Central Administrative Tribunal - Delhi
A K Jha vs Commerce on 17 April, 2025
(OA No.2075/2022)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2075/2022
Reserved on :28.03.2025
Pronounced on :17.04.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
A.K.Jha, S/o Late Shri Vidya Nand Jha,
Aged 61 ½ Years
Retired Indian Trade Service
(Group 'A') Officer;
R/o E-1509, Prateek Edifice, Sector-107,
Noida, U.P.201304. ...Applicant.
(By Advocate: Shri Sachin Chauhan
Vs
1. Union of India through its Secretary,
Department of Commerce,
Vanijya Bhawan, New Delhi-110011.
2. Director General of Foreign Trade,
Vanijya Bhawan, New Delhi-110011.
3. Chief Vigilance Officer,
Department of Commerce,
Vanijya Bhawan, New Delhi-110011.
4. Shri M.Jayachandran,
Deputy Secretary (Vigilance)
Department of Commerce,
Udyog Bhawan, New Delhi-110011.
5. Shri N.P.Mathur,
Former Under Secretary (Vigilance)
Department of Commerce,
Udyog Bhawan, New Delhi-110011.
6. Shri Abhijit Bakshi,
Joint Director General of Foreign Trade(Vigilance),
Directorate General of Foreign Trade,
Udyog Bhawan, New Delhi-110011.
(OA No.2075/2022)
(2)
7. Shri Devashis Bhardwaj,
Former Dy. Director General
of Foreign Trade (Vigilance),
Directorate General of Foreign Trade,
Udyog Bhawan, New Delhi-110011. ...Respondents.
(By Advocate:Shri R.K.Jain)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(a) To call for original records from respondents, including File No. C-13011/31//19/Vig. belonging to respondent 1 department and File No. 1/1/2020-Vig. belonging to respondent 2 Office.
(b) To quash and set aside the suspension order No. 1/1/2020-Vig, dated 28th January, 2021 (ANNEXURE A-1) with all consequential benefits.
(c) To allow interest @ 24% on the amounts due to the applicant on the date of his retirement.
(d) To direct the respondent 1 to fix responsibility on the officers responsible for acting upon the false and pseudonymous complaint dated 18.12.2019 in gross violation of repeated instructions of the DOPT and CVC and submitting misleading Note to obtain approval of the President for suspension of the applicant by suppressing material facts.
(e) To direct the respondent 1 to refer the false complaint dated 18.12.2019 that was sent through e-
mail to the concerned/appropriate agency/authority to investigate its originating source, locate its IP address and the possibility of the role played by the officer(s) then posted in the Office of the Zonal Additional DGFT, Mumbai.
(f) To award cost of litigation to the applicant.
(g) Any other relief which the Hon'ble Tribunal may deem fit in the circumstances of the case."
2. The facts of the case, as gleaned from the OA, are that the applicant had put in decades of service as a member of (OA No.2075/2022) (3) the Indian Trade Service [ITS (Group 'A')] in various capacities in the Directorate General of Foreign Trade (DGFT) and its regional offices under the Central Government Department of Commerce. He alleges that he became a victim of a treacherous conspiracy hatched by his erstwhile junior colleagues in the Western Zonal Office of the DGFT at Mumbai who had been nursing grudge against the applicant because of his frequent advice to them not to harass the importers and exporters by delaying their cases and raising objections in piecemeal manner. These persons waited for the right opportunity and flung into action soon after the departure of the applicant, when the applicant was promoted to the Senior Administrative Grade of the ITS (Group 'A') and transferred to the post of Development Commissioner SEZ, Jamnagar cum Additional Director General of Foreign Trade, Rajkot on 13.08.2019. The applicant contends that unfortunately the detractors of the applicant in Mumbai Office received support in their insidious game from the then Additional Director General of Foreign Trade and H.O.D. of the Mumbai Zonal office who was prejudiced against the applicant due to continuous feeding of disinformation by the vested interests against the applicant.
3. It is submitted that after the transfer of the applicant from the Mumbai office, they hatched a conspiracy and concocted a private complaint on 18.12.2019 against the applicant. The said complaint later turned out to be a pseudonymous complaint as it was specifically and outrightly denied by the addressee to whom it had been sent for confirmation. But throwing all norms and instructions issued by the CVC and DoPT to the winds, the respondents, especially the respondents 4 to 7 entertained that (OA No.2075/2022) (4) pseudonymous complaint and placed the applicant under suspension by incorrectly obtaining the approval of the Hon'ble Minister for Commerce & Industry, suppressing the Government of India instructions regarding handling of anonymous and pseudonymous complaints, taking particular care to conceal the material facts of the cases and the fact that the cases had been scrutinized and examined by the Dealing Hands and duly recommended by the Foreign Trade Development Officers (Group 'B' Gazetted Officers equivalent to Section officer) heading the Sections, before these were approved by the applicant as a Link Officer. The extreme prejudice coupled with improper application of mind and malafide intention in placing the applicant under suspension at around 12.00 Noon on the last day of his service after more than one year of receipt of the pseudonymous complaint dated 18.12.2019 is starkly visible on the face of records as only the applicant has been singled out for suspension, a disgraceful event on the last day of his service. Neither the two Dealing Hands who had scrutinized and examined the cases nor the two Foreign Trade Development Officers (FTDOs) who had specifically recommended and submitted these cases for approval were suspended.
4. It is further submitted that one of the FTDOs Smt. Chitra Mahesh retired on 31.08.2020 i.e., 4 months before the applicant and other Smt. Suman Mangesh Bhoinkar retired on 31.05.2021, 4 months after the retirement of the applicant. They retired with full retirement benefits.
5. As indicated in the OA, the applicant initially joined DGFT as Investigator in the year 1987. He was promoted as Sr. Investigator in 1992 and FTDO (then Controller of Import (OA No.2075/2022) (5) & Export) in 1994. In recognition of his hard work, sincerity and devotion, the applicant was promoted as Assistant DGFT in the Junior Time Scale of the ITS (Group 'A') on 10.11.1997 as Deputy DGFT in the Senior Time Scale on 07.02.2008. The applicant was promoted as Joint DGFT in the Junior Administrative Grade of the service on 27.02.2013 and was granted NFSG in the Grade in 2014. Because of his meritorious performance and integrity, as reflected in his Annual Performance Reports, the applicant was promoted to the next higher Grade i.e. Additional DGFT [Senior Administrative Grade of the ITS (Group 'A')] and posted as Development Commissioner SEZ, Jamnagar cum Additional Director General of Foreign Trade, Rajkot on 13.08.2019. Needless to mention that said promotion was with the approval of the Appointments Committee of the Cabinet.
6. It is further submitted that during his service, the applicant was posted in various regional offices of the Directorate General of Foreign Trade and received accolades for his timely disposal of work and sensitivity towards public dealing. There was no complaint whatsoever from the Trade and Industry against him in all these years. As Joint DGFT, the applicant worked in several important divisions in the Western Zonal Office at Mumbai to the satisfaction of the successive heads of office. The applicant was due to retire with effect from 31st January, 2021 on attaining the age of superannuation.
7. It is stated that 29th January, 2021 was his last working day (30th and 31st being Saturday and Sunday). On that day at around 12.00 noon, the applicant was proceeding along with his family to attend a small function (OA No.2075/2022) (6) arranged by his colleagues and well-wishers for his farewell. But midway, the applicant was handed over an order dated 28th January, 2021 placing him under suspension on the last day of his service under Rule 10 of the CCS(CCA) Rules, 1965, purportedly on the ground that a disciplinary proceeding was contemplated against him. After more than 6 months, the applicant received a letter dated 05.08.2021 from respondent 5 asking for his comments on a complaint dated 18.12.2019 wherein allegations were made in respect of issuance of Service Export from India Scheme (SEIS) (duty credit) Scrips to M/s Seashell Logistics and M/s Chennai International while functioning as Jt. DGFT at RA, Mumbai. On receipt of the said letter dated 05.08.2021, the applicant vide his letter dated 19.08.2021 requested respondent 5 to provide copies of relevant Files in which the cases for issuance of the said SEIS (duty credit) Scrips had been processed, copy of the complaint dated 18.12.2019 referred to in his letter dated 05.08.2021 along with copies of relevant Notes and correspondence portion of the File in which the authenticity/genuineness of said complaint was verified and the final decision taken on the said complaint and order passed thereon, if any, and copy of reply received from the alleged Complainant, if any, in response to letter from the DGFT and copies of the adjudication orders passed under the FTD&R Act in the said two cases, if any. However, respondent 5 vide his letter dated 08.11.2021 supplied copies of the relevant Files in which the cases had been dealt with, but ignored the request of the applicant for copies of the remaining documents.
8. It is further stated that a bare perusal of the copies of the relevant Files in which the cases had been dealt with will (OA No.2075/2022) (7) show that these had been scrutinized and put up for approval by the Dealing Hands and duly examined by the FTDOs in charge of the Sections and proposed for approval before these were approved by the applicant. The applicant reminded respondent 5 for the remaining documents vide his letter dated 20.11.2021. However, no reply was received by the applicant.
9. Failing to evoke any response from respondent 5 and due to his anxiety to avoid any ex-parte decision by the respondents, the applicant finally sent his detailed comments to respondent 5 vide his letter dated 23.12.2021. The applicant was having suspicion about the sinister designs of his erstwhile colleagues in Mumbai Office and that suspicion was confirmed from the contents of the complaint dated 18.12.2019 as communicated in the letter dated 05.08.2021 from respondent 5. Denial of applicant's request for copies of the complaint and letter sent by the department to the complainant for verifying the authenticity of the complaint further strengthened the suspicion of the applicant about the genuineness of the complaint that triggered suspension of the applicant. However, the applicant came to know that the respondent authorities had made correspondence with Shri Harshad Bhayani, the alleged complainant for verification of the genuineness of the complaint. The applicant got copies of
(a) letter No. C-13011/31//19/Vig. dated 20.12.2019 sent by Under Secretary (Vigilance) of the respondent 1 department to the alleged complainant, Shri Harshad Bhayani, Tiktok industrial Consultants Pvt. Ltd., Mumbai to confirm whether the complaint dated 18.12.2019 against the applicant had been filed by him;
(OA No.2075/2022) (8)
(b) reply dated 27.12.2019 sent by Speed Post by Shri Harshad Bhayani to the Under Secretary (Vigilance) of the respondent 1 department, outrightly and vociferously disowning the complaint and also asking for a copy of the complaint.
It is therefore evident that it was already in the knowledge of the respondents, more specifically respondents 4 to 7, that the complaint dated 18.12.2019 on which I was asked to comment was a bogus and pseudonymous complaint as verified twice, firstly by the vigilance section of the respondent 1 Department of Commerce and then the O/o of respondent 2 DGFT. Yet the respondents proceeded with their investigation on the allegations made in the complaint that was not permissible as per the repeated instructions issued by the DOPT and CVC from time to time.
10. The applicant contends that the impugned suspension order dated 28th January, 2021 has been issued in flagrant abuse of the discretionary power vested with the disciplinary authority for improper purposes and on irrelevant considerations; in a colourable exercise of power and in complete disregard to the Gol instructions under Rule 10 of CCS(CCA) Rules, 1965. As per Rule 10(1) of the CCS(CCA) Rules, 1965, the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension -
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (OA No.2075/2022) (9)
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial! But the applicant further contends that the impugned order dated 28.01.2021 placing the applicant under suspension was issued without proper application of mind. Approval of the competent authority which in this case is the President was taken in haste and in reckless manner, as if the officers were acting under external pressure. It has been issued purportedly on the ground that a disciplinary proceeding is 'contemplated' against the applicant, it is, therefore, clear that sub-rules (aa) and (b) are not attracted in the case. Therefore, the only consideration behind the order of suspension was that 'a disciplinary proceeding was contemplated'. But the letter dated 05.08.2021 issued by respondent 5 to the applicant after more than 6 months from the date of suspension asking for his comments on the pseudonymous complaint dated 18.12.2019, shows that investigations were at a very nascent elementary stage, and was not ripe enough to form an informed opinion or to arrive at the stage to take decision for instituting disciplinary proceedings and, therefore, did not reach the stage where it could be said that 'a disciplinary proceeding was contemplated'. The law is clear that until the investigation or preliminary enquiry or confidential enquiry concludes, there can be no application of mind by the competent authority if the case was fit one for initiation of disciplinary proceedings and until such application of mind, it could not be said that the 'proceedings were contemplated'. The mere possibility of disciplinary proceedings is outside the expression 'contemplated'. Whatever Office Notes that had been recorded on the File prior to the date of suspension were guided by conjectures, non-existence facts and/or unverified (OA No.2075/2022) (10) allegations, without detailed examination in consultation with the Policy Division of the DGFT that was necessary in view of the CAG observations at Chapter III of its Report dated 15.07.2020. The said CAG Report clearly brings out that wrong or excess issuance of SEIS credits by various RAs are due to systemic defect and not due to dereliction of duty on the part of officers in RAs and also that such irregularities were rampant and widespread across all the Port offices and also the SEZs.
11. It is submitted that as held by the Hon'ble Delhi High Court in Kul Bhusan Chopra vs Punjab National Bank & Ors. decided on 22.09.1978 [1979 b(1) SLR 436 at 439]:
"There would, therefore, be no power to suspend if the decision to initiate proceedings is yet to be taken where, for example, the matter is at the preliminary enquiny or confidential enquiry or some sort of departmental investigation stages. The reason for this is obvious. Until the investigation or preliminary enquiry or confidential enquiry concludes, there can be no application of mind by the competent authority if the case was fit one for initiation of disciplinary proceedings and untill such application of mind, it could not be said that the proceedings are contemplated. The mere possibility of disciplinary proceedings is outside the expression 'contemplated".
12. The applicant also refers to the CAG report to state that as per CAG Report, the 32 units selection for test check (25 RAs and 7 DC offices) represented 93.12 per cent of MEIS/SEIS scripts covering a money value of 95.19 per cent of the scrips. A sample of 6205 scrips (5747 MEIS Scrips and 458 SEIS Scrips) was selected in these 32 units on the basis of random sampling. As the audit findings are based on test (OA No.2075/2022) (11) check, there is every likelihood that such errors of omission and commission might exist in many more cases. Therefore, CAG advised DGFT to check all the remaining transactions also on the lines of audit findings reported in this Chapter and take appropriate corrective action. Therefore, a legitimate question can arise in anybody's mind whether departmental proceedings have been instituted or are in the process of institution in all the cases detected by the CAG in its 'SAMPLE TEST', since the DGFT (Hqrs.) is already in possession of the exact details of these cases of wrongful issuance of SEIS Scrips. And furthermore, since the cases identified by CAG are only those detected on 'Sample Test check' whether DGFT (Hqrs) have carried out detailed investigation in all the cases of issuance of SEIS and MEIS scrips as advised by CAG. In the absence of any detail action as expected by the CAG, the applicant has been singled out for 'suspension' on the last day of his service leaving out the dealing hands and allowing the FTDOs in- charge of the respective sections in the Mumbai Zonal Office to retire gracefully and with full retirement benefits and; why all similarly placed officers of the DGFT in various regional offices have been left untouched despite having full facts in the possession of DGFT Policy Division. As submitted before, DGFT (Hqrs.) was already in possession of the exact details of these cases of wrongful issuance of SEIS Scrips all across its offices at the time of placing the applicant under suspension.
13. Reiterating the contention about discrimination, the applicant states that as repeatedly held by the apex court and followed/reiterated by various High Courts, "this is trite law that discrimination in placing the employees under (OA No.2075/2022) (12) suspension selectively can be a ground for interference with the suspension order. In (1999) 6 SCC 257 K. Sukhendar Reddy vs. State of A.P. & Anr. the Apex Court held that certain officers were found involved but the appellant therein alone was placed under suspension. It is laid down that the government cannot be permitted to resort to selective suspension. It cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken. Thus, discrimination can very well be a reason for interference/judicial review".
14. The applicant further submits that in order to ensure that powers vested with the disciplinary authorities under rule 10 of the CCS (CCA) Rules, 1965 are not arbitrarily or improperly exercised, elaborate instructions have been issued and reiterated by the DopT from time to time. As per these instructions, the circumstances that occasion suspension of a Government servant are -
(i) Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);
(ii) Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;
(iii) Where the continuance in office of the Government servant will be against the wider public interest [other than those covered by (iv) and (ii)] such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) Where allegations have been made against the Government servant and preliminary Inquiry has (OA No.2075/2022) (13) revealed that a prima facie case is made out which would justify his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.
15. Drawing reference from the above instructions, it is submitted that the applicant had been transferred out of the Mumbai Zonal Office on 13.08.2019 and was posted in SEZ, Rajkot; long before the pseudonymous fake complaint dated 18.12.2019 (ANNEXURE A-7) was planted by vested interests. More particularly, the applicant was on the last day of his service under the Government. The applicant could no way the influence the witnesses or tamper with records in his previous office. Therefore, none of the situations described at (i) to (iii) above that are to be factored in for taking the decision to suspend existed on the date of suspension of the applicant. As regards (iv) the investigation was still in very nascent elementary stage and no definite view could be made on the complicity of the applicant. This is proved by the fact that more than 6 months after the suspension order, the applicant was asked to offer his comments on the allegations levelled against him in the pseudonymous fake complaint dated 18.12.2019 which itself was in violation of the DOPT instructions and CVC Circulars. And if the allegations were so serious and credible, questions arise: why the Dealing Hands who had processed, scrutinized the cases as per check lists and the FTDOs of the respective sections who after scrutiny had proposed the cases for approval, were spared from the humiliation of suspension? Why the FTDOS were allowed to retire gracefully, one before the retirement of the applicant and the other after his retirement?
(OA No.2075/2022) (14)
16. It is asserted that it is well settled that "suspension must be a step in aid to the ultimate result of the investigation or inquiry". Whereas as submitted above, the applicant had been transferred out of the Mumbai Zonal Office on 13.08.2019 and was posted in SEZ, Rajkot; long before the pseudonymous fake complaint dated 18.12.2019 was planted by vested interests. More particularly, the applicant was on the last day of his service under the Government. The applicant, therefore, could in no way the influence the witnesses or tamper with records in his previous office. Yet by improper exercise of the discretionary powers of the disciplinary authority, the applicant was placed under suspension which is contrary to the principles laid down by the Hon'ble Supreme Court in State of Orissa vs Bimal Kumar Mohanty [(1994)4 SCC 126.
17. It is contended that as per sub-Rule 10(7) of these rules, "An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days". The applicant was placed under suspension by the impugned Order dated 28.01.2021. As per this provision, the suspension order should have been reviewed within a period of 90(ninety) days i.e., before 28.04.2021 which has not been done. Therefore, the impugned Order dated 28.01.2021 placing the applicant under suspension is not valid on 28.04.2021 onwards.
18. Further since the applicant has been placed under suspension by the impugned Order dated 28.01.2021 with immediate effect and until further orders, the respondents were bound to issue the charge sheet to the applicant before (OA No.2075/2022) (15) 28.04.2021, under Rule 9(6)(a) of the CCS(Pension) Rules, 1972 which says that disciplinary proceedings are deemed to have been instituted with effect from that date the Government servant has been placed under suspension. A contra view ог interpretation would lead to an absurd and legally unacceptable situation where the applicant would languish without any liability on the part of the respondent authorities to issue a charge sheet within 90 days from the date of suspension. This is not in the spirit of the apex court in Ajay Kumar Choudhary vs Union of India Civil Appeal No. 1912 of 2015 dated 16.02.2015, since the applicant has not been served with the charge sheet within 90 days from the date of his suspension, the impugned Order dated 28.01.2021 placing the applicant under suspension is liable to be struck down on this ground as well, it is averred.
19. In their counter reply, the respondents have submitted that a complaint dated 18.12.2019 was received from one Shri Harshad Bhayani, M/s. Tiktok Industrial Consultants Limited, Mumbai addressed to the Hon'ble CIM and the Commerce Secretary wherein it was alleged that the consultant had paid Rs. 85 lakhs as bribe to the applicant, then Joint DGFT, for SEIS license No. 0408008059. But in spite of the same, a Show Cause Notice has been issued to his client. The complainant also alleged that bribe was also paid to Mrs. Chitra Mahesh, FTDO. It was also alleged that problems had arisen in the case of another client M/s. Seashell Logistics Pvt. Ltd. even after payment of bribe. A letter was issued to the complainant to provide specific details to enquire into the case and to confirm whether the said person has indeed made the complaint. Shri Harshad Bhayani vide his letter dated 18.01.2020, denied making (OA No.2075/2022) (16) any such complaint against the applicant or any other official of Mumbai office of DGFT. Shri Bhayani also stated that he has received a similar letter from Vigilance Section of Department of Commerce and he has denied making such a complaint. He also stated that the e-mail from which the complaint has been sent is not his e-mail ID. Therefore, the complaint was found to be pseudonymous.
20. It is submitted that initially, RA, Mumbai submitted an interim report which clearly indicated that there was an undue haste in issuing the SEIS scrips to M/s. Chennai International Terminals. Based on the interim report, the Vigilance Division, DGFT directed the Zonal Addl. DGFT, Mumbai to submit a comprehensive report within 15 days. The final report of Zonal Office, DGFT, Mumbai stated that the case regarding Chennai International Terminals has been adjudicated and it was observed that the firm had claimed benefit for an ineligible items and therefore availed excess duty benefit for an amount not exceeded Rs. 1.4 lakhs for which the firm has been asked to pay the said amount along with custom duty. However, no inputs were provided regarding the Vigilance angle in the said case. Therefore, it was decided to constitute a Fact Finding Committee of two members consisting of Dr. Praveen Kumar, Deputy DGFT and Shri Devashish Bhardwaj, Deputy DGFT to look into the records and take statements, if required and submit their findings in the matter regarding issuance of SEIS scrips to M/s. Seashell Logistics and M/s. Chennai International Terminals. It is clear from reports of RA, Mumbai and the report of the Fact Finding Committee that:
(a) Duty credit scrips of SEIS have been issued to M/s.
Seashell Logistic and M/s. Chennai International (OA No.2075/2022) (17) Terminals for items which were ineligible and therefore excess benefit has been granted to the firm;
(b) There has been an undue delay in issuance of Show Cause Notice when prima-facie it was apparent that the firm has claimed benefit for ineligible items;
(c) In case of Chennai International Terminals the case has been adjudicated and the excess amount quantified. Although, there has been some delay:
(d) There was an undue haste in issuance of SEIS scrip to M/s. Chennai International Terminals especially considering the facts that the processing and issuing officers viz. FTDO (Smt. Chitra Mahesh) and Joint DGFT (Shri A.K. Jha) were link officers as the regular officers were on leave for a short period. Moreover, SEIS scrip are post-Export benefits and the urgency is inexplicable. In conclusion, it can be stated that there have been various lapses and omissions on the part of the applicant, then Joint DGFT and Smt. Chitra Mahesh, then FTDO in the said case.
21. The Prima-facie lapses and omissions are established against the applicant, the then Joint DGFT and later posted as Development Commissioner, Reliance SEZ, Jamnagar, Gujarat. Since the applicant was due to retire on 31st January, 2021 on attaining the age of superannuation, a very short period was available to take appropriate action before his date of retirement. In such a situation, the Disciplinary Authority (Hon'ble C&IM) approved the following course of action:
i) suspension order may be issued against the applicant and disciplinary action may be taken against the officer;
ii) Disciplinary proceeding may be initiated against Smt. Chitra Mahesh, FTDO (retired) from RA, Mumbai.
22. The respondents submit that the action has been taken by the answering respondents as per the relevant rules and instructions. Hence the present OA is liable to be dismissed on this ground alone. They also submit that suspension (OA No.2075/2022) (18) order was issued with the approval of the competent authority on the basis of the reports of Addl DGFT, Mumbai and the Fact Finding committee. Moreover when a Government servant comes under cloud, he may pass through three stages, namely, investigation, issue of charge sheet in Departmental Proceedings and/or prosecution for a criminal charge followed by either penalty/conviction or exoneration/acquittal. The present case was at the stage of investigation and prior to issue of charge sheet in disciplinary proceedings, contends the respondents. It is asserted that the Department was of the view that the charges are serious enough and that the applicant should be suspended and the suspension order therefore was issued after preliminary investigation (Report of the Additional DGFT, Mumbai and the Fact Finding Committee) pointed towards lapses and omissions. It is also clarified that the investigation has not been on the basis of CAG report but on the basis of complaint having verifiable facts, involving loss of revenue to the Government.
23. We have heard both the learned counsels and gone through the pleadings on records, including the counter reply, rejoinder and the sur rejoinder.
24. Learned counsel for the applicant based on his OA and rejoinder has reiterated that since the suspension order is based on pseudonymous complaint, no action should have been taken on such complaint. Therefore, the suspension order is not as per extant instructions and rules. It is reiterated that the applicant has been singled out for suspension leaving other concerned officials which smacks on discrimination. He also contends that the impugned order has been issued without proper application of mind and also (OA No.2075/2022) (19) issued for improper purpose and in a colourable exercise of power. Learned counsel further argues that the grounds listed for suspension in the counter reply of the OA, more particularly para 4.17, are completely non-existent and irrelevant. He also draws our pointed attention that no charge sheet has been served on the applicant till today. Elaborating, he submits that the applicant was suspended on the date of his retirement on 28.01.2021 and even after 4 months they could not serve the charge sheet when the rules and instructions say that it has to be given within 3 months of the suspension order. In support of his various contentions, learned counsel for the applicant has also cited a catena of judgments, which we have gone through.
25. Though the learned counsel for the applicant has taken several grounds in the OA in support of his various contentions, we take into account the contention regarding the complaint being pseudonymous first, followed by the contention raised regarding lack of application of mind by the impugned order as charge sheet even after more than 4 years of the impugned order has not been issued as these two are the very foundation of the OA. If the answer to the aforementioned claims is affirmative, then the applicant will have a strong case. However, if they do not hold water or withstand legal scrutiny, then one can go over to and consider other grounds raised by the learned counsel for applicant.
26. We have considered the aforementioned contention of the learned counsel. Coming to the first ground, the undisputed fact is that the complaint was received on 18.12.2019 from one Harshad Bhayani, M/s. Tiktok Industrial Consultants Limited, Mumbai addressed to the (OA No.2075/2022) (20) Hon'ble CIM and the Commerce Secretary wherein it was alleged that the consultant had paid Rs. 85 lakhs as bribe to the applicant, then Joint DGFT, for SEIS license No. 0408008059 having a value of about Rs. 17 crores issued to issued to Chennai International Terminals. But in spite of the same, a show cause notice has been issued to his client. The complainant also alleged that bribe was also paid to one Mrs. Chitra Mahesh, FTDO. It was also alleged that problems had arisen in the case of another client M/s. Seashell Logistics Pvt. Ltd. even after payment of bribe. Thereafter, a letter was issued to the complainant to provide specific details to enquire into the case and to confirm whether the said person has indeed made the complaint. Shri Harshad Bhayani vide his letter dated 18.01.2020, denied making any such complaint against the applicant or any other official of Mumbai office of DGFT. Shri Bhayani also mentioned that he has received a similar letter from Vigilance Section of Department of Commerce and he has denied making such a complaint. He also stated that the e-mail from which the complaint has been sent is not his e-mail ID. Therefore, the complaint was found to be pseudonymous. But yet it is decided to add on it and sought a report from the Additional DGFT, Mumbai. This was followed by an interim report by RA Mumbai based on which Additional DGFT, Mumbai the Vigilance Division, DGFT directed the Zonal Addl. DGFT, Mumbai to submit a comprehensive report within 15 days. The final report of Zonal Office, DGFT, Mumbai stated that the case regarding Chennai International Terminals has been adjudicated and it was observed that the firm had claimed benefit for an ineligible items and therefore availed excess duty benefit for an amount not exceeded Rs.1.4 lakhs for (OA No.2075/2022) (21) which the firm has been asked to pay the said amount along with custom duty. However, no inputs were provided regarding the vigilance angle in the said case. Therefore, a Fact Finding Committee was constituted to submit their findings regarding issuance of SEIS scrips to M/s. Seashell Logistics and M/s. Chennai International Terminals which pointed out towards certain anomalies prima-facie lapses and omissions against the applicant which included issuing of duty credit scrips to both entities for items which were ineligible, giving them excess benefit, undue delay in issuance of show cause notice where it was apparent that the firm has claimed benefit for ineligible items, undue haste in issuance of SEIS scrips to M/s Chennai International Terminals, especially considering the facts that the processing and issuing officers viz FTDO (Smt. Chitra Mahesh) and Joint DGFT (Shri A.K. Jha) were link officers as the regular officers were on leave for a short period. Based on the finding, as aforementioned, a suspension order was issued.
27. It is evident that the respondents have themselves admitted that the complaint was indeed pseudonymous. Therefore if the complaints under reference were held to be pseudonymous, whether the respondents should have acted upon it by way of conducting the preliminary enquiry and set up the Fact Finding Committee based on which the impugned order of suspension was issued.
28. We consider the aforesaid issues in the light of the facts of the case, the relevant OMs, Rules and law on the subject. Paragraph 3.10.4 and 3.10.5 of the Vigilance Manual (updated 2021) of CVC read as under:
(OA No.2075/2022) (22) "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 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.
29. As per "The Law Lexicon, The Encyclopaedic Law Dictionary, 3rd Edition, 2012", "anonymous" means "Nameless; without name; a term applied to the reported (OA No.2075/2022) (23) cases in which the names of the parties are not given, or which 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." From the counter reply, there is no dispute that the respondents themselves have admitted that the complaint in question was pseudonymous. 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.
30. Further, though a preliminary inquiry was purported to have been done, however, the 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 CVC 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 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:
(OA No.2075/2022) (24) "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.
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.
(OA No.2075/2022) (25)
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 (OA No.2075/2022) (26) 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 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."
31. In the light of above, the respondents ought to have ignored this complaint in question. However, despite this unequivocal position, respondent no.2 enquired into the complaint and prepared a so-called preliminary report followed by a fact finding report and thereafter the impugned communication was issued. In our considered view, the action of respondent no.2 to initiate enquiry on the basis of pseudonymous complaint is without jurisdiction. Such report prepared in pursuance to pseudonymous complaint has no value and cannot be acted upon.
32. Having dealt with the first ground, we travel to the said issued of delay in issuing the charge sheet (which is yet to be issued). In this regard 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 (OA No.2075/2022) (27) 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 Time Limit prescribed Inquiry Fixing date of Preliminary Within four weeks Hearing and inspection of listed documents, submission of Defence documents/witnesses and nomination of a Defence Assistant (DA)(if not already 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 3 months submission of certificates confirming inspection of additional documents by 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 15 days by PO to CO/IO Submission of Written Brief 15 days by CO to IO Submission of Inquiry 30 days Report from the date of receipt of written Brief by PO/CO
33. The CVC vide circular No. 18/12/20 dated 14.12.2020 has further emphasized the importance of expeditious (OA No.2075/2022) (28) 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:-
Sl. Stage of Time
No. disciplinary action Limit
1. Issue of Charge All the
Sheet to the required
stage of actions may
appointment of be completed
IO and PO within a period
of 02 months
from the date
of issue of
First Stage
Advice of the
Commission.
2. Conducting The inquiry
departmental report should
inquiry and be submitted
submission of within 6
report by the months from
Inquiry officer the date of
(I.O.) appointment
of inquiry
officers
(OA No.2075/2022)
(29)
3. Overall additional In addition to
time for all/any the above
of the above time limit, a
stages of period of 1
disciplinary more month
proceedings, due may be taken
to some if required.
unavoidable/unfo
reseen
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."
34. 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 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 (OA No.2075/2022) (30) 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.
(OA No.2075/2022) (31)
22. Further, a Division Bench of the Hon'ble High Court of Delhi vide order/judgment dated 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 (OA No.2075/2022) (32) 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."
35. In the instant case, there is no explanation on behalf of the respondents for this inordinate delay of more than 4 years therein the charge memorandum is yet to be issued. No explanation at all has been furnished by the respondents for non-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 clearly flouted. The same would be sufficient to jeopardise the defence of the applicant. Therefore, the question is as to whether the impugned order dated 28.01.2021 is vitiated and/or the proceedings in pursuance thereto had lapsed for the delay. As evident, subsequent to the issuance of suspension order despite there being no restraint from this Tribunal and/or the disciplinary authority, even the charge sheet has not been issued and the enquiry has not concluded till date. Therefore, at the cost of repetition, we say that 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 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 (OA No.2075/2022) (33) 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.
36. 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 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.
(OA No.2075/2022) (34)
37. In the case in hand, we find violation of the advice and guidelines issued by the CVC and DoP&T from time to time on the subject of departmental inquiry. 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 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 (OA No.2075/2022) (35) 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..........."
38. In the light of aforesaid, it is evident that though the applicant was suspended on 29.01.2021 even after 41 months, the respondents have not served the charge sheet in clear of violation of extant rules and instructions and thus the impugned suspension order is not sustainable. It is surprising that, as contended by respondents though the allegations were serious and preliminary inquiry pointed towards certain lapses leading to the impugned order, no charge sheet could be issued. This puts a question mark on validity of the suspension order and substantiates the claim of the learned counsel of the applicant that said impugned order was indeed based on non-application of mind.
39. Thus, we come to the conclusion that both the contentions, i.e. illegality of action taken on the basis of pseudonymous complaint and non-application of mind with regard to the impugned suspension order, in as much as charge sheet after a long period of more than 4 years has not been issued, hold ground and the OA has merit. Accordingly, the OA is allowed with following orders:
(i) The impugned suspension order at annexure A-1 dated 28.01.2021 is set aside.
(OA No.2075/2022) (36)
(ii) The applicant will be entitled for all consequential benefits in accordance with extant law, rules and instructions on the subject.
(iii) We direct the competent authority among the respondents to do the needful in compliance of the (i) and (ii) within a period of six weeks from the date of receipt of a certified copy of this order.
(iv) No order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/