Central Administrative Tribunal - Delhi
J. K. Sharma S/O R. P. Sharma vs Union Of India Through on 2 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1231 of 2011 This the 2nd day of December, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) J. K. Sharma S/o R. P. Sharma, Flat No.1, Type-V, DCP, South Office Complex, P.S. Hauz Khas, New Delhi-110016 Working as IG Police, Puducherry. Applicant ( By Shri Maninder Singh, Sr. Advocate and with him Shri Arun Bhardwaj, Shri Narender Kaushik and Shri Nitesh Sharma, Advocates ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Central Vigilance Commission through its Commissioner, Satarkata Bhawan, Block A, GPO Complex, INA, New Delhi. Respondents ( By Shri H. K. Gangwani, Advocate ) O R D E R Justice V. K. Bali, Chairman:
J. K. Sharma, an IPS officer of AGMUT cadre of 1982 batch, has filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking to quash and set aside order dated 16.03.2011, vide which his representation dated 02.01.2011 praying for dropping the proceedings against him on the ground that the charges on which he is to be departmentally tried were not approved by the competent authority, has been rejected. In consequence of setting aside of the order aforesaid, the applicant seeks a declaration that continuation of the departmental enquiry against him would be illegal.
2. Inasmuch as, the only plea that has been raised in support of the present Original Application is that the charges framed against the applicant have not been approved by the competent authority, there would be no need to give facts in all their details. The bare minimum facts, which, however, still need mention reveal that CBI, Anti Corruption Branch, registered an FIR on 31.01.2000 against the applicant under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, wherein it was alleged that during the period 1982 till 2000, while working as a public servant in various capacities, the applicant had acquired assets in his own name or in the name of his family members by corrupt and illegal means. A significant development in the matter of investigation of the criminal case against the applicant took place when CBI forwarded a revised charge-sheet omitting the article of charge pertaining to possession of assets disproportionate to the known sources of income. The applicant came to know of the development as mentioned above when he sought information from the disciplinary authority by invoking provisions of the Right to Information Act, 2005. In response thereto, information was made available to the applicant by supplying copy of the relevant noting along with covering letter dated 15.12.2010. The note-sheet dated 04.02.2005 made available to the applicant pursuant to his request under RTI Act, reads as follows:
2. The Central Bureau of Investigation have forwarded the revised chargesheet omitting the article of charge pertaining to possession of assets disproportionate to the known sources of income of Shri Sharma. The list of documents by which and the list of witnesses by whom the article of charge is serve to be proved has also been amended accordingly. The draft chargesheet now forwarded by CBI appears to be in order and the same may kindly be approved for service on Shri J.K. Sharma, IPS (AGMU:82). Even though, the case of the applicant is that when the charge pertaining to possession of assets disproportionate to his known sources of income has been dropped/omitted by CBI itself, the only allegations in the memorandum of charges would be in relation to technical violation in purchase of DDA flat in Dwarka under 9th SFS Scheme, and, therefore, there would be no need to continue the enquiry as regards the charges framed against the applicant, as technical flaw may not result into any major penalty, but, as mentioned above, the only plea that has been pressed into service during the course of arguments at this stage is that the charges as framed against the applicant having not been approved by the competent authority, have to be quashed and set aside.
3. The applicant has been visiting this Tribunal on earlier occasions as well. In April, 2008 he filed OA No.859/2008, which was disposed of by this Tribunal on 25.09.2009. At that stage, the applicant had confined his relief only to supplying him the documents on the basis of which the department was to prove the charges against him. Even though, as mentioned above, variety of reliefs were asked for, during the course of arguments, what was pressed into service was that no enquiry should be initiated against the applicant till such time he was to be made available all the documents mentioned in the list of documents annexed with the charge-sheet. There was also some dispute as regards such documents which were made available to the applicant, which, according to the applicant, were not exactly as their originals. While disposing of the OA aforesaid, we observed as follows:
3. In the circumstances as mentioned above, we dispose of this Original Application directing the respondents to get the documents corrected or amended as the case may be within a period of three weeks from today failing which enquiry must proceed on the documents which are relevant. Once the documents are amended, obviously the applicant would be given opportunity to file his written statement, and it is only after considering the same the enquiry will be initiated against him and the enquiry officer already appointed shall be deemed to have been appointed from that date. We further direct the respondents that the enquiry proceedings, if any, be initiated and concluded as expeditiously as possible and preferably within a period of six months from the date of receipt of certified copy of this order. There has been long drawn correspondence between the applicant and the respondents as regards compliance of the orders of the Tribunal. Inasmuch as, it is the case of the applicant that the orders as passed by this Tribunal, as mentioned above, had not been complied with, he filed contempt petition bearing CP No.664/2010, which came to be disposed of vide order dated 19.01.2011. For the reasons mentioned in the order, we were of the view that there was no deliberate or intentional violation of the orders passed by the Tribunal. We found that substantial compliance had been made, as most of the documents had been made available to the applicant. The plea raised by the applicant that the documents were not complete and could not be said to be authenticated documents, was dealt with by observing as follows:
If despite the fact that the case of the respondents is that copies of the documents supplied to the applicant are authenticated, it be the case of the applicant that they do not match the original, he can raise such a plea before the enquiry officer. Surely, if the enquiry officer is satisfied with the plea raised by the applicant, the original documents can be asked to be produced for its perusal, or a direction can also be issued by the enquiry officer to produce certified copies of the documents. It may not be difficult for the applicant also to obtain certified copies himself if the said documents are a part of material collected by CBI. He has a right even under the Right to Information Act to seek copies of the documents. If the documents on which the department is relying are at variance with their originals, the applicant can surely take advantage of the same. These are matters which can be gone into by the enquiry officer. Surely, if the applicant has not given reply after receipt of copies of the documents, which, according to the respondents, are authenticated, it would not be possible for the respondents to decide his representation, and surely, in the circumstances as mentioned above, there was no question for the enquiry to come to an end within a period of six months. It is the case of the applicant that when the relevant note-sheet of the Ministry of Home Affairs was given to him on his demanding the same under the RTI Act, for the first time he came to know that the charge-sheet had not been approved by the competent authority, i.e., the Home Minister, and on deriving the knowledge as mentioned above, he filed yet another Original Application bearing OA No.239/2011. The same was disposed of by this Tribunal on 03.02.2011. It was urged before the Tribunal that the applicant hade made representation on 02.01.2011, wherein it had been mentioned that the competent authority had not approved the charge, and that the said point should at least be decided by the authorities. On the contention aforesaid, we observed that It goes without saying that while dealing with the case of the applicant and passing orders in the matter, the respondents shall also have to deal with all the issues that might be taken by the applicant and in case he has filed representation as regards non approval of the charge by the competent authority, the same shall have to be gone into. We also observed that once the concerned authorities are enjoined to deal with all the points that might be raised by an employee, while finalizing the disciplinary proceedings against him, it goes without saying that his representation would also be dealt with. We disposed of the OA by simply observing that the plea of the applicant as reflected in his representation would also be taken into consideration. The respondents could, in view of the order as mentioned above, have dealt with the representation at the time of finalizing the disciplinary proceedings, but they have chosen to reject the same in midst of the enquiry, vide impugned order dated 16.03.2011 by a non-speaking and cryptic order, which reads as follows:
Shri J. K. Sharmas representation dated 02.01.2011 has been considered in this Ministry and it has been found that the points raised therein are bereft of any merit. He is, therefore, advised to address his grievances to the IO during the inquiry and to cooperate in the departmental proceedings for its speedy completion.
4. It is not in dispute that the representation of the applicant dated 02.01.2011 also contained the plea that the charge-sheet had not been approved by the competent authority. As of now, it is not in dispute that if the charge-sheet has not been approved by the competent authority, the same shall have to be set aside, as has been consistently held by this Tribunal, and one such judgment of the Tribunal has since already been upheld by the Honble Division Bench of the High Court of Delhi. In that regard, we may only refer to the judgment of this Tribunal in OA No.800/2008 in the matter of B. V. Gopinath v Union of India & others, decided on 05.02.2009, against which writ petition bearing WP(C) No.10452/2009 came to be dismissed by the High Court of Delhi vide orders dated 28.07.2009.
5. When the matter came up before us for hearing on 30.09.2011, we posed a question as to whether the applicant could file successive petitions for the same relief on different grounds from time to time. Shri Maninder Singh, learned Sr. Advocate representing the applicant, in our view, rightly contends that the present Original Application cannot be dismissed being barred by the principles of res judicata, as surely and admittedly, the representation of the applicant came to be decided as ordained by this Tribunal, and rejection thereof would provide a fresh cause of action to the applicant. In that regard, the learned counsel places reliance upon the judgment of the Honble Supreme Court in Baij Nath Sharma v Rajasthan High Court at Jodhpur & another [(1998) 7 SCC 44], wherein it is held that when a writ petition is withdrawn with liberty to submit departmental representation and also file fresh petition, if occasion may arise, second writ petition would not be barred by res judicata, particularly when the appellant may not get any relief on his departmental representation. In our view, even if liberty may not have been asked for, once a fresh cause of action arises on rejection of representation of the employee, fresh petition can indeed be filed for the same relief. Further, the plea raised by the applicant as regards non-approval of the charge-sheet by the competent authority was not gone into and determined by this Tribunal while disposing of the earlier OA of the applicant. As regards non-approval of the charge-sheet by the competent authority, there is no dispute. In para 9 of the written statement filed on behalf of the respondents, it is admitted that the charge-sheet was issued with approval of AS (BM) in the MHA. The applicant in his endeavour to prove that the competent authority, i.e., the Home Minister, had not approved the charge-sheet, has placed reliance upon some documents, but once the position is admitted, there would be no need to refer to the said documents to unnecessarily burden the judgment.
6. In view of the discussion made above, this Tribunal is left with no choice but for to quash and set aside the charge memorandum dated 08.02.2005 having not been approved by the competent authority, i.e., the Home Minister. The respondents shall, however, be at liberty to seek approval of the competent authority, and in case, such an approval is given, there would be no need to start the departmental proceedings de novo. The same may start from the stage where they stand as on date.
7. With the observations and directions as mentioned above, present Original Application is disposed of. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/