Central Administrative Tribunal - Delhi
Manoj Kumar Sharma vs Union Of India Through on 10 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.3247/2011
Order Reserved on: 01.11.2013
Pronounced on: 10.02.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Manoj Kumar Sharma,
S/o Sh. Bani Singh Sharma,
C/o Shri Rameshwer Dayal Sharma,
House No.1/3422-A, Ram Nagar Exnt.,
Gali No.4, Loni Road, Shahadra,
Delhi-110032. -Applicant
(By Advocate Shri Arun Bhardwaj)
-Versus-
1. Union of India through
Secretary, Ministry of Finance,
Department of Revenue,
North Block, New Delhi-110001.
2. Chief Commissioner,
Customs and Central Excise,
Meerut Zone,
Opposite Chaudhary Charan Singh University,
Mangal Pandey Nagar,
Meerut, UP.
3. Commissioner,
Customs & Central Excise,
C-56/42, Sector-62,
Noida-201307. -Respondents
(By Advocate Shri R.N. Singh)
O R D E R
Mr. V.N. Gaur, Member (A):
The present OA has been filed by the applicant with the following prayers:
i) Quash and set aside the Order of the Appellate Authority Dt. 26.07.2011.
ii) To Quash and set aside Punishment order dt. 29.10.2009 the penalty imposed on the Applicant by the DA in reduction of his pay in the pay scale of Rs.9300-34800/- by two stages i.e. from current 16,500/-+Grade Pay to Rs.15,240/-+Grade Pay with immediate effect for a period of three years and one month.
iii) To quash and set aside the Departmental charge-sheet Dt. 04.10.2005 with all consequential benefits.
2. The brief facts of the case are that the applicant while working as Inspector, Customs and Central Excise at Inline Container Depot (ICD) Moradabad was instructed by his superiors to supervise factory stuffing on 14.09.1998 against the shipping bill nos.5244, 5245, 5246 and 5247. These consignments comprised readymade garments, quartz analog watches. The applicant had taken samples from the consignment and marked it sample drawn for making enquiries for valuation which appears grossly on higher side. The consignment was thereafter sealed with a bottle seal which is normally used after the consignment has been cleared for final export. On the same day a team of Central Preventive Unit of Meerut Commissionerate raided the ICD, Moradabad and seized the container stuff with readymade garments. The applicant was placed under suspension w.e.f. 13.04.1999. It was alleged that the applicant did not mention the actual position with regard to the articles in the consignment which were alleged to be torn, soiled and used clothes, and were not entitled to duty drawback at all, and thus the applicant attempted to cause pecuniary loss to the Government. A criminal case was registered by the CBI against the applicant and three others on 29.03.2000 under Sections 120-B, 420 and 511 IPC readwith Section 13 (2) and 13 (1) (d) of Prevention of Corruption (PC) Act and a departmental inquiry was also initiated on 04.10.2005 making the applicant as accused no.3. On 02.02.2007 the Special Judge, CBI, Ghaziabad acquitted the applicant, as the CBI had not been able to establish the charges against the applicant. So no appeal was filed against this order, the order of the Special Judge attained finality. The applicant approached the Disciplinary Authority (DA) with a request for dropping the charges leveled in the memorandum dated 04.10.2005 in terms of Chapter-VII, para 16.2 of the CVC Vigilance Manual, since he had been acquitted by the CBI Court, the DA also recommended the same vide his letter dated 20.12.2007 addressed to the Director General (DG), Vigilance, New Delhi. The DG, Vigilance replied vide letter dated 15.02.2008 agreeing with the views of the DA and advised him to finalize the matter in accordance with Chapter-VII, para 16.2 of the Vigilance Manual. The DA vide letter dated 28.03.2008 submitted his proposed decision to drop the charges for 2nd stage advice of DG (Vigilance), also pointing out the fact that though the DA had ordered inquiry against the accused persons, no inquiry report had been received by that time. In response, the Central Vigilance Commission (CVC) on 22.07.2008 advised as follows:
2. Commission has observed that the standard of proof required for prosecution cases is of evidence beyond reasonable doubt, whereas for disciplinary proceedings, it is of preponderance of probability, and which would involve aspects of procedural lapses. The Commission would, therefore, advise that the disciplinary proceedings against S/Shri A.K. Arora, Superintendent and Manoj Kumar Sharma, Inspector, may be completed expeditiously.
3. Action taken in the matter may please be intimated to the Commission, along with report on role of Shri M.K. Sohal, then AC as called vide OM of even number dated 19.06.2008. The Inquiry Officer (IO) submitted his report on 16.06.2009 with the following conclusion:
In view of the above analysis, none of the charges framed in the memorandum dated 04.10.2005 are established against Sh. Manoj Kumar Sharma, Inspector even on the basis of the theory of Preponderance of Probability. No procedural lapse on the part of the Inspector can also be established. The DA after considering the IOs report agreed with the finding in respect of the applicant that none of the charges were proved against the applicant and conveyed the same to the DG (Vigilance) vide his letter dated 15.12.2009. The DG (Vigilance) however, did not agree with the DA and sent the following advice:
3. In respect of Sri Manoj Kumar Sharma, the observations of this Directorate are as under:
(i) The goods were not declared as old and used clothing in shipping Bills. Sri Manoj Kumar Sharma, Inspector in his examination report has no where mentioned that goods were old and used. The correct description of goods can not be inferred from his examination report that the goods were grossly over-invoiced, by any stretch of imagination. The offence committed by the officer does not get mitigated even if drawback was permissible on old and used clothings. The IOs findings thus are not acceptable and charge is proved to the extent that the officer failed to mention the correct description of the goods examined by him.
(ii) The fact that he put the bottle seal on containers before LEO is a matter of record and has not been disputed. The reasons for doing so do not change the facts. In view of the fact that the goods were old, soiled and torn, the apprehension expressed by the charged officer that the same might be replaced by the exporter is not logical and viable.
(iii) The position taken by the charged officer that since ironing was being carried out, he considered the premises as a factory is again not acceptable as CO is a C EX officer and is expected to be familiar with what factory premises are under C EX Law.
4. In view of above DG (Vig)/CVO has advised for imposition of major penalty on Sri A K Arora, Supdt. and Sri Manoj Kumar Sharma Inspector. A copy of the advice of the DG (Vigilance) and IOs report was furnished to the applicant on 15.06.2010 to which the applicant submitted his detailed representation vide his letter dated 20.09.2010. The DA finally passed an order on 29.10.2010, imposing the penalty of reduction of his pay by two stages for a period of 03 years and 01 month without the effect of postponing his future increments of pay. The applicant submitted an appeal against the orders of the DA of 15.12.2010 and 10.03.2011, which was rejected by the Appellate Authority (AA) on 26.07.2011.
3. The applicant has challenged the charge-sheet and the other impugned orders mainly on the following grounds:
i) The allegation in the charge-sheet filed by the CBI and the memorandum issued by the Department were the same as both alleged non-compliance of departmental procedure and instructions and, therefore, para-16.2 of the Vigilance Manual would come into play.
ii) It was against the principles of natural justice for the DA to have sought the advice vide letter dated 15.12.2009 again from the DG (Vigilance) after the latter had already advised that the applicant was covered by para-16.2 of the CVC Manual.
iii) After accepting the report of the IO and communicating the same to the DG (Vigilance) the DA became functus officio and he could not have changed his own finding. In this case change of mind by the DA on the advice of the DG (Vigilance) would violate the principles of natural justice, as held in:
(a) Nagraj Shivrao Karjagi v. Syndicate Bank Head Office Manipal and Others, AIR 1991 SC 1507; and
(b)U.P. State Agro Industrial Corporation Ltd. v. Padam Chand Jain, 1995 SC (L&S) 1011.
iv) In terms of para-4 of the Central Board of Customs and Excise circular dated 07.01.2011 since the IO has initially held the charge as not proved and the DA has not recorded any disagreement note, therefore applicant was covered by the direction contained in the said circular (copy of the referred circular has not been filed by the applicant). The AA has not given any reason as to why the judgment given by the competent court of criminal jurisdiction cannot be relied upon.
v) The applicant himself had endorsed on the appeal that the value of the goods exported appears to be on higher side, which indicated his bona fide.
4. The learned counsel for the applicant in his submission stated that the charge-sheet filed by the CBI and the charges contained in the memorandum in the departmental inquiry were identical and were based on the same facts of the case and, therefore, the provisions of para 16.2 of the CVC Manual would become applicable. Para 16.2 of the CVC Manual reads as follows:
16.2 On identical set of facts and allegations may constitute a criminal offence as well as misconduct punishable under the C.C.S. (C.C.A.) Rules or other corresponding rules. If the facts or allegations has been examined by a court of competent jurisdiction and if the court held that the allegations were not true, it will not be permissible to hold a departmental enquiry in respect of a charge based on the same facts or allegations. In his view, once the competent court of criminal jurisdiction has given its finding, the DA should have accepted the finding and dropped further proceedings in the departmental inquiry. He further submitted that it was not just once that the DA had considered the applicant innocent-in the year 1998 itself, Commissioner, Central Excise Meerut-II had sent a letter to DG (Vigilance) holding that the applicant had performed his duty according to law and procedure, as provided in the Customs and Central Excise Act and, therefore, the applicant was not found guilty of any misconduct. The respondents, however, were bent upon taking action against the applicant by not only filing FIR with the CBI but also starting departmental action. The DA had initially taken a view that once the Special Judge, CBI had exonerated the applicant of the identical charges in terms of para 16.2 of the CVC Manual, it would not be permissible to hold a departmental inquiry in respect of a charge based on the same facts or allegations. This was also agreed to by the DG (Vigilance) advising that the matter may be finalized in accordance with the aforesaid provisions of the CVC Manual. The DA, however, made a reference again to the DG (Vigilance), who apparently made a reference to the CVC whereby an advice was tendered to complete the departmental inquiry on principle of preponderance of probability. According to the learned counsel this action on the part of the DA was against the procedure and the principles of natural justice. The IO in his report again exonerated applicant of all charges and that was also agreed to by the DA. But here again the DG (Vigilance) agreed with the DA and even proposed imposition of penalty on the applicant. This clearly shows that the DA did not take the decision on his own but was influenced by the extraneous considerations. In this context, the learned counsel relied on the judgment rendered by the Honble Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679. The learned counsel also relied on G.M. Tank v. State of Gujarat & Anr., (2006) 5 SCC 446.
5. The learned counsel of the respondents in his submission referred to para 22 (i) of Capt. M. Paul Anthony (supra) where one of the conclusions recorded in the judgment was that:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
6. He further referred to the judgment of the Honble Apex Court in Union of India & Anr. v. B.C. Chaturvedi, JT 1995 (8) SC 65 where the Honble Apex Court held that:
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. It was further held:
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. xxx xxx xxx xxx 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court / Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
7. The learned counsel argued that the respondents have abided by all the statutory provisions and there was no violation of the law of natural justice and, therefore, there was no ground for this Tribunal to interfere in the decision taken by the Disciplinary and Appellate Authorities. According to the learned counsel, even though the charges were similar in the criminal and departmental proceedings, it is established law that in departmental proceedings the findings are based on preponderance of probability and not on exact evidence, as in the case of a criminal proceeding. In departmental proceedings the DA had imposed the penalty for violation of the Conduct Rules while in the CBI Court the charges were under Indian Penal Code and PC Act. The finding of the Special Judge, CBI Court was also on the issue of criminal conspiracy and not on violation of any Conduct Rules to which a civil servant is bound. He also refuted the allegation made by the applicant that there was no application of mind by the DA or that he was prejudiced by the direction given by the DG (Vigilance) with regard to imposition of penalty. According to the learned counsel, the advice given by the DG (Vigilance) was not binding and that it was the DA who, on the basis of that advice and other facts before him had taken a decision to impose the penalty upon the applicant. The learned counsel also relied on the judgment of the Honble Supreme Court in Govt. of India and Another v. George Philip, (2006) 13 SCC 1.
8. We have gone through the pleadings on record and the submissions made by the learned counsel from both sides. The first ground taken by the applicant is regarding the charges being the same both in the criminal case filed by the CBI and the departmental proceedings. Para-16.2 of the Vigilance Manual provided that on identical sets of facts and allegations if the court has held the allegations to be true, it will not be permissible to hold a departmental enquiry in respect of a charge based on the same facts and allegations. According to the facts in this case the DA had already ordered departmental inquiry in the matter before the applicant was acquitted by the criminal court. Therefore, it cannot be said that the DA had started an inquiry after the applicant had been acquitted.
9. The next question that arises is whether such an inquiry shall have to be dropped once the applicant has been acquitted by the Court, provided the charges were identical. In this connection it is relevant to quota para 16.1 of the Vigilance Manual, which states as follows:
16.1. If the Government servant is acquitted by trial or appellate court and if it is decided that the acquittal should not be challenged in a higher court, the competent authority should decide whether or not despite the acquittal, the facts and circumstances of the case are such as to call for a departmental enquiry on the basis of the allegations on which he was previously charged and convicted. According to the ruling of the Supreme Court in Nagpur City Corporation vs. Ram Chandra and other [SC 396 of 1980-SLR 1981 (2)], even where the accused public servant is acquitted and exonerated of an offence, such acquittal does not bar a departmental authority from holding or continuing disciplinary proceedings against the accused public servant.
10. It is obvious that there is no bar on departmental authorities from holding or continuing disciplinary proceedings against the accused public servant even after the Government servant is acquitted by the Trial or Appellate Court. The discretion is with the competent authority to decide whether or not in the background of the facts and circumstances the departmental inquiry has been instituted or not. In the present case the matter had been deliberated upon by the DA in consultation with the DG (Vigilance)/CVC and a conscious decision was taken to continue with the departmental inquiry for which the orders had already been issued before the judgment by the CBI Court. This action of the respondents cannot be said to have violated any mandatory rules or provisions of law or principles of natural justice. The applicant has also alleged that once the DA had come to the conclusion on the basis of the report of the IO that none of the charges were proved against the applicant, he had become functus officio and it was violative of the principles of natural justice to have changed his mind on the basis of the advice of the DG (Vigilance). In this context it is noted that immediately after the incident in the year 1998 the Commissioner of Customs and Excise, Mordabad had written to DG (Vigilance) that the applicant had performed his duty according to law and procedure, as provided in the Customs and Central Excise Act and, therefore, the applicant was not found guilty of any misconduct. However, according to the respondents, as averred in the counter reply the same was written in a hurry. The respondents decided to file a case with the CBI and a FIR was registered accordingly. The department also decided to initiate disciplinary inquiry in the year 2005. Here, it is important to mention that even though the facts were the same, the case filed by the CBI was under Sections 120-B, 420 and 511 IPC readwith Section 13 (2) and 13 (1) (d) of Prevention of Corruption (PC) Act, where the thrust was on the criminal conspiracy, which is apparent from the operative part of the judgment of the learned Special Judge CBI Economic Offences, U.P. (East) Ghaziabad, which reads as follows:-
Thus, in such circumstances, it is unjust and unfair to allow the averment of the prosecution (CBI) that accused persons Manoj Kumar Sharma and Ajay Kumar Arora have committed any offence punishable under the Prevention of Corruption Act. Above circumstances show that neither there was any intention to commit the above offence or to make its preparation nor any question of hatching any conspiracy arises at all. All the evidences which have been produced on behalf of the prosecution show that the goods which were to be exported by the accused persons (exporters), order of Let Export was not mentioned on the shipping bills in regard to those goods.
Thus in view of the above circumstances, it appears that the prosecution (CBI) has failed to prove its case and it will be appropriate to acquit the accused persons of the charge.
11. Here, we agree with the submission of the learned counsel for the respondents that at times the facts of the case will be the same in the criminal proceedings and the departmental proceedings, the perspective from which the acts of commissions or omission on the part of the Government servant is viewed, may be entirely different and would also attract penalties under different provisions of law and rules. Therefore, we do not find any infirmity, as stated earlier, in continuing with the departmental proceedings after the verdict of the CBI Court also.
12. In this case even IO in the departmental inquiry had come to the conclusion that none of the charges against the applicant was proved. The DA also after considering the report of the IO agreed with the findings. It was only after reference to the DG (Vigilance) at that stage that the suggestion of imposing a major penalty cropped up. In our view, after consistent finding of the CBI Court, departmental inquiry and the officers of the department that the applicant had not violated any provisions of the rules, a reversal of view of the DA on the advice of the DG (Vigilance) is against the law. In this context, we may refer to Nagraj Shivarao Karjagi (supra) where it has been categorically held by the Honble Apex Court that:
authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of Central Vigilance Commission or of the Central Government. No third party like Central Vigilance Commission or the Central Government could dictate the disciplinary authority or appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer.
13. In this case precisely the same thing has happened that the Disciplinary Authority after making up its mind with regard to the charges against the applicant changed his stand on the advice of the DG (Vigilance). The reference to Capt. M. Paul Anthony (supra) and G.M. Tank (supra) by the learned counsel for the applicant are not relevant considering the facts and circumstances of this case are different.
14. The learned counsel for the respondents has relied on B.C. Chaturvedi (supra) contending that the power of this Tribunal is limited as the DA is the sole judge of facts. It has also been submitted on the strength of the same judgment that the judicial review is not an appeal from a decision but a review of the manner in which the judgment is made. We agree with the submission made by the learned counsel and, therefore, we are not getting into facts and the evidence and its appreciation by the concerned authorities. In any case, the applicant has not made a case that there has been any major procedural violation in conducting the disciplinary proceedings against him but looking at the manner in which a decision has been made by the competent authority we find that the same was vitiated, as the decision to impose the major penalty on the applicant was not an independent decision of the DA but was influenced by a third party, i.e., DG (Vigilance). The learned counsel for the respondents has also relied on George Philips (supra) but we find that the same is not relevant in this case as the quantum of punishment has not been questioned by the applicant and is not the issue before us.
15. In view of the above facts and aforesaid reasons, we quash and set aside the punishment order dated 29.10.2009 and the order of the Appellate Authority dated 26.07.2011 with a direction to the respondents to restore all the benefits that the applicant would be entitled to in the absence of the penalty imposed vide punishment order dated 29.10.2009.
16. The OA is allowed in the aforesaid terms but without any order as to costs.
(V.N. Gaur) (G. George Paracken) Member (A) Member (J) San.