Central Administrative Tribunal - Delhi
Shri S.K. Babbar vs Union Of India Through on 21 April, 2014
Central Administrative Tribunal Principal Bench OA No.2895/2012 Order Reserved on: 19.02.2014 Order Pronounced on:21.04.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri S.K. Babbar, G-14/14, Malviya Nagar, New Delhi-110017 -Applicant (By Advocate: Shri O.P. Gehlaut) VERSUS 1. Union of India through Joint Secretary (Delhi), M/o Home Affairs, North Block, Central Secretariat, New Delhi 2. Government of NCT of Delhi through Its Chief Secretary, Delhi Government Secretariat, IP Estate, New Delhi-110002 -Respondents (By Advocate: Shri Amit Anand) ORDER Dr. B.K. Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 impugning the order dated 18.8.2011 effecting 50% cut in pension on permanent basis upon the applicant.
2. The applicant, vide this OA, has sought the following reliefs:-
(a) Set aside the impugned penalty dated 18.8.2011 along with the disciplinary proceedings.
(b) Award interest on gratuity and arrears of pension and 18% per annum.
(c) Impose cost on the respondent for exorbitant delay.
(d) Issue any order/direction in the above context and in the interests of justice as it may deem appropriate.
3. The facts of the case, in brief, are that the applicant while working as Assistant Sales Tax Officer in Government of NCT of Delhi was issued a charge-sheet vide order dated 17.5.1995 under Rule 14 of CCS (CCA) Rules, 1965 containing six Articles of Charges relating to negligence and dereliction to duty, failure to maintain absolute integrity, acting in a manner unbecoming of a Government servant thereby violating the provisions of Rule 3 of CCS(Conduct) Rules, 1964. In all these Articles of Charges, the applicant has been charged with ignoring the advice of the report of the subordinate officers and/or acting on his own inquiry and issuing forms without having diligently verified the dubious activities of the registered dealers. Several of these forms turned out to be bogus or were backed by inadequate sureties on account of which the parties made huge amount of purchases. Subsequently, many of these firms either folded up or disappeared leading to losses of crores of rupees to the Government in the form of taxation. The applicant was departmentally proceeded against the applicant under Rule 14 of CCS(CCA) Rules, 1965. In the meantime, the applicant retired and the inquiry was continued under Rule 9 of CCS (Pension) Rules, 1972. The inquiry officer held the charges framed against the applicant proved vide its report dated 05.10.2001. The matter was referred to the CVC, who advised imposition of suitable cut in pension of the applicant. Copy of the inquiry report was served upon the applicant along with the advice of the CVC. The defence of the applicant was duly considered and the disciplinary authority recommended penalty of 25% cut in his pension for a period of five years. The case was referred to the President for taking a decision under Rule 9 of the CCS (Pension) Rules 1972. The Union Pubic Service Commission was also consulted and it advised reduction of 50% in the monthly pension of the applicant on the permanent basis. Accordingly, the President came to the conclusion that the charges against the applicant were well proved, grave and proceeded to impose 50% cut in his pension on permanent basis vide the impugned order dated 18.8.2011. The applicant had adopted the following grounds for the OA:-
(i) The applicant has argued that he was acting under quasi judicial capacity and that all his actions were covered by the words intent and provisions of circulars issued by the department from time to time. Where things have gone wrong, the same could not have been anticipated at that particular point of time. However, he has acted in the larger interest of the department and of the Government and he cannot be penalized for the same, as he did not have advantage of hindsight.
(ii) The applicant has alleged mala fide, unfairness and discrimination on account of delay of six years in penalizing him after issuance of charge-sheet. This amounts to denial of the rights of the natural justice.
(iii) The applicant submits that the entire proceeding has been vitiated by the deliberate non-compliance with the provisions of Rule 14(18) of the CCS (CCA) Rules, 1965.
(iv) The applicant submits that non-supply of UPSC advice and inconsistent reports have caused much prejudice and vitiated fairness in inquiry. The recommendation of the UPSC for imposing 50% cut in pension was contrary to own opinion of the disciplinary authority, but has been followed nevertheless blindly without assigning any reasons for the same.
(v) The applicant has also pleaded disproportionality of the punishment.
4. The applicant has relied upon the following judgments in support of his argument:-
(a) M.V. Bijlani V/s UOI, 2006(3)SLJ SC 184
(b) State of AP Vs. N.Radhakrishnan, 1998(3) SLJ 162 UOI Vs. S.K. Kapoor, 2011(4) SCC 589 Managing Director ECIL Vs. B.Krunakaran, 1993(4) SCC 727 Ministry of Finance Vs. SB Ramesh, 1998(3) SCC 227 Roop Sigh Negi Vs. Punjab National Bank, 2009(3) SLJ SC 14 Latoor Singh Vs. UOI, 2003(1) ATJ 105 B.E. Supply Co. Vs. The Workment, AIR 1972 SC 330 Inspector Prem Chand Vs. Govt. of NCT of Delhi, JT 2007(5) SC 294 P.C. Joshi Vs. State of UP, JT 2001(6) SC 239 UOI Vs. J.Ahmad, 1979 SLJ SC 308 UOI Vs. Murli Manohar Joshi, 2005 II AD (Delhi 209) Hardwari Lal Vs. State of UP, 1999(8) SCC 582 Govt. of A.P. Vs. Venkata Raidu, 2007(1) SCC(L&S) 254.
5. The respondents have filed their counter affidavit wherein they have rebutted all the points raised in the OA. The respondents have submitted that there is more than sufficient evidence that the applicant had granted registration to dealers in violation of the procedure laid down in the DST Act, 1975 and despite clear reports of the Ward STI that no firm was functioning at the given address or name, and prescribed sureties of only Rs.25,000/- each both the local & Central Acts and kept on issuing ST forms regularly on fortnightly and monthly basis. The dealer made concessional purchases worth crores of rupees on the strength of these statutory forms. The applicant issued 320 ST-35 forms, 95 C forms and 65 ST-1 much forms without verifying the dubious activities of the dealer i.e. M/s Jindal Trading Company, causing a heavy loss to the public exchequer to the tune of Rs.63,28000/- i.e. 27,12,000/- as additional demand in respect of assessment year 1990-91 and Rs.36,16,000/- in respect of assessment year 1991-92. He, thus, grossly failed to carry out checks and cross-checks of the transactions of the said dealer. His action to issue show cause notice for cancellation of registration and simultaneously calling the dealer for imposition of additional surety prima facie was mala fide on the part of the applicant for helping the bogus dealer. It was his duty to safeguard the interest of the Government, which he has deliberately failed to do. These have been very well substantiated against the inquiry report.
6. In response to para 4.6(B) and (C) of the OA, the respondents submit that the applicant had granted registration to the dealer ignoring the warning that the dealer was dubious dealer and deliberately minimized the amount of security.
7. The respondents have also asserted that the departmental proceedings against the applicant have been carried out as per the rules and documents have been duly signed and examined as also the prosecution witnesses.
8. Denying the allegations made in Para 4.11 of the OA, the respondents submit that delay of the proceeding is not intentional. The applicant had a number of disciplinary cases against him in the Sales Tax Department and this case was the last to be decided in that series. All the procedures have been followed, including giving details of the documents to the applicant.
9. The applicant has made generalized submissions in his OA (para 4.15) and has not brought any specific instance of documents not proved (para 4.17). He never submitted any representation to change the IO or lack of trust in the IO.
10. The respondents further submit that there is no violation of Rule 14(18) of the CCS(CCA) Rules, 1965 and that the applicant has not filed any reply against the order and has come directly to the Tribunal. The respondents further submit that if the documents were not produced, the applicant should have drawn the attention of the IO then and there and not waited to argue the point before the Tribunal. Moreover, he has not specified the documents, which had not been submitted. He has also not given any specific example of violation of rules. As regards the point of Rule 14(18) of the CCS (CCA) Rules 1965, the respondents submit that he had ample of opportunity of interacting with the inquiry officer and to press his point of view, which he did during the course of proceeding. Therefore, he is merely resorting to technicality to cover his fault. The respondents also submit that there was no requirement to supply copies of UPSC advice before passing of the final order in the disciplinary proceeding against the applicant and considering the enormity of the charges, the punishment does not cover even a fraction of the losses caused to the Government.
11. The applicant has filed a rejoinder application reiterating the points raised in the OA and alleging that his case has been highly prejudiced on account of the fact that the UPSC advice was given to the applicant much after filing of the OA. It was provided in the counter, to which it was not possible to give a reply.
12. We have carefully examined the pleadings of the rival parties as also the documents submitted by them. We have also patiently listened to the arguments forwarded by their respective counsels. On the basis thereof, we find the following issues germane to the decision in the instant case:-
(i) Whether the requirement of Section 20 of the AT Act, 1985 renders the Application infructuous?
(ii) Whether the charges framed against the applicant have not been substantiated at any stage?
Whether departmental proceeding against the applicant is hit by non-compliance to Rule 14(18) of the CCS (CCA) Rules, 1965?
Whether departmental proceedings are vitiated by other lacunae, which have been alleged like non-supply and not proving the documents?
Whether the non-supply of the UPSC report vitiates the proceedings?
Whether the punishment is disproportionate to the quantum of punishment?
What relief(s), if any, could be granted to the applicant?
13. Insofar as the 1ST issue is concerned, it is an admitted position that the requirement of Section 20 of the AT Act, 1985, has not been fulfilled. The applicant has approached this Tribunal directly against the order of the disciplinary authority without having undergone the provisions of appeal. Section 20 of the AT Act, 1985 reads as under:-
20. Application not to be admitted unless other remedies exhausted (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. Here, we take note of the fact that the term ordinarily has been used in Section 20(1) implying thereby that there can be exceptions to this Rule at the discretion of the Tribunal for valid reasons to be recorded in writing. No doubt, this Tribunal has been consistent in upholding that the departmental/statutory remedies must be exhausted in compliance to Section 20(1) of the AT Act, 1985 before this Tribunal takes up adjudication. However, we are swayed by the fact that the matter is pending consideration for a substantial length of time. The charge-sheet was first issued on 17.5.1995 and the applicant had superannuated on 30.6.1997. Yet, the matter continues to pend unresolved. Here this Tribunal was confronted with a choice of either remanding the case back to the appellate authority for taking an appropriate decision or deciding the issues on their merit. It could have been well argued that not going through the proper channel of appeal deprives the applicant of another forum which has been statutorily built into the design of the grievance redressal. However, it was for the applicant to adopt this argument. Instead the applicant has filed this OA and his learned counsel has argued for disposal of the case on merit in the first instance. It was in the interest of the speedy and expedient justice that the matter has been heard on merit. This is also backed by at least one precedent to this effect. In case of Mrs. Sandhya Baliga Vs. UOI & Anr. [OA 4061/2013 decided on 10.2.2014] this very Bench has decided that even if the applicant had not completed the formalities required under Section 20, still the OA was heard and decided on merit in view of gravity of the situation. Here, the consequences flowing out of this non-compliance will be decided in co-relation to other issues.
14. Insofar as the 2nd issue is concerned, arguments of the applicant have already been noted that all his actions were covered under the term of circulars issued by the DST and he had been acting under quasi judicial capacity. However, it is to be remarked here that where an officer is acting under quasi judicial capacity, it does not bestow license to run amuck and he has to act within moderation and in the best interest of the Government. In the case of Union of India versus K.K. Dhawan [(1993) 2 SCC 56], the Honble Supreme Court have gone into the issues in depth and have laid down that officers acting under quasi judicial capacity are also subject to scrutiny on the following touchstone, which reads as under:-
28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which Are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."
Moreover, we have carefully perused the departmental proceeding, inquiry report and the impugned order dated 18.8.2011 and are satisfied that each article of charge is well substantiated by the evidence generated during the course of the departmental proceeding. We deem it proper to emphasize here that it is beyond the domain of this Tribunal to go into the merit of the charges per se, as the Tribunal is not a superior appellate authority. The Tribunal is only entrusted with the task of overseeing that the proceedings are not vitiated by the procedural lacunae or violation of rules. There is no mala fide either of law or facts in operation and there is compliance to the rules of natural justice. Hence, all that we can infer here is that dealing of each charge is well reasoned and substantiated by evidence. Accordingly, this issue is decided against the applicant.
15. As regards issue No.3, Rule 14(18) of CCS (CCA) Rules provides as hereunder:-
14 (18). The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. Here, we tend to agree with the report of the departmental proceeding that there has been a regular interaction between the charged official and the inquiry officer, who have been face to face with each other. Moreover, we find that representation submitted by the charged official against the inquiry report does not make any mention of non-compliance to Rule 14(18) of the Rules ibid. Hence, we find that this is making a mere technical view of the procedure. Tenors of justice override minor procedural lacunae. The applicant had full opportunity to make this issue a part of his representation, which he has not done deliberately. Therefore, he is precluded from raising the issue at this stage.
16. For the sake of convenience, we take up the issue Nos. 4 and 5 together. The applicant has relied upon cases of S.K. Kapoor (supra), B.Krunakaran (supra) and D.C. Aggarwal (supra). Of these, we take the case of S.K. Kapoor alone, as it is latest in the series. In this case, the respondent has been dismissed without copy of the report of the UPSC having been made available to him along with the order of the inquiry to enable him to make his representation. The Honble Supreme Court held that this constitutes a part of the settled principles of natural justice and if any material is to be relied upon in departmental proceeding, a copy of the same must be supplied in advance to the charge-sheeted employee so that he has a chance to rebut the same. The Honble Supreme Court also took note of the earlier decisions that Article 320(3)(c) of the Constitution are not mandatory, but went ahead to hold:-
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
17. The judgment rendered in Union of India & Anr. Vs. T.V. Patel, (2007(4) SCC 785 did not take into account the earlier decision of the same Bench in S.N. Narula Vs. Union of India & Anr. (2011)4 SCC 591, binding on the subsequent bench of equal strength and hence, it could not take a contrary view as settled by a series of judgments of the Honble Supreme Court. However, the respondents have referred to the case of Union of India & Ors. Vs. Alok Kumar, (2010)5 SCC 349, wherein the Honble Supreme Court has made a departure from the accepted principle. It had been argued by the learned counsel for the respondents that breach of principles of natural justice was sufficient in itself to cause a prejudice and no other prejudice needed to be proved. However, in this case, the opinion of the Honble Supreme Court has veered to the point that element of de facto prejudice needs to be pleaded and shown specifically. It is only when some mandatory statute has been violated, it would be tantamount to prejudice. For the sake of clarity, the Honble Supreme Court has held as follows:-
83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other de facto prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rules is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.
18. The respondents have also additionally relied upon the recent decision of the Honble High Court in WP(C) No. 4539/2012 dated 15.07.2013 wherein the Honble High Court was faced with the same issue as to whether advice obtained from the UPSC by the competent authority before levying the penalty was required to be supplied to the charged official where the report of the inquiry officer was forwarded to him and not along with the order levying penalty. The Honble High Court, after having referred to the decisions rendered in State of U.P. Vs. Manbodhan Lal Srivastava, AIR 1957 SC 912, T.V. Patels (supra), S.N. Narulas (supra), S.K. Kapoors case (supra) and also to Rule 33 of the CCS(CCA) Rules, 1965, have considered it necessary to go into Article 320(3)(c) which reads as under:-
19. Article 320(3)(c ) reads:
"(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters; Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. In the case of Manbodhan Lal Srivastava (supra), it had been held that the provisions of Article 320(3)(c) of the Constitution are not mandatory and they do not confer any right on a public servant so that absence of consultation or any irregularity in consultation does not afford him cause of action in the court of law. This view has been accepted by the Honble High Court, which have held as under:-
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order passed by the Government.
19. The Honble High Court going into the question of stare decisis and precedent has held as under:-
19. Now, the constitutional vision pertaining to the role of UPSC is to confer upon it an advisory jurisdiction pertaining to disciplinary matters, which is evidenced from the use of the expression 'may' in sub-Article 3 of Article 320 of the Constitution of India. Opinions by UPSC on disciplinary matters are not binding on the Disciplinary Authority which has to apply its own independent mind as was explained in T.V.Patel's case (supra). Now, logic and commonsense guides us that where an opinion has to be sought after Inquiry Officer records evidence and pens a report it would better serve the purpose of the person likely to be affected by such an opinion i.e. the charged officer, if before seeking the opinion his version is obtained and placed before the opinion maker. This would also be a better compliance with the principles of natural justice. That natural justice demands that it be made known to a person whose interest is in issue as to what is the material which would be used by the decision maker would not be attracted in a situation of the kind i.e. the decision maker who is seized with the report of an Inquiry Officer seeks advice of UPSC and the said advice sought is on the report of the Inquiry Officer without the response of the charged officer thereon.
20. This would be our additional reason to go by the law declared by the Supreme Court in T.V.Patel's case which we find is a reasoned opinion. The Honble High Court, therefore, allowed three Writ Petitions by the aforesaid order.
20. Here, we would simply hold that going by the doctrine of stare decisis and precedent, the Honble High Court have applied their judicial mind and have come out with a harmonized interpretation of the conflicting judgments. This Tribunal is bound to abide by the interpretation of the Honble Delhi High Court. In light of the aforesaid view adopted by the Honble High Court, this issue is decided against the applicant.
21. Now coming to the issue No.6 relating to disproportionality, we take note of the fact that the action of the applicant has caused huge losses to the pubic exchequer. The entire country is faced with the problem of probity in public life/official working. The Honble Supreme Court have made ambushed observations of this subject in the case of S.R. Tiwari versus Union of India & Another versus R.K. Singh & Another [2013 STPL 448 SC]. We feel that our penal system and departmental proceedings are not proving sufficient deterrent to such deviant behaviour. Hence, we feel that punishment of reduction of 50% of the pension for all times to come dips on the lenient side. It does not need to be interfered with.
22. In view of the issues referred above, we are constrained to observe that the OA has not sustained on any of the grounds. Therefore, the OA is dismissed without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/