judicial re- view is limited. Tribunal in judicial review has to see whether princi- | ples of natural justice have been followed or not. It has to see whether finding of the Inquiry Officer is perverse. It has also to see whether document which was not part of the inquiry has been re- lied upon. In the case at hand, finding of inquiry officer is per- verse. Ne has failed to follow principles of natural justice. in these circumstances, it cannot be said that the charge of bigamy has been proved against the applicant. Inquiry officer and Disciplinary Authority have not stated that the other charges are proved. Both of them have only said that charge of bigamy is proved. Learned counsel for the respondents, Mr. N K Rajpurohit submitted that if the Tribunal comes to a conclusion that the inquiry Officer has committed errors in conducting the inquiry then, inquiry be re- manded to the inquiry Officer from the 'stage where the error.
has occurred. We have given thoughtful consideration to the sub-21 OA No. 329/2020
missions made by the learned counsel for the respondents. We do not find any force in his submissions. The respondents have commit-
fed series of errors. No list of witnesses was prepared. Charge memorandum was served on the applicant on 17" July, 2012. We are in July, 2024. The complainant has withdrawn her complaint by writing the letter dated 10" January, 2014. Therefore, we do not think any useful purpose will be served by remanding the inquiry | Therefore, his submissions is rejected. We, therefore, deem it _ appropriate to allow the OA. So far as back wages are con- cemed, the applicant has not worked. He has not alleged that he was not gainfully employed during the period after his re- moval till the date of this order. Therefore, we deem it appropri- ate to grant him 25% back wages. In this view of the matter, OA is allowed. The order dated 24° May, 2019 dismissing the ap- plicant from service passed by the disciplinary authority and Or- der dated 198 February, 2020 passed by the appellate authority dismissing the appeal are set aside.
17. 'Accordingly, OA is allowed. The applicant be. reinstat- ed with 25% back wages from the date of removal till the date of this order with all consequential benefits. Record of 22 QA No. 329/2020 inquiry be returned to the respondents immediately. Pending MAs, if any, stand closed. No costs.
( Rajinder Kashyap) (Justice' M.G.Sewlikar) Member(A) | : Member (J)
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