Central Administrative Tribunal - Delhi
Hitesh Jogenderlal Rajpal vs Externel Affairs on 9 November, 2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1772/2023
Orders reserved on: 15.10.2024
Orders pronounced on: 09.11.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Shri Hitesh Jogenderlal Rajpal, Group A
Aged 41 years
S/o Shri Jogenderlal Hansraj Rajpal
R/o B-23, MEA Residential Complex
Dr. S. Radhakrishnan Marg
Chanakyapuri, New Delhi-110021 ...Applicant
(By Advocate: Sh. Aman Bhalla)
VERSUS
1. Union of India
Through Foreign Secretary
Ministry of External Affairs
South Block, New Delhi-110011
2. Secretary
Central Vigilance Commission
Satarkta Bhawan, GPO Complex
Block-A, INA, New Delhi-1100023
...Respondents
(By Advocate: Sh. R.K. Jain)
2
OA No. 1772/2023
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
The applicant, an Indian Foreign Service (IFS) Officer of 2006 batch has approached this Tribunal by way of the captioned Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985 to challenge the Office Memorandum dated 17.06.2022 (Annexure-A/1(i)) vide which respondent no. 1 has proposed to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and further to challenge the communication dated 16.05.2023 (Annexure-A/1(ii)) vide which the recommendations of the DPC in his respect for promotion to Grade-III of IFS for the panel year 2023 has been kept in "sealed cover".
2. In the OA, the applicant has prayed for the following reliefs and interim relief:
"8. Relief Sought
(a) call for records
(a) to quash the impugned Charge Memo dated 17.06.2022 containing the Charge Sheet
(b) Any other order, as may be deemed fit by the Hon'ble Tribunal.3 OA No. 1772/2023
9. Interim orders, if any, prayed for:
Hon'ble Court may kindly direct the respondent to stay the promotion proceedings (in furtherance of DPC recommendation dated 16.05.2023 [ANNEXURE-A/1(ii)] keeping its recommendation in respect of the Applicant in 'sealed cover'" in the lis penden, as applicant will face irreparable loss, balance of convenience also lies in favour of Applicant. Prima facie applicant has fair chance to succeed in the O.A. Moreover no prejudice is likely to be caused to Respondent."
3. The applicant's prayer for grant of interim relief in the form of direction to the respondent no. 1 to stay the promotion proceedings pursuant to recommendation dated 16.05.2023 of the DPC has been denied vide order dated 09.06.2023.
4. Pursuant to notice, a counter reply on behalf of respondent no. 1 has been filed. The applicant has filed rejoinder. Synopsis/written arguments along with copies of a few judgments of this Tribunal, of the Hon'ble High Court of Delhi and also of the Hon'ble Apex Court along with a few circulars of Central Vigilance Commission (CVC) and notification dated 02.06.2017 has been filed on behalf of the applicant. On behalf of the respondents, a compilation consisting of a judgment of the Hon'ble Apex Court in State 4 OA No. 1772/2023 of Madhya Pradesh & Anr. vs Akhilesh Jha & Anr. reported in (2021) 12 SCC 460, one of this Tribunal in OA No. 63/2024 titled Anju Ranjan vs UOI dated 29.05.2024 and a copy of note sheets of the file dealing with the disciplinary proceedings against the applicant (in a sealed cover) have been filed.
5. Notice to respondent no. 2 was also served however, they have chosen not to file any reply and enter their appearance in the matter. Moreover, from the OA it is found that the applicant has not prayed for any relief from the respondent no. 2 and in this view of the matter, the OA was heard keeping in view the pleadings in respect of the applicant and respondent no. 1 and submissions made on their behalf.
6. We have heard the learned counsels for the parties and have also perused the pleadings available on record. We have also gone through the various OMs, circulars and judgments referred to by the learned counsels for the parties in the matter.
7. The facts which emerge from the pleadings on record are that while the applicant was posted as Consul General at Consulate General of India in Edinburgh, Scotland, UK, in the 5 OA No. 1772/2023 year 2019, the respondents received four complaints dated 03.06.2020(Annexure R-1), 02.07.2020 (Annexure R-2), 15.07.2020 (Annexure R-3) and 17.07.2020 (Annexure R-4) through PMOPG portal, followed by I.D. No. dated 31.07.2020 (Annexure R-5) from the PMO forwarding therewith a copy of grievance dated 15.07.2020 received by them from one Sh. R.P. Jaishankar, Edinburgh, Scotland requesting the respondent no. 1 to communicate to them the action taken in the matter. The complaints related to financial irregularities allegedly committed by the applicant in respect of heating boiler at Consul Office in Edinburgh, Consular General's Official residence, repairs and cleaning of the office, money claimed for Republic Day celebrations, money towards encouraging and building good relations in Edinburgh and further towards electricity and gas supply to previous official residence of the Consul General, frequent purchase to buy office supplies, cash withdrawal from office account etc. In the light of such complaints, a preliminary investigation was got conducted through Consul General of India at Edinburgh and the respondent no. 1 requested the complainant vide e- 6 OA No. 1772/2023 mail dated 22.06.2020 and 30.06.2020 to disclose his/her identity alongwith copies of verifiable documents within fifteen days making it clear that in case of default, usual mechanism to deal with anonymous complaints in the Ministry to be taken. The respondent no. 1 received an e-mail dated 21.07.2020 (Annexure R-9) wherein the complainant has informed that his name is R.P. Jaishankar. He is a second generation Indian origin born in England, settled in Scotland and his father and mother are from Chennai and Bengaluru respectively and he preferred not to give any of his British ID proof. In the light of the preliminary inquiry conducted on the basis of the said complaints by HCI, London, the applicant was prematurely repatriated in October, 2020 i.e. just after completion of one year and his request to allow him for some time was not acceded to. Moreover, keeping in view the complaints under reference, the applicant had been prematurely repatriated as an administrative measure.
8. A memorandum dated 18.11.2020 (Annexure A-4) and another dated 23.02.2021 (Annexure A-6) were issued to the applicant and he in response thereto, submitted his reply dated 7 OA No. 1772/2023 21.12.2020 (Annexure A-5) and 15.03.2021 (Annexure A-7) respectively. The respondents vide their communication dated 12.11.2021 referred the matter to CVC i.e. respondent no. 2 who in turn forwarded its first stage advice. In its advice dated 21.02.2022 under reference, the respondent no. 2 has observed that the allegations raised in the complaint are not having any vigilance angle and the lapses pertain to administrative matters and it is to be seen that wherever the matter is of non vigilance nature, the file has to be dealt with at the department level. Further, the department has to take further action on the complaint, based on the clarity as to whether the allegations derived are based on anonymous complaint or is the outcome of independent inspection. With such observations, vide memorandum dated 21.02.2022 (Annexure A-8), returned the file to respondent no. 1 for further necessary action. However, by referring to a few allegations, as available in the aforesaid complaints under reference, a proposal was made before the disciplinary authority to disagree with the observations of the CVC to seek opinion of the Department of Personnel and Training (DoP&T). On receipt of the necessary approval to 8 OA No. 1772/2023 differ with the advice of the CVC, the respondent no. 1 forwarded the record to DoP&T to tender its advice along with further necessary proposed course of action. However, the DoP&T vide its OM dated 19.05.2022 (Annexure R-6) returned the file to respondent no. 1 holding that in view of the observations of the CVC, Ministry of External Affairs i.e. respondent no. 1 has to decide/take a view in the matter and there is no disagreement between the CVC and the Disciplinary Authority (DA) in the instant case. However, the DA has approved initiation of major penalty under Rule 14 of the CCS (CCA) Rules, 1965 against the applicant and has approved the draft memorandum vide order dated 11.06.2022 leading to issuance of the impugned charge memorandum dated 17.06.2022 (Annexure A/1(i)) which consists of ten article of charges which read as under:
"Statement of article of charge framed against Shri Hitesh J. Rajpal, Director (CE), Ministry of Faterual Affairs, New Delhi.
ARTICLE I That on 17.04.2020, Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General (CG), shifted from his old official residence at 2, Greenhill Gardens, 9 OA No. 1772/2023 Edinburgh, EH10 4BW, to his new official residence at 98, Inverleigh Place, Edinburgh, EH3 5PA during strict lock down prevalent in Edinburgh on account of Covid 19 pandemic The rental value of the property at 98, Inverleigh Place, Eainburgh, EH3 5PA was GBP 3095.00 per month, but Shri Hitesh J. Rajpal, hired the same accocomodation, from 17.04.2020 to 31.10.2020, at an inflated rate of GBP 5890.00 per month, which was being paid from the funds allocated to the Post, by Government of India, thereby causing pecuniary loss to the Government of India to the tune of GBP 18,033.16, as the landlord of the accommodation under reference confirmed receipt of rent @ GBP 3095/-per month from 17.04.2020 16 30.09.2020 and @ GBP 3156.00 for the month of October 2020.
By the above mentioned acts, the said Shri Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute integrity, lack of devotion to duty, conduct unbecoming of a Government servant; failed to maintain high ethical standards and honesty; failed to maintain accountability and transparency; has misused his position as civil servant and took decisions in order to derive financial or material benefits for himmelf; has acted contrary to law, rules, regulations and established practices; has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE II That the lease agreement found enclosed at Annexure H of response dated 21.12.2020 received from Shri Hitesh J. Rajpal, to the memorandum No Q/Vig/842/03/2020 dated 18.11.2020 issued by Vigilance Unit is forged. On the basis of this lease agreement Consulate 10 OA No. 1772/2023 General of India, Edinburgh, was incurring an expenditure of GBP 5890.00 towards rent, on a monthly basis, from 17.04.2020 το 31.10.2020, in respect of the accommodation 98, Inverleigh Place, Edinburgh, EH3 5PA, occupied by Shri Hitesh J. Rajpal, against its actual rent value of GBP 3095.00, By the above mentioned acts, the said Shri Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute integrity; lack of devotion to duty; conduct unbecoming of a Goverament servant; failed to maintain high ethical standards and honesty; failed to maintain accountability and transparency; has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself; has acted contrary to law, rules, regulations and established practices; has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964 ARTICLE III That the said Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General, was involved in irregular hiring of services of M/s Tantivy Services, which charged GBP 3720/- for shifting house hold effects and furniture iteams of Shi Hitesh J. Rajpal from his old official residence at 2, Greenhill Gardens, Edinburgh, EH10 4BW, to his new official residence at 98, Inverleigh Place, Edinburgh, EH3 5PA. The two properties are barely 5 Kms apart. No quotations were obtained from M/s Tantivy Services. The invoice No 120 dated 17/04/2020, submitted by M/s Tantivy Services, at the Post, for receiving the above payment appears to be ficticious as details such 11 OA No. 1772/2023 as address, telephone number, mobile number etc of the firm are not mentioned therein The registration number of M/s Tintivy Services is not available in the Companies House website.
By the above mentioned acts, the said Shri Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute integrity; lack of devotion to duty; conduct unbecoming of a Govemment servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency; has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself; has acted contrary to law, rules, regulations and established practices; has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE IV That the said Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General, misappropriated Special Entertainment Grant, sanctioned by the Ministry of External Affairs, New Delhi, for celebration of Republic Day 2020 in Edinburgh, to the extent of GBP 3490.00 by submitting, fictitious invoices of a non-existent shop, namely, M/s Konkana Caterers, while settling an advance of GBP 5578.24 drawn by him for the purpose mentioned above.
By the above mentioned acts, the said Shri Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute integrity; lack of devotion to duty; conduct unbecoming of a Goveminent servant; failed to maintain high ethical standards and honesty, falled to maintain accountability and transparency; has 12 OA No. 1772/2023 misused his position as civil servant and took decisions in order to derive financial or marerial benefits for himself, has acted contrary to law, rules, regulations and established practices; has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE V That the said Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General, undertook 10 (ten) local tours with his wife and claimed inadmissible Daily Allowance in respect of his wife.
By the above mentioned acts, the said Shri Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute integrity, lack of devotion to duty, conduct unbecoming of a Government servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency; has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself and his family; has acted contrary to law, rules, regulations and established practices, has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE VI That the said Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General, was involved in approving payment of GBP 1702.50 to M/s Prime Facilities, for 13 OA No. 1772/2023 cleaning the Chancery premises, even though the invoice furnished by the company for receiving payment from the Post was not genuine.
By the above mentioned acts, the said Shit Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute integrity, lack of devotion to duty, conduct anbecoming of a Government servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency, has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself; has acted contrary to law, rules, regulations and established practices; has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE VII Consulate General of India, Edinburgh, hired the services of one Ms. Bhawana S. Pateliya for the period 18.02.2020 to 21.02.2021, for cleaning the office premises, when the regular cleaner was on annual leave. In terms of the Post's Vr No 860 dated 28.02.2020 an amount of GBP 525.00 was due to Ms. Pateliya out of which she received only GBP 240.00. Out of the remaining amount due to Ms. Pateliya, GBP 119.96 was spent for purchasing 4 (four) professional cordless electric hot plates for delivery at the residence of Shri Hitesh J. Rajpal, then Consul General and GBP 165.00, was spent on Indian students in crisis due to lock down. Thus portions of the salary due to Ms. Bhawana S. Pateliya, were used to finance different expenses which included expenses for the residence of Shri. Hitesh Rajpal, then Consul General.
14OA No. 1772/2023
By the above mentioned acts, the said Shri Hitesh J. Rajpal. Director (CE), has exhibited lack of absolute megrity, lack of devotion to duty; conduct unbecoming of a Government servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency, has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself and his family, has acted contrary to law, rules, regulations and established practices, has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE VIII That the said Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General, and his wife used to undertake trips for purchasing dining items at Government expenses for personal use.
By the above mentioned acts, the said Shri Hitesh J. Rajpal. Director (CE), has exhibited lack of absolute megrity, lack of devotion to duty; conduct unbecoming of a Government servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency, has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself and his family, has acted contrary to law, rules, regulations and established practices, has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
15OA No. 1772/2023
ARTICLE IX That the said Shri Hitesh J. Rajpal, Director (CE), while posted in Consulate General of India, Edinburgh, as Consul General, was involved in irregular/suspicious payment of GBP 1625.00 to M/s Focus Heating Scotland, owned by one Ms. Poonam Gupta, out of which GBP 365.00 were spent on expenditure on plumbing/repair work in the Chancery, GBP 710.00 were spent for expenditure of the boiler at the Chancery; GBP 550.00 were spent for expenditure towards the repair of blocked drainage at the Chancery.
By the above mentioned acts, the said Shri Hitesh J. Rajpal. Director (CE), has exhibited lack of absolute megrity, lack of devotion to duty; conduct unbecoming of a Government servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency, has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself; has acted contrary to law, rules, regulations and established practices, has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964.
ARTICLE X That Shri Hitesh J. Rajpal, Director (CE), while posted it Consulate General of India, Edinburgh, as Consul General, was involved, in approving irregular/suspicious paymem of GBP 1747.00, to M/s Watt Roofing and Building Services, for carrying out repair of the roof and white washing of patches in respect of the previous residence occupied by 16 OA No. 1772/2023 Shri Hitesh Rajpal, viz 2. Greenhills Garden, Edinburgh. Initially, Shri Rajpal, demanded an amount of GBP 1747.00 in cash from Ms. Luisa Lakra, which she refused to part with, as Shri Rajpal, failed to provide any receipt from the firm confirming completion of work. Later on Shri Hitesh J. Rajpal, directed Ms. Luisa Lakra, to pay GBP 1750.00 to one Mr. Anshu Ralhan, owner of M/s Hotel all nU Ltd, for making arrangments for students, in distress due to lockdown on account of Covid-19. Ms. Lakra, drew GBP 1747.00 from the Chancery account and kept the same in the office and paid GBP 1747.00 from her personal account to Mr. Ralhan. Mr. Anshu Ralhan, confirmed receipt of GBP 1747.00 from Ms. Lusia Lakra, but he stated that no services were rendered by him to the distressed students on the directions of Shri Hitesh J. Rajpal. The four invoices totalling GBP 1755.00, raised by Mr. Ralhan, on the directions of Shri Hitesh J. Rajpal, were not genuine.
By the above mentioned acts, the said Shri Hitesh J. Rajpal, Director (CE), has exhibited lack of absolute megrity, lack of devotion to duty; conduct unbecoming of a Government servant; failed to maintain high ethical standards and honesty, failed to maintain accountability and transparency, has misused his position as civil servant and took decisions in order to derive financial or material benefits for himself, has acted contrary to law, rules, regulations and established practices, has failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violating Rule 3(1)(i), (ii),
(iii), (vi), (ix), (xv), (xviii) and (xxi) of CCS (Conduct) Rules, 1964."
9. The applicant requested for supply of certain documents however, the same was rejected. In view of the denial of the 17 OA No. 1772/2023 charges by the applicant, the Inquiry Officer (IO) and Presenting Officer (PO) were appointed vide order dated 17.10.2022. The preliminary hearing was held before the IO on 06.01.2023. In view of the request by the IO for being discharged from the role of Inquiring Authority, appointment of another IO was approved by the DA vide its order dated 29.06.2023. The inquiry remained at the preliminary level and in view of the request of the second IO, proposal for appointment of a new IO has been submitted for approval, however, the Disciplinary Authority vide its order dated 06.05.2024 ordered to continue with the current IO.
10. As noted hereinabove, aggrieved by the impugned charge memorandum and the decision of the respondent no. 1 to keep the recommendation of the DPC for promotion to the applicant in Grade-III of IFS for the panel year 2023 in a sealed cover, the applicant has approached this Tribunal.
11. Learned counsel for the applicant has argued that the allegations as in the impugned memorandum have been issued based on the report/preliminary inquiry conducted by the respondent no. 1 on the basis of anonymous/pseudonymous 18 OA No. 1772/2023 complaint(s) and not on the basis of findings of any independent inspection, the impugned charge memorandum is not sustainable in law in view of the circulars/OMs dated 05.10.1999, 25.11.2014, 27.04.2015, 07.03.2016, 09.09.2020, 24.09.2020 and 21.02.2022 and order/judgment of this Tribunal dated 17.02.2009 in OA No. 856/2008 titled Shri Karamvir Singh vs Union of India & Anr. He has also placed reliance on order/judgment of the Hon'ble High Court of Delhi dated 22.01.2007 in WP(C) No. 507/2007 titled Union of India vs. Vijay Khanna & ors. It is also pleaded on behalf of the applicant that action of the respondents is in violation of the mandatory provisions as envisaged under Section 8(1)(h) and 17(3) of the CVC Act, 2003. 11.1 Learned counsel for the applicant has argued that the impugned OM is result of prejudice, premeditated and biased action of the respondents inasmuch as it had failed and neglected to follow the prescribed procedure on the subject not once but on multiple occasions.
11.2 Another argument advanced on behalf of the applicant is that the departmental proceeding has not been 19 OA No. 1772/2023 initiated within the time limit as prescribed by the CVC and DoP&T vide their circulars/OMs issued from time to time and the delay is inordinate and unexplained and therefore also the same is not sustainable. The learned counsel for the applicant has placed reliance on the judgment of the Hon'ble High Court of Delhi dated 19.09.2002 in Than Singh vs. Union of India & Ors. reported in (2003) 104 DLT 25 (DB). 11.3 Learned counsel has argued that there is unexplained inordinate delay in not only initiation but also in conclusion of the impugned disciplinary proceedings and, therefore, the same deserves to be set aside. He has submitted that the inquiry has not been conducted within the time frame as ruled by the Hon'ble Apex Court in the case of Prem Nath Bali vs. Registrar, High Court of Delhi & Anr., reported in (2015) 16 SCC 415 as well as within the time frame notified by the Government of India vide GSR 548(E) dated 02.06.2017.
12. On the other hand, learned counsel for the respondents by referring to the assertions made in the counter reply has argued that the allegations from the complaint received 20 OA No. 1772/2023 indicated lack of absolute integrity, serious financial irregularities by illegal/suspicious payments. The allegations were grave and pertaining to lack of integrity and after receipt of the reply from the CVC, the competent authority found the allegations against the applicant serious in nature involving lack of integrity and financial irregularities not only from the complaints but also on the basis of reports of preliminary enquiry, that the decision was taken to differ with the first stage advice of the CVC. Learned counsel for the respondents has placed reliance on judgment of the Hon'ble Apex Court in the case of State of Madhya Pradesh and another vs. Akhilesh Jha and Another, reported in (2021) 12 SCC 460 and order of this Tribunal dated 29.05.2024 of this Tribunal in OA No. 63/2024 titled Anju Ranjan vs. Union of India & another.
13. We have considered the submissions made by the learned counsels for the parties.
14. In the aforesaid facts and circumstances, the issues which emerge before us for adjudication are as under: 21 OA No. 1772/2023
(i) whether the complaints under reference against the applicant deserve to be held as anonymous/pseudonymous?
(ii) if the complaints under reference are held to be anonymous/pseudonymous, the impugned inquiry could have been initiated against the applicant?
(iii) whether the impugned memorandum is result of non-
application of mind?
(iv) whether the impugned memorandum dated 17.06.2022 is vitiated and/or the proceedings in pursuance thereto have lapsed for the delay?
15. Now, we consider the aforesaid issues in the light of the facts of the case, the relevant OMs, Rules and law on the subject.
16. The following four complaints have been received by the respondent no. 1 against the applicant:
Name of Date of Address of Mobile No./Email complainant complaint complaint R P Jaishankar 03.06.2020 19/1 East Pilton 7823844324 / Farm Crescent, [email protected] Edinburgh Same as above 02.07.2020 11/2 East Pilton 7693489493/rpjaishankar Farm Rigg @yahoo.com Ediburgh Same as above 15.07.2020 16/7 East Pilton 0044786930759/rpjaishan Rigg Edinburgh [email protected] Same as above 17.07.2020 16/3 East Pilton 7956932038/rpjaishankar Rigg Edinburgh @yahoo.co.uk 22 OA No. 1772/2023 16.1 The aforesaid four complaints were followed by an ID note dated 31.07.2020 from the PMO requesting the respondent no. 1 to communicate the action taken in the matter.
16.2 The aforesaid complaints indicate that the address(es) and mobile number(s) of the complainant are different in all the said four complaints. The complainant's e-mail address is also different in the fourth complaint. As all the complaints were without signature and without disclosing the date etc., the respondent no. 1 has treated the said complaints as anonymous and has required the complainant vide its communications dated 22.06.2020 and 30.06.2020 (Annexure-8 of the counter reply) to disclose his/her identity and also own/disown the complaint within fifteen days of receipt of the said e-mail dated 30.06.2020 The said communication dated 30.06.2020 also records that as per standard procedure, the complainant needs to verify his/her identity and also own/disown the complaint failing which, no action is required to be taken on anonymous complaints which do not carry both the name and address of the complainant. In response thereto, beyond 23 OA No. 1772/2023 fifteen days, the respondent no. 1 received an e-mail dated 21.07.2020 wherein the complainant has categorically stated that "I prefer not give any of my British ID proof." The complainant has also not given any reason for there being different address(es) and mobile number(s) in different complaints nor the respondents have verified the veracity of the complainants identity and/or the complainant's address(es).
16.3 Paragraph 3.10.4 and 3.10.5 of the Vigilance Manual (updated 2021) of CVC read as under:
"3.10.4 Any complaint that does not bear the name and address of the complainant is an anonymous complaint. No action is to be taken on anonymous complaints by the Ministries / Departments / Organisations, irrespective of the nature of allegations, and such complaints should be filed. Such complaints shall not be treated as registered complaints.
3.10.5 Similarly, no action is to be taken by the Ministries / Departments / Organisations in the case of complaints which are treated as pseudonymous. A complaint that does not bear the full particulars of the complainant or is unsigned or is not subsequently acknowledged by a complainant as having been made is a pseudonymous complaint. Pseudonymous complaints will be referred to the complainant for confirmation / genuineness verification and if no response is received from the complainant within 15 days of sending the complaint, a reminder will be sent. After waiting for 15 days 24 OA No. 1772/2023 of sending the reminder, if still no response is received, the said complaint may be filed as pseudonymous by the concerned Ministry / Department. The relevant Circulars on the subject are CVC's Circular No. 07/11/2014 dated 25.11.2014, DoPT OM No. 104/76/2011- AVDs.I dated 18.10.2013 and CVC Circular No.03/03/16 dated 07.03.2016.
16.4 From the aforesaid facts, it is evident that the complaints were without signature and in all the four complaints, the complainant has given different address(es) and mobile number(s). In the fourth complaint, even the e-mail address is different. Moreover, the complainant has refused to give any of his British ID proof. It is not the case that the complainant has refused to give only his British ID proof but a case where the complainant has not given any proof of his identity. Within a span of less than two months during which he had made the four complaints, he had given different address(es) and mobile numbers. Besides, the e-mail in the fourth complaint is different from that in other three complaints.
16.5 As per "The Law Lexicon, The Encyclopaedic Law Dictionary, 3rd Edition, 2012", "anonymous" means "Nameless; without name; a term applied to the reported cases in which the names of the parties are not given, or which 25 OA No. 1772/2023 are without the usual title. (Burill L. Dictionary). Often abbreviated as "anon." "An", or "A." (Wharton). An anonymous publication is a publication withholding the name of the author." and "pseudo" means "Sham (as) in Pseudo-
christian; Pseudo prophet" and "Pseudonym" means "Fictitious name assumed, as by an author. [S. 23(3)(a), Copyright Act (14 of 1957)]; A fictitious name or identity."
Moreover, a perusal of the very first note dated 24.06.2020 of respondent no. 1 on the subject indicates that the respondent no. 1 has itself treated the complaint as "anonymous". From the communication dated 30.06.2020 of respondent no. 1 (Annexure R-8) under reference, it is apparent that respondent no. 1 has itself treated the complaint(s) as "anonymous". Thus, in view of these facts, relevant OMs of the CVC and the dictionary meaning, we are of the firm view that the complaints under reference are anonymous/pseudonymous.
17. In view of the above, the answer to the issue at paragraph 14(i) as enumerated above is 'yes'.
18. With regard to the issue at paragraph 14(ii), it needs no detailed discussion by us inasmuch as such issue had come for 26 OA No. 1772/2023 consideration before a Co-ordinate Bench of this Tribunal in OA No. 2698/2004 titled Vijay Khanna vs Union of India & Anr. dated 20.07.2005. This Tribunal after considering various OMs and judgment of the Hon'ble High Court of Madras in the case of P.M. Ramalingam vs. The DG CRPF, WP(C) No. 11543 & 11544/2000 decided on 26.09.2003 has held in paragraph 22 as under:
"22. In the instant case also it is seen that though the complaint was dated 18.2.1997 and 2.4.1997, preliminary show cause notice was issued to applicant only on 18.7.2001 i.e. after the instructions dated 29.6.1999 had been issued by the CVC. Therefore, action was clearly taken against the applicant after the instructions of CVC was issued. Therefore, the facts of the present case are similar to that of P.M. Ramalingam vs. DG. CRPF case (supra). We are only court of first instance. Therefore, are bound by the findings given by the Hon'ble High Court of Madras. Counsel for respondents had faintly argued that this is a judgment given by the Single Bench of the High Court but whether it is a Single Bench or DB judgment, it does not make any difference. Any judgment given by the Hon'ble High Court is binding on us and if Tribunal has different views it can neither ignore the judgment given by High Court nor over rule the judgement. Therefore, keeping in view the judgment given by the Hon'ble High Court as mentioned above, the present OA has to be allowed on this ground alone. Since chargesheet was issued on pseudonymous complaint and since CVC has also stated that no action could be taken on anonymous/pseudonymous complaints, 27 OA No. 1772/2023 therefore, the charge sheet is quashed and set aside. The OA is accordingly allowed. No order as to costs."
18.1 However, the respondent no. 1 has placed reliance on the OM dated 18.10.2013 (Annexure R-7) to contend that if a complaint contains verifiable allegations, the administrative Ministry/Department may take cognizance of such anonymous/pseudonymous complaint with the approval of the competent authority. Further, in the light of the ID note dated 31.07.2020 of the PMO, preliminary inquiry was got done however, the respondent no. 2 (CVC) has itself taken into consideration the OM dated 18.10.2013 under reference and has held in its circular No. 12/09/20 dated 24.09.2020 that no action is required to be taken on anonymous/pseudonymous complaints. A Co-ordinate Bench of this Tribunal at Mumbai in order/judgment dated 02.03.2023 in OA No. 1050/2022 titled Sachin Ashok Patil vs. UOI & Ors. has considered the said OMs dated 18.10.2013 and 18.06.2013, further reviewed by respondent no. 2 herein vide circular dated 24.09.2020 under reference and by placing reliance on the order/judgment dated 30.11.2022 of a Division Bench of the Hon'ble High 28 OA No. 1772/2023 Court of Bombay in Union of India & Ors. vs. Veerabhadram Vislavath son of Bhav Singh Vislavath (Writ Petition (L) No. 33749/2022), has ruled in paragraphs 10-14 as under:
"10. The Central Vigilance Commission vide its circular No.12/09/20 dated 24.09.2020 invited attention of Ministries/Departments/Public Organizations and informed that in view of DoPT's above OM, no action is required to be taken on anonymous/pseudonymous complaints. The letter reads:-
"Attention is invited to the DoPT's OM and the Commission's Circular mentioned above wherein it was prescribed that 'no action would be taken on anonymous/pseudonymous complaints' by Ministries / Departments/Organisations and such complaints should be filed.
2. The Commission has observed instances wherein Departments/ Organisations are taking cognizance of anonymous complaints, despite strict guidelines issued by DoPT and the CVC. Such non- compliance / violation of guidelines by the concerned authorities would be viewed seriously.
3. All CVOs/ Administrative Authorities should ensure strict compliance to the above instructions.
Thus, the DoPT defined the "anonymous complaints", which do not carry both name and address of the complainant.29 OA No. 1772/2023
11. The aforesaid OM further makes it clear that anonymous/pseudonymous complaints are to be ignored and no action against the government servant should be taken in pursuance of such complaints.
12. As stated earlier, admittedly, the first complaint is under the false name of Ganesh Sawant, Senior Reporter, Nashik and the second complaint is anonymous, i.e., which do not carry any name, address, etc of the complainant. In terms of the aforesaid OMs and circulars, the respondent No.4 - Inspector General of Police, Nashik Range, Nasik ought to have ignored this complaint. However, despite this position, he inquired into the complaint and prepared the inquiry report, which was initially sent to the Director General of Police, Government of Maharashtra and, therefore, the impugned communication was issued.
13. In our considered view, the action of respondent No.4 - Inspector General of Police, Nashik Range, Nasik to initiate inquiry on the basis of anonymous complaint is without jurisdiction. The report prepared in pursuance to anonymous complaint has no value and cannot be acted upon.
14. In Veerabhadram Vislavath's case (supra), the respondent's suspension was extended for further period of 180 days in pursuance of the preliminary inquiry report dated 02.03.2022. On the basis of this preliminary inquiry report, a decision was taken on 28.04.2022 to extend the respondent's suspension. The inquiry report dated 02.03.2022 was prepared on the basis of anonymous complaint, wherein it was alleged that the respondent had indulged himself in further acts of moral turpitude by spending nights in hotels with a number of call girls / prostitutes / models and that he debauched and of corrupt character. The Division Bench of the Bombay High Court, by making the 30 OA No. 1772/2023 observations in paragraph 24 of the judgment, observed that the suspension of the applicant was in pursuance of the preliminary inquiry report dated 02.03.2022 and the same has to be regarded as unworthy of being given any credence in view of the instructions/ circulars of the DoPT/CVC. Thus, the Bombay High Court held that the report based on anonymous complaint cannot be taken into consideration.
In our considered opinion, the decision of the Bombay High Court is preferably applicable to the facts and circumstances of the present case."
19. In view of the preceding paragraph, answer to the issue as enumerated at paragraph 14(ii) above is 'No'.
20. With regard to the issue as enumerated at paragraph 14(iii), we at the cost of repetition may note that the respondent no. 1 from the very beginning has treated the complaints received against the applicant as anonymous complaints. They have requested the complainant vide their communication dated 30.06.2020 (Annexure A-8 to the counter reply) for disclosure of his/her identity as per the standard procedure and/or in terms of the stipulation made in Government of India instructions, no action is required to be taken on anonymous complaint. Though the complainant has categorically replied to respondent no. 1 that he would prefer 31 OA No. 1772/2023 not to give any of his British ID proof; keeping in view the ID note dated 31.07.2020, the respondent no. 1 has got the preliminary inquiry conducted pursuant to the said anonymous complaints. In the counter reply, the respondent no. 1 has pleaded that they had gone for such action keeping in view the ID note from the PMO under reference and in the light of the provisions of paragraph 3(iii) of OM dated 18.10.2013 (Annexure A-7 to the counter of respondent no. 1). However, they have ignored the provision of subsequent circular of respondent no. 2, referred to in paragraph 16.3 above. We may further note that though the respondent no. 2 in its first stage advice vide OM dated 21.02.2022 had opined that the allegations levelled in the complaint(s) are not having any vigilance angle and lapse pertains to administrative matters. Administrative action in the matter has been taken by the respondent no. 1 by repatriating the applicant from the post of Consul General in Edinburg, Scotland, UK. Moreover, by precisely quoting the same allegations, the respondent no. 1 differed from the first stage advice of the CVC. When the matter was further referred to by the respondent no. 1 to the 32 OA No. 1772/2023 DoP&T, the DoP&T has returned the same to respondent no. 1 with observation that there is no disagreement between the CVC and the DA in the subject case. At the cost of repetition, we note that CVC had found no vigilance angle involved in the matter. The DoP&T has not found any disagreement between the respondents no. 1 and 2, however, the respondent no. 1 has gone ahead in issuing the impugned charge memorandum and proceedings flowing therefrom. This clearly indicates non application of mind.
21. Accordingly, the answer to the issue as enumerated in paragraph 14(iii) above, is 'yes'.
22. With regard to the issue as enumerated at paragraph 14(iv), we may note that the model time limit for initiation and conclusion of departmental inquiries has been laid down by the respondent no. 2 vide its circular No. 02/01/2016 dated 18.01.2016 and the same reads as under:
"Model Time Limit for Departmental Inquiries as laid down in Circular No. 8(1)(g)99(3) dated 03.03.1999 Stage of Departmental Inquiry Time Limit prescribed Fixing date of Preliminary Hearing and Within four weeks inspection of listed documents, submission of Defence documents/witnesses and nomination of a Defence Assistant (DA)(if not already 33 OA No. 1772/2023 nominated) Inspection of relied upon documents/submission of list of DWs/Defence documents/Examination of relevancy of Defence documents/DWs, procuring of additional documents and submission of certificates confirming inspection of additional documents by 3 months CO/DA Issue of summons to the witnesses, fixing the date of Regular Hearing and arrangement for participation of witnesses in the Regular Hearing Regular Hearing on Day to Day basis Submission of Written Brief by PO to 15 days CO/IO Submission of Written Brief by CO to IO 15 days Submission of Inquiry Report from the 30 days date of receipt of written Brief by PO/CO 22.1 The respondent no. 2 vide circular No. 18/12/20 dated 14.12.2020 has further emphasized the importance of expeditious initiation and conclusion of the departmental proceedings and has held in paragraphs 3-5 as under:
"3. The delay in completion of departmental proceedings on the part of the organization concerned has also attracted adverse comments from the Hon'ble Supreme Court of India in Civil Appeal No. 958 of 2010 Prem Nath Bali vs. Registrar, High Court of Delhi & Anr. in its judgment dated 16.12.2015.
4. In continuation of CVC's guidelines dated 23.05.2000 and DoPT OM dated 14.10.2013, the Commission therefore, to ensure prompt/timely action disciplinary matters where major penalty proceedings have been initiated/are to be initiated, the following time limit may be adhered to:-34 OA No. 1772/2023
Sl. No. Stage of disciplinary action Time Limit
1. Issue of Charge Sheet to All the required the stage of appointment actions may be of IO and PO completed within a period of 02 months from the date of issue of First Stage Advice of the Commission.
2. Conducting departmental The inquiry report inquiry and submission should be submitted of report by the Inquiry within 6 months from officer (I.O.) the date of appointment of inquiry officers
3. Overall additional time In addition to the for all/any of the above above time limit, a stages of disciplinary period of 1 more proceedings, due to some month may be taken unavoidable/unforeseen if required. circumstances.
5. The Commission desires that the above time limit should be adhered to strictly by the authorities in the organisations concerned. Since initiation and conduct of disciplinary proceedings is within the domain of the disciplinary authority concerned, the CVOs may bring the above guidelines of the Commission to the notice of the competent authorities for compliance."
22.2 We had occasion to deal with such issue in OA No. 937/2024 titled Vikram Bhasin vs. Union of India & Anr. dated 23.10.2024 where in the light of the various circulars of the CVC and the judgments of the Hon'ble High Court of Delhi, we have held in paragraphs 20-23 as under:
"20. The judgment in the case of Hari Singh (supra) has been considered by the Hon'ble High Court of Delhi in the case of Union of India & Ors. vs J.P. Singh (supra) also.
Occasion came before the Hon'ble High Court of Delhi to consider as to whether inordinate 35 OA No. 1772/2023 unexplained delay will cause prejudice to the accused employee or not, in the case of Ritu Chaudhary (supra) and the Hon'ble High Court in paragraph 19 of the said judgment, has ruled as under:
"19. It is fairly well-settled that in inordinate unexplained delay itself causes prejudice to an accused employee. In each of the present cases there was no valid explanation for the inordinate delay in initiating the preliminary enquiry."
21. Expeditious initiation of disciplinary proceedings if any and conclusion thereof has been emphasized by the CVC subsequently as well vide their circular No. 18/12/20 dated 14.12.2020 and in such circular, the Commission has observed as under:
"The Central Vigilance Commission as part of its functions of exercising superintendence over the vigilance administration of the organization covered under its advisory jurisdiction and for bringing about improvement and efficiency in the same, has been emphasizing on timely initiation and completion of the disciplinary proceedings, wherever required. The Commission is of the view that any delay in initiation or finalization of the disciplinary action is neither in the interest of the organization, nor that of the official concerned."
21.1 The Commission has also provided that all the required actions may be completed within a period of 02 months from the date of issue of First Stage Advice of the Commission.
22. Further, a Division Bench of the Hon'ble High Court of Delhi vide order/judgment dated 36 OA No. 1772/2023 05.07.2022 in WP(C) No. 2267/2022 with WP(C) No. 2590/2022, has held in paragraph 15 as under:
"15. Even if the CVC Circular is arguendo assumed to be directory and not mandatory- as sought to be canvassed by the Respondent-
there must exist cogent, persuasive and compelling reasons for non-compliance or non-
adherence of the same. The Respondent cannot merely decide not to comply with the CVC circular, without persuasive and tenable reasons, as such a course of action would not only be impermissibly capricious and arbitrary action on the part of the Respondent but also render the said CVC circular as nugatory rather than merely directory as contended."
22.1. Further, in paragraph 23 of the said order/judgment, the Hon'ble High Court has ruled that the Union of India, being a 'State' under Article 12 of the Constitution is bound to act in a fair non-discriminatory, reasonable and non-capricious manner.
23. At the cost of repetition, we may reiterate that in the case in hand, there is no explanation at all as to what prevented the respondents from adhering to the time limit prescribed by the nodal department i.e DoP&T and the CVC in issuance of the impugned charge memorandum. In this view of the matter and in the light of the law settled by the Hon'ble High Court in cases referred to hereinabove, we are of the considered view that the impugned charge memorandum is not sustainable in law for there being unexplained inordinate delay."37 OA No. 1772/2023
22.3 In the present case, admittedly the complaint dated 03.06.2020 was received followed by other three complaints i.e. 02.07.2020, 15.07.2020 and 17.07.2020. Neither the veracity of the said complaints and/or the identity of the complainant could be ascertained within the stipulated time frame of fifteen days nor further action within the time as stipulated under the circular(s) of respondent no. 2 could be taken inasmuch as charge memorandum has been issued only on 17.06.2022. Further, there is no explanation on behalf of the respondents for this inordinate delay of approximately two years in issuance of the charge memorandum. 22.4 No explanation at all has been furnished by the respondents for the delay in issuance of the charge memorandum and the time line stipulated by the CVC and the DoP&T in their guidelines issued from time to time have been flouted. The same would be sufficient to jeopardise the defence of the applicant.
22.5 With regard to the issue as enumerated at paragraph 14(iv), we note that the impugned memorandum is dated 17.06.2022. On denial of allegations by the applicant, IO and 38 OA No. 1772/2023 PO were appointed vide order dated 17.10.2022. The preliminary hearing was held before the IO on 06.01.2023. In view of the request from the IO, appointment of another IO was approved on 29.06.2023. The inquiry remained at the preliminary level. Again at the request of the IO, the matter was processed for approval for appointment of a new IO, however, the DA approved on 06.05.2024 for the current IO to continue. We have found from the records that, when the inquiry could not be completed within time frame of six months' in terms of provisions of Rule 14(24) of the Rules, neither extension of time has been sought by the IO nor the same has been granted by the DA to continue the inquiry when the same could not be completed within six months. Despite there being no restraint from this Tribunal and/or the disciplinary authority, the inquiry has not concluded till date. These facts clearly indicate that the inquiry has not been concluded within the time as stipulated by the CVC and DoP&T, notified vide circular No. 18/12/20 dated 14.12.2020 (referred to in paragraph 22.1 above). The Hon'ble Apex 39 OA No. 1772/2023 Court in paragraph 33 in the case of Prem Nath Bali (supra) has ruled as under:
"33) Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must take sincere endeavour to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to concluded due to certain unavoidable causes arising the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
The facts as recorded hereinabove clearly indicate that the inquiry has not been concluded in consonance with the time stipulated by the Hon'ble Apex Court in the case of Prem Nath Bali (supra) as well.
By way of notification dated 02.06.2017 vide GSR 548(E) (supra), sub-rule 24 has been inserted under Rule 14 of the CCS (CCA) Rules, 1965 (hereinafter referred to as the Rules) and said Rule 14(24) reads as under:
"(24) (a) The Inquiring Authority should conclude the inquiry and submit his report within a period of six months from the date of receipt of order of his appointment as Inquiring Authority.40 OA No. 1772/2023
(b) Where it is not possible to adhere to the time limit specified in clause (a), the Inquiring Authority may record the reasons and seek extension of time from the disciplinary authority in writing, who may allow an additional time not exceeding six months for completion of the Inquiry, at a time.
(c) The extension for a period not exceeding six months at a time may be allowed for any good and sufficient reasons to be recorded in writing by the Disciplinary Authority or any other Authority authorised by the Disciplinary Authority on his behalf."
22.6 The facts recorded hereinabove go on to show that the departmental inquiry has not been initiated within the time stipulated by the CVC and/or the DoP&T. The impugned proceedings have also not been concluded within the time stipulated under Rule 14(24) of the Rules despite passage of around two years after appointment of the IO and PO in the matter. No extension of time is found to have been sought by the IO and/or granted by the DA.
23. In the light of what has been noted in the preceding paragraphs, answer to the issue enumerated at paragraph 14(iv) is 'yes'.
24. We have also considered the submissions made by the learned counsel for the respondents. We have already 41 OA No. 1772/2023 recorded hereinabove that once all the allegations against the applicant in the complaints under reference were sent to respondent no. 2 and respondent no. 2 had opined in its first stage advice that there was no vigilance angle involved and the DoP&T has found no difference of opinion, the submission on behalf of the respondents that the complaint indicated lack of integrity, financial irregularities etc., would not be sustainable.
25. We have also gone through the judgment dated 29.05.2024 in Anju Ranjan (supra) of this Bench. We find that in the said case, Audit had raised queries inter alia on deviations from guidelines regarding making of payments exceeding Rs. 5,000/- to the vendors by payment advice only. In the said case, the CVC had tendered advice for initiation of major penalty proceedings whereas in the present matter, it is not the case. In the present case, the CVC has not found any vigilance angle in the matter whereas in the case of Anju Ranjan (supra), Tribunal had found that the relevant guidelines and instructions issued by the CVC as indicated in paragraph 3.10.4 and 3.10.5 of Vigilance Manual were duly 42 OA No. 1772/2023 followed. In this view of the matter, the judgment of this Tribunal in the case of Anju Ranjan (supra) is found to be of no help to the respondents.
26. We have also gone through the judgments of the Hon'ble Apex Court in the case of Akhilesh Jha (supra) on which reliance has been placed by the learned counsel for the respondents. In the said case, the charge sheet against the respondent was issued by invoking the provisions of Rule 10 of the All India Services (Discipline & Appeal) Rules, 1969. Contention on behalf of the respondent as noted in paragraph 10 of the judgment is that the charge sheet is devoid of material particulars and further that the delay as a matter of fact caused prejudice to the first respondent since he was deprived of his opportunities of deputation and promotion on par with his other batchmates. In the said judgment, we do not find finding(s) of the Hon'ble Court about violation of any binding instructions, rules and/or law in issuance of the charge memorandum and/or conducting the departmental proceedings. In such view of the matter, the Hon'ble Apex Court had found the line of reasoning which had weighed with 43 OA No. 1772/2023 the Tribunal, erroneous. Whereas, in the case in hand, the applicant has been able to prove before us violation of the binding instructions of the CVC and DoP&T issued from time to time, judgments of this Tribunal as well as of the Hon'ble High Courts passed after considering such instructions and also violation of provisions of the rules including those under Rule 14(24) of the Rules.
27. Now, we consider the claim of the applicant in the present OA in view of the answers to the issues as enumerated in paragraph 14 hereinabove. The question which arises is as to whether the correctness of the impugned charge memorandum can be questioned. This issue is no more res integra in view of the judgment of the Hon'ble High Court of Delhi in Than Singh (supra). In paragraph 13 of this judgment, the Hon'ble High Court has ruled as under:
"13. ......The grounds upon which the correctness or otherwise of the charge-sheet can be questioned are:
(i) If it is not in conformity with law.
(ii) If it discloses bias or pre-judgment of the guilt of the charged employee
(iii) There is non-application of mind in issuing the charge-sheet.
(iv) If it does not disclose any
misconduct.
(v) If it is vague.
44
OA No. 1772/2023
(vi) If it is based on state allegations.
(vii) If it is issued mala fide."
28. The Hon'ble High Court of Delhi in the case of Union of India vs. Dr. M.R. Diwan & Anr., reported in (2019) 176 DRJ 201, has considered the judgment of the Hon'ble Apex Court in Prem Nath Bali (supra) and has ruled in paragraph 25 as under:
"25. ......In view of the law laid down by the Supreme Court in Prem Nath Bali (supra), if departmental enquiry proceedings are not completed within the maximum period stipulated by the Supreme Court as aforesaid, such proceedings must be deemed to have lapsed. We would add that even if delay is attributable to the delinquent officer, the proceedings must be concluded, whether with or without the participation of the officer, provided adequate opportunity is given to the officer to participate."
29. The Hon'ble High Court of Delhi in the case of Union of India & Anr. vs Anish Gupta, WP(C) 2267/2022 dated 05.07.2022 has ruled that the respondent cannot merely decide not to comply with the CVC circular without persuasive and tenable reasons. Such a course of action could not only be impermissibly capricious and arbitrary action on the part of the respondents but also render the CVC circular as nugatory rather than merely directory. The Hon'ble High Court has also 45 OA No. 1772/2023 ruled that the disciplinary proceedings cannot continue ad infinitum and allowing such proceedings to continue ad infinitum would not only be highly prejudicial to the petitioner but destructive of the Rule of Law. Occasion came before a Division Bench of the Hon'ble High Court of Bombay at Goa to consider violation of the provisions of Rule 14(24) of the Rules in the case of Anyssia Viegas vs. The State of Goa & Ors., WP No. 182/2021 dated 18.03.2021 and the Hon'ble High Court in its judgment, in paragraphs 46-48 has ruled as under:
"46. Then, going by the Office Memorandum and also Rule 14 (24) (A) of the CCS and CCA Rules, there does not seem to have been any statutory compliance. Rule 14 deals with the procedure for imposing a major penalty. Sub- rule (24)(a) mandates that the Inquiring Authority conclude the inquiry and submit his report within six months from the date of his appointment as Inquiring Authority. Further, sub-rule (24)(b) requires the Inquiring Authority to seek an extension of time from the Disciplinary Authority in writing by providing reasons if he could not adhere to the time limit specified in clause (a). The Disciplinary Authority may allow an additional time not exceeding six months, at a time, for the Inquiry Officer to complete the inquiry. And this extension not exceeding six months, as sub- clause (c) clarifies, may be allowed for any good and sufficient reasons to be recorded in writing by the Disciplinary Authority or any 46 OA No. 1772/2023 other authority authorized by the Disciplinary Authority on his behalf.
47. As seen from the record, the inquiry could not be completed in 18 months. And the Inquiry Officer has sought no extension beyond six months from the date of his appointment. Though the learned Additional Government Advocate submitted that there was an extension, the Government placed on record no material to that effect.
48. Thus, we reckon the departmental proceedings stand vitiatedbecause of the incurable delay and laches. And there is no justifiable or convincing explanation from the Government, either."
30. In the case in hand, we find violation of the advice and guidelines issued by the CVC and DoP&T from time to time not only on the subject of departmental inquiry but also violation of rules particularly Rule 14(24) of the Rules. It is settled law that where a statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. Reliance in this regard may be placed on the judgment of the Hon'ble Apex Court in the case of A.R. Antulay vs. Ramdas Sriniwas Nayan & Anr. reported in (1984) 2 SCC 500 (p.22) Further, the Hon'ble Apex Court has reiterated this position of law in Union of India & Ors. vs. Mahendra 47 OA No. 1772/2023 Singh, reported in 2022 SCC OnLine SC 909, paragraphs 15- 17 of which read as under:
"15. A three Judge Bench of this Court in a judgment reported as Chandra Kishore Jha v. Mahavir Prasad, held as under:
"17...............It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner......
16. The said principle has been followed by this Court in Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh wherein this Court held as under:
"14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure................"
17. Similarly, this Court in Municipal Corporation of Greater Mumbai (MCGM) v. Abhilash Lal and OPTO Circuit India Limited v. Axis Bank has followed the said principle..........."
31. In view of the aforesaid facts, discussion and law, we are of the considered view that the OA deserves to be allowed and the same is accordingly allowed with the following orders:
(i) impugned charge memorandum dated 17.06.2022 (Annexure -A/1(i)) is set aside;
(ii) the respondents shall open the sealed cover in respect of the promotion of the applicant to Grade-III of IFS for the panel 48 OA No. 1772/2023 year 2023 and pass necessary orders keeping in view the recommendations of such DPC;
(iii) the applicant shall be entitled for all consequential benefits in accordance with law, rules and instructions on the subject; and
(iv) the respondents shall comply with the aforesaid directions as expeditiously as possible and preferably within a period of four weeks of date of receipt of a copy of this order.
32. However, in the facts and circumstances of the case, there shall be no order as to costs.
33. The copy of the note-sheets of the relevant disciplinary proceeding file, as provided by the learned counsel for the respondents in a sealed cover, in terms of order dated 15.10.2024 of the Tribunal, be returned to them in a sealed cover.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ns/