Allahabad High Court
Union Of India Thr,Secy.Govt.Of India ... vs Ravindra Kumar Singh And Another on 18 September, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 268 of 2019 Petitioner :- Union Of India Thr,Secy.Govt.Of India Ministry Finance & Ors Respondent :- Ravindra Kumar Singh And Another Counsel for Petitioner :- Kuldeepak Nag (K.D.Nag) Counsel for Respondent :- R.C.Saxena Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(Per Anil Kumar, J.) Heard Sri K.D. Nag, learned counsel for petitioner, Sri R.C. Saxena, learned counsel for applicant-respondent No. 1 and perused the record.
Facts in brief of the present case are that applicant-respondent No. 1/Ravindra Kumar Singh has filed an O.A. No. 75 of 2010 (Ravindra Kumar Singh Vs. Union of India and others), challenging the entire disciplinary, i.e. memorandum of charge, inquiry report, second stage advice of the CVC and the penalty order compulsorily retiring him from service and also challenged the penalty order dated 30.07.2010 by means of amendment in the said O.A. before the Central Administrative Tribunal (hereinafter referred to as the ''Tribunal') In addition to abvoesaid O.A., applicant-respondent has also filed O.A. No. 316/2007.
Both the O.As were clubbed together and decided by the common judgment by the Tribunal.
So far as the O.A. No. 316/2007 is concerned, the Tribunal in its judgment and order dated 01.09.2017 held as under:-
"23. The only relief claimed in OA No. 316/2007 is challenged to the charge-sheet on the ground that the same has been issued by an incompetent authority. In view of the above, there is no merit in this OA, Which is liable to be dismissed. Ordered accordingly."
So far as the O.A. No. 75 of 2010 is concerned, the Tribunal in its judgment dated 01.09.2017 held as under:-
"24. As far as OA No. 75/2010 is concerned, we have already recorded our opinion that the procedure adopted by the disciplinary authority is in contravention to sub-rules (2)and (3) (a) of rule 15 of the CCS(CCA)Rules, 1965, as also violative of principles of natural justice. The impugned penalty order is thus liable to be set aside on this count. We order accordingly. notwithstanding the setting aside of the impugned penalty order, the matter is remitted back to the disciplinary authority to pass a fresh order after taking into consideration the reply of the applicant to the inquiry report, without taking into consideration the second stage advice of CVC."
The findings on which the abvoesaid judgment has been passed by Tribunal is quoted hereinbelow:-
"16. It is admitted case of the parties that on receipt of the inquiry report the disciplinary authority failed to forward the same to the Government servant. To the contrary without seeking response of the Government servant, CVC's advice was sought by recording its own tentative opinion of imposing the penalty, whereas ex facie the requirement of the rule is that the disciplinary authority is under a bounden duty to forward the report of the inquiry firstly to the charged officer for his representation and it is only after the comments/representation of the charged officer that the disciplinary authority, if after examining the representation of the Government servant to the inquiry report, is of the opinion that the penalty as prescribed under rules is required to be imposed, may seek second stage advice of the Commission. The object of this provision is based upon sound principles of natural justice. The disciplinary authority is not required to formulate its opinion merely on the basis of the inquiry report, except where he disagrees on the findings of the inquiring authority on any article of charge without considering the reply/representation of the Government servant to the findings of the inquiring authority. The very object is that the disciplinary authority on consideration of the representation/reply of the charged officer to the findings of the inquiring authority may change its opinion. In the present case, the disciplinary authority in gross contravention of the provisions of sub-rule (2) and sub-rule (3)(a) of rule 15, chose to seek second stage advice of CVC before providing opportunity to the Government servant to submit his representation/reply to the report of the inquiring authority. It is also pertinent to note that though the disciplinary authority is not bound by the advice of the Commission, nonetheless, the advice of the Commission, whether CVC or UPSC, is capable of influencing the mind of the disciplinary authority and in such an eventuality it would not be an independent, impartial and fair application of mind by the disciplinary authority to the findings of the inquiring authority. The import of CVC's advice at the initial stage without having the benefit of the Government servant's response to the inquiry report is prone to seriously impact the decision making approach of the disciplinary authority. Thus, such a procedure is not only in contravention of sub-rules (2) and (3)(a) of rule 15 but also violative of the principles of natural justice.
17. Sub-rule 3(b) of rule 15 also requires the disciplinary authority to forward or cause to be forwarded a copy of the advice of the Commission received under clause (a) to the Government servant to provide him another opportunity to respond to the advice of the Commission. Thus, a two-fold protection has been provided to the Government servant (i) to respond to the report of the inquiry to provide a fair opportunity to the disciplinary authority to examine the report of the inquiry in the light of the defence of the Government servant; and (ii) in the event the advice of the Commission is against the Government servant, to enable the Government servant to again respond to such advice for the impartial and due application of mind by the disciplinary authority.
18. In Managing Director, ECIL v B. Karunakar & others [(1993) 4 SCC 727] a Constitution Bench of the Hon'ble Supreme Court held that it is the right of the employee to have the report of the inquiry officer to defend himself effectively notwithstanding whether he asked for the report or not. The report has to be furnished to him even if the statutory rules do not permit furnishing of the report or are silent on this aspect. This is in consonance with Article 311(2) of the Constitution of India and principles of natural justice. However, where the disciplinary authority before providing opportunity to the Government servant makes up its mind to an impose penalty and further strengthens its opinion with the advice of CVC or UPSC, the very purpose of asking the Government servant to submit his representation is frustrated and renders it meaningless and illusory.
19. The role and purpose of the Central Vigilance Commission in the matter of disciplinary proceedings is prescribed under Section 19 of the Central Vigilance Commission Act, 2003. Such consultation is on the basis of the rules and regulations governing vigilance or disciplinary matters relating to persons appointed to public services and posts in connection with the affairs of the Union. Any regulations made under the Central Vigilance Commission Act, 2003 have to be read harmoniously with the provisions of rule 15 of the CCS (CCA) Rules, 1965.
20. In the present case, from the record we find that vide letter dated 20.08.2009, the disciplinary authority sought the second stage advice of CVC. While seeking advice the disciplinary authority not only simply forwarded the report of the inquiring authority but also its own findings and conclusions on each article of charge. The opinion of the disciplinary authority recorded in the aforesaid letter is as under:
"Taking into account the findings of the Inquiry Officer as well as the views of the undersigned, it is considered that the imposition of one of the major penalty on Shri R.K Singh, Inspector (now Supdt) recommended by the CVC in its first stage Advice aforementioned would be just, fair and proper. Accordingly, I strongly recommend that one of the major penalty under Rule 11 of CCS (CCA) Rules, 1965 should be imposed upon Shri R.K. Singh, Inspector (now Supdt)."
CVC vide its office memorandum dated 22.01.2010 communicated to the disciplinary authority for acceptance of the inquiry officer's report for imposition of suitable major penalty in agreement with the disciplinary authority. The aforesaid memorandum reads as under:
"Sub: Disciplinary Proceedings against Shri R.K. Singh, Inspector (now Supdt.).
CBEC may refer to their U.O. Note No.V-566/5/2001-Pt.II-Cus/04 dated 07.01.2010 on the subject cited above.
2. Commission has observed that the IO's report and as the views of the DA are appropriate as the inquiry establishes the active involvement of the CO in leaving his station unauthorisedly for abetting the export fraud which was unraveled by DRI.
3. Commission, hence, in agreement with DA, advises for acceptance of IO's Report and imposition of suitable major penalty upon Shri R.K. Singh, then Inspector (now Supdt.).
4. Department's files are returned herewith. Receipt of Commission's advice/Department's files may be acknowledged. Action taken may be intimated."
From the above office menmorandum, we find that CVC has not discharged its role in accordance with law. As a matter of fact, CVC seems to have been influenced by the opinion of the disciplinary authority and has endorsed its opinion without any application of mind, and vice versa, the disciplinary authority being influenced by the opinion of CVC imposed the penalty. In the entire process, the principles of natural justice have been sacrificed by both the authorities.
21. The applicant has also challenged the competence of the Commissioner, Central Excise to issue the charge memorandum. It is stated that the Commissioner was not competent to issue the charge-sheet. Reliance is placed upon order dated 16.01.2003 issued by the Ministry of Finance, Department of Revenue, CBEC, New Delhi, whereby the Chief Commissioner, Central Excise/Customs, Lucknow was declared as the cadre controlling authority. Copy of this letter is placed on record as Annexure-1 with OA No.723/2010 in OA No.75/2010. Aforesaid letter reads as under:
"Sub: Declaration of Chief Commissioner of Central Excise/Customs as Cadre Controlling Authorities upto Group 'B' level staff.
Sir I am directed to say that the question of declaring the Chief Commissioner of Central Excise/Customs as cadre controlling authority in respect of staff upto Group 'B' level had been under consideration of the Central Board of Excise and Customs (hereinafter referred to as the Board) for some time. It has now been decided by the Board that all the powers that are presently being exercised by the respective Chief Commissioners as the cadre controlling authority should henceforth be exercised by their respective Chief Commissioners. However there would be no merger or bifurcation of the existing cadres i.e. the functions of each cadre controlling authority shall be exercised separately and independently by the chief Commissioner. This in effect would imply that the independent entity of each cadre shall remain intact and unchanged.
2. As the cadre controlling authority, the Chief Commissioners' mandate of responsibility should also extend to:
(a) All establishment matters including recruitment, promotion and confirmation upto the level of Group B staff;
(b) Holding of Departmental Promotion Committee meetings;
(c) Monitoring the implementation of the Board's instructions with regard to transfers and equitable distribution of manpower and material resources between Commissioners/Zones; and
(d) Adequate representation of employees belonging to the SC/ST and OBC categories in the cadre under his control.
3. It is also clarified that in the formations comprising both Commissioners and Chief Commissioners, it would be the Chief Commissioner who would allocate and post staff to various formations including Commissioners'/Chief Commissioners' office.
4. It has also been decided to declare the Chief Commissioners as Head of the Department in order to enable them to carry out their responsibilities."
22. From the perusal of the aforesaid letter, we find that the Chief Commissioner was declared as the cadre controlling authority for purposes of activities mentioned therein. Insofar as the disciplinary proceedings are concerned, Part-II of the Schedule appended to the CCS (CCA) Rules, 1965 prescribes the description of service, appointing authority and the competent authority to impose penalties. Part-II of the Schedule deals with the Central Civil Services Group 'B'. Entry 12 of the aforesaid Schedule reads as under:
Serial Number Description of service Appointing Authority Authority competent to impose penalties and penalties which it may impose (with reference to item numbers in Rule 11) Authority Penalties (1) (2) (3) (4) (5)
12.
Central Excise Service, Group ''B' - Superintendents Group ''B' (including Deputy Headquarters Assistant to the Collector ) and District Opium Officers, Group ''B' Collector of Central Excise/land Customs; Narcotics Commissioner Collector of Central Excuse/Land Customs Director of Inspection; Director of Revenue Intelligence; Narcotics Commissioner.
In respect of -
(i) a member of the Service Serving in (Statistics and Intelligence Branch Central Excise) : Deputy collector (Statistics and Intelligence Branch).
(ii) any other member of the Service : Assitant6 Collector of Central Excise, Group ''A' All
(i) to (iv)
(i) From this Schedule, it is evident that the Collector of Central Excise (Commissioner) is the competent disciplinary authority to impose all penalties prescribed under rule 11. The Schedule is statutory in nature. Letter dated 16.01.2003 has not amended the Schedule and thus may be for administrative purposes, but not for purposes of imposition of penalty. Otherwise also this communication does not in any manner deals with the powers of the Chief Commissioner to impose the penalty in disciplinary proceedings. Thus statutory rule would prevail and the Commissioner was and continues to be the competent authority for imposing penalty upon the applicant. The contention of the applicant is thus rejected.
23. The only relief claimed in OA No.316/2007 is challenge to the charge-sheet on the ground that the same has been issued by an incompetent authority. In view of the above, there is no merit in this OA, which is liable to be dismissed. Ordered accordingly.
24. As far as OA No. 75/2010 is concerned, we have already recorded our opinion that the procedure adopted by the disciplinary authority is in contravention to sub-rules (2)and (3) (a) of rule 15 of the CCS(CCA)Rules, 1965, as also violative of principles of natural justice. The impugned penalty order is thus liable to be set aside on this count. We order accordingly. notwithstanding the setting aside of the impugned penalty order, the matter is remitted back to the disciplinary authority to pass a fresh order after taking into consideration the reply of the applicant to the inquiry report, without taking into consideration the second stage advice of CVC."
Aggrieved by the order dated 01.09.2017, the present writ petition has been filed by the petitioners.
Sri R.C. Saxena learned counsel for applicant-respondent No. 1 has raised preliminary objection on the issue of maintainability of writ petition through affidavit. The relevant portion of the affidavit is quoted below:-
"(i) The present writ petition is barred by the doctrine of Estoppel:- The present writ petition is liable to be dismissed for the reason that after serving the certified copy of Judgement and order dated 1.9.2017 passed by Learned Tribunal in O.A. No.75/2010 along with representation dated 23.9.2017, the Disciplinary Authority, Commissioner, CGST & Central Excise Lucknow in terms and in compliance of Judgement and order dated 1.9.2017 of the Learned Tribunal issued the letter dated 12.10.20 17 requiring the deponent to submit the representation against the inquiry report dated 29.7.2009 within a period of 15 days for taking decision after considering the representation, if submitted by the deponent and thereafter the deponent in compliance of letter dated 12.10.2017 submitted representation dated 24.10.2017 and further representation dated 29.6.2018 to the Disciplinary authority for taking decision but no decision has yet been taken by the disciplinary authority in terms of judgement and order dated 1.9.2017. From the above it is absolutely clear that the Petitioners accepted the judgement of the Learned Tribunal dated 1.9.2017 and also implemented the impugned judgement and order dated 1.9.2017 by issuing letter dated 12.10.2017. Thus, from the own actions of the Petitioners/Respondents that they had no intention to challenge the impugned judgement and order of the learned tribunal as the letter dated 12.10.2017 issued by themselves for implementing the judgement and order dated 1.9.2017 of the learned tribunal they are barred & stopped by the Doctrine of Estoppel as such the present writ petition is liable to be dismissed on this ground alone. The true electrostat copy of the letter dated 12.10.2017 excluding the copy of inquiry report and the representations dated 24.10.2017 & 29.6.2018 submitted by the deponent are filed here with as Annexure No.-CA-1, CA-2 & CA-3 to this counter affidavit.
(ii) Writ Petition is liable to be dismissed for concealment of material facts/documents:- The petitioners/respondents have cunningly and most dishonestly have concealed the most material facts/documents in the writ petition that for the purpose of compliance of judgement and order of Learned Tribunal dated 1.9.2017 the letter dated 12.10.2017 contained in Annexure No. CA-1 was already issued to the deponent requiring the deponent to submit his representation for taking appropriate decision by the disciplinary authority which was submitted by the deponent on 24.10.2017 & 29.6.2018 contained in Annexure No.-CA-2 & CA-3 and the disciplinary authority despite the above has yet not taken any decision. In view of the above, since the petitioners/respondents have not approached this Hon'ble Court with clean hands and are guilty of concealment of material facts and documents, the writ is liable to be dismissed for the said reasons.
(iii) Moving of two Applications seeking for extension of time to comply with the judgement and order before the Learned Tribunal in 0.A. No.75/2010, debars the petitioners/respondents to challenge the said impugned judgement and order dated 1.9.2017 before this Hon'ble Court:- It is the well settled legal position that either the respondents may comply with the directions of the Hon'ble Court within the time specified or if the compliance is not possible for any reason within the specified period, the only course open to the Respondents is that they should moved the concerned court for the purpose of extension of further time for compliance of the said directions. In the present case also since the Petitioners/respondents could not take decision within a specified time of 3 months, they approached and filed two applications for further extension of time before the Learned Tribunal in OA No.75/2010 for complying with judgement and order dated 1.9.2017. Moving of above two applications for further extension of time itself finds mention in para 29 and 31 of the writ petition. Therefore, on one hand when above applications of the petitioners/respondents seeking for extension of time for compliance of iudgement and order dated 1.9.2017 are still pending with the learned tribunal in the aforesaid O.A. No.75/2010, they are under legal obligation to comply with the judgement and order dated 1.9.2017 and they can not permitted to challenge the same judgement and order dated 1.9.2017 for compliance of which they have sought for extension of time before Learned Tribunal. In this regard the deponent refers and rely upon the decision of Hon'ble Supreme court in the case of M.L. Sachdev vs Union of India & another reported in 1991 SCC(L&S) 606, Para 7 in which the Hon'ble Apex Court has held that once it was found that before the extended date the direction was not being complied with, it was the obligation of the respondent-contemnor to approach the court for further extension of time or to receive such direction as the court in its discretion thought it appropriate to make. Thus, it is absolutely clear that the very purpose of moving application for extension of further time is to aimed at to comply with the judgement and order and its direction and not for challenging the iudgement and order before higher court in the garb of said application for extension of time as such the present writ is barred by principles of Estoppel and constructive resjudicata.
(iv) The present writ petition is liable to be dismissed on the ground of delay and laches:- The Hon'ble Tribunal passed the judgement and order dated 1.9.2017 contained in Annexure No. 1 to the writ petition considering the entire facts and grounds raised on behalf of petitioner and the respondents and decided all the issues involved into the matter, setting aside the impugned punishment order of compulsory retirement and remitted back the matter to the disciplinary authority for passing a fresh order within a period of three months. The petitioner/respondents within a period of about one month partially complied with the judgement and order dated 1.9.2017 by issuing letter dated 12.10.2017 contained in Annexure No.-CA-1 and when remaining compliance about taking of final decision could not be possible within the specified period of 3 months, they approached the learned Tribunal for extension of time by means of two applications. From the moving of these applications for extension of time for complying with the directions of Learned Tribunal, the petitioners/respondents can not get rid off from the 3 months limitation for filing the writ petition. The reason is that seeking of time for compliance of directions is all together contrary to the question of limitation for filing of writ petition. It is wonder that the petitioners/ respondents have not even mentioned any facts and grounds for condoning the period beyond three months in any part of the entire writ petition. It appears that the petitioners/respondents misleading the Hon'ble court and not disclosing that the period of limitation for challenging the judgement and order dated 1.9.2017 had already expired as on 1.12.2017 and further expiry of one year, filed the above writ petition which was liable to have been dismissed on the ground of delay and laches. It is not disputed that even if any writ petition suffers from the delay and laches, the Hon'ble Court has power to condone the delay for sufficient reasons to be pleaded and brought on record but the delay in question has to be explained with reasons so that the concerned Hon'ble court may be able to pass appropriate order but in the present case the relevant facts and reason about Condonation of delay have not been pleaded at all instead several letters of departmental correspondents of different subsequent dates have been referred in the writ petition which are irrelevant as regards the question of limitation for filing of writ petition against the judgement and order dated 1.9.2017. In view of the above, the present writ petition is liable to be dismissed on the ground of limitation also."
Learned counsel for petitioners, in rebuttal, so far as the matter in regard to delay in filing the writ petition, submits that after passing of the judgment by Tribunal dated 01.09.2017 the steps were taken as stated in paragraph Nos. 29 to 34 of the writ petition, so keeping in view the said facts as well as the judgment passed by Hon'ble the Apex Court int eh case of Smt. Sudama Devi Vs. Commissioner and others, 1983 (2) SCC 1 and in the case of State of Rajasthan & others Vs. Bal Kishan Mathur (dead) Through Legal Representatives and others, 2014 (1) SCC 592, delay in filing the writ petition may be condoned.
Sri K.D. Nag, learned counsel for petitioners-Union of India while opposing the other objections raised by learned counsel for respondent as well as on merit of judgment passed by the Tribunal submits as under:-
"1. That it is admitted fact that there were very serious allegations against Ravindra Kumar Singh (OP-1 in instant WP), including those relating to extending assistance to the offenders by misusing is official position and attempting to get released the detained export consignments of offenders, against the interest of the Customs department. Hence Disciplinary proceedings were conducted against the OP-1 in accordance with law wherein full opportunity was provided to him. The Charge Sheet was issued on 29.09.2003, whereas after providing full opportunity, the punishment order of compulsory Retirement of R. K. Singh (OP-1) was passed by the disciplinary authority on 30.07.2010. (refer Para-12 of WP).
2. That it is also admitted fact that a Memorandum of Charges dated 29.09.2003 was served to R. K. Singh (OP-1), to which he submitted his reply dated 08.10.2003. The gravity and seriousness of Charges is evident as the Article of Charges have been quoted in the final Judgment and Order dated 01.09.2017, impugned in the writ petition (refer Para-3 of WP).
3. That it is also admitted fact that the enquiry officer proceeded with the enquiry proceedings in accordance of law. After giving full opportunity and after observing all norms of natural Justice, the inquiry was concluded on 04.06.2009. At that stage R. K. Singh submitted detailed Statement of Defense dated 21.07.2009 and after considering the statement of defense of R. K. Singh (OP-1 in instant WP), the inquiry officer submitted Inquiry Report dated 29.07.2009 to the disciplinary authority (refer Para-5 of WP).
4. That it is also admitted that vide office order dated 05.02.2010 (i.e. Show Cause Notice- before awarding punishment) the (i) copy of the Inquiry Report dated 29.07.2009 and (ii) copy of IInd stage advice memo dated 22.01.2010 of CVC was serve to R. K. Singh (OP- 1 in WP) for his reply /representation in the matter of action proposed against him. The fact of serving the copy of the Inquiry Report dated 29.07.2009 and copy of IInd stage advice memo dated 22.01.2010 of CVC has been acknowledged by the Tribunal in the end of paragraph 5 of the impugned judgment dated 01.09.2017 (Ann. - 1 to wp). As such all norms of opportunity of representation, fair play and natural justice were observed at that stage also. As such no prejudice caused to R. K. Singh (refer Para-7 of WP).
5. That OP-1 (R. K. Singh) submitted his representation dated 12.03.2010 in response to the office order dated 05.02.2010 (i.e. Show Cause Notice before awarding punishment) (refer Para-9 of WP).
6. That after considering the entire material relating to disciplinary proceeding including the representation dated 12.03.2010 of OP-1 (R. K. Singh) in response to the office order dated 05.02.2010 (i.e. Show Cause Notice -before awarding punishment), the punishment order dated 30.07.2010 for 'compulsory retirement' of R. K.Singh (OP-1 in instant WP) was passed by the disciplinary authority (refer Para-12 of WP).
7. That it is pertinent to mention that the Disciplinary Proceedings in question against the opposite party commenced on 29.09.2003, with the issuance of Memorandum of Charges dated 29.09.2003 (Charge Sheet) and got concluded on 30.07.2010 by issuance punishment order dated 30.07.2010 for compulsory retirement of R. K. Singh in a span of seven year duration. In the prolong detailed Disciplinary Proceedings, all possible opportunities of representation /reply hearing in his defense were provided to the opposite party and all opportunities were fully availed by the opposite party.
8. That during the course of Disciplinary Proceedings, opposite party (R.K. Singh) filed two original applications i.e. OA No. 316 / 2007 and OA No.75 /2010, in the Central Administrative Tribunal, Lucknow Bench, Lucknow, but he did not plead as to what and factual prejudice was caused to him actual and factual prejudice was caused to him and in what manner during inquiry proceedings through which he was compulsorily retired.
9. That the Tribunal has acknowledge that along with the copy of Inquiry Report, the advice of the commission (CVC) was also send to the R. K. Singh for his comments - before passing punishment order. As such it cannot be said that there is failure of opportunity of hearing to the Government Servant, and in fact the final decision of imposition of penalties was taken only after considering the reply dated 12.03.20100 of R. K. Singh in response to the office order dated 05.02.2010 (i.e. Show Cause Notice - before awarding punishment) of disciplinary authority (refer Para-25 of WP).
10. That for allowing the OA No.75 / 2010 vide impugned judgment dated 01.09.2017, the Learned Tribunal relied on the legal principle laid down by the Hon'ble Supreme Court of India on the issue of 'Non Supply of Report of Inquiry Officer' in the matter of Managing Director, ECIL, Hyderabad Vs. B. Karunakar - (1993) 4 SCC 727.
11. That in paragraph 30 (v) of the judgment in - Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported at (1993) 4 SCC 727, Hon'ble Supreme Court of India observed -
"30 (v) ........ Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an - unnatural expansion of natural justice which in itself is antithetical of justice.
In the instant matter in hand of R. K. Singh, a Show Cause Notice-before awarding punishment (i.e. order dated 05.02.2010) was issued to R. K. Singh and along with that the (i) copy of the Inquiry Report dated 29.07.2009 and (ii) copy of IInd stage advice memo dated 22.01.2010 of CVC was serve to R. K. Singh (OP-1 in WP) for his reply /representation in the matter of action proposed against him. The fact of the serving the copy of the Inquiry Report dated 29.07.2009 and copy of IInd stage advice memo dated 22.01.2010 of CVC has been acknowledged by the Tribunal in the end of paragraph 5 of the impugned judgment dated 01.09.2017 (Ann.-1 to WP).
The Learned Tribunal failed to record the appropriate findings as to what actual and factual prejudice was caused to R. K. Singh and in what manner. Thus the impugned judgment dated 01.09.2017 (Ann. 1 to WP) is in sheer violation to the principle laid down in Managing Director, ECIL, Hyderabad Vs. B. Karunakar (1993) 4 SCC 727 itself.
12. That in support of contention of the writ petition, the petitioner is further relying on the judgment given in the matter of S. K. Singh Vs. Central Bank of India & others (1996) 6 SCC 415 (copy attached), wherein the Hon'ble Supreme Court of India held - since the dismissed employee failed to explain, as to what prejudice was caused to him on account of non-supply of the Charge Sheet, the 'dismissal order' was rightly not interfered with by the Hon'ble Single Judge and also rightly not interfered by the Division Bench of High Court. Lastly Hon'ble Apex Court also dismissed the SLP filed by the dismissed employee.
13. That in support of contention of the writ petition, the petitioner is further relying on the paragraphs 21, 22, 23, 24, 25, 36 & 44 of the judgment given in the matter of - Haryana Financial Corporation & another Vs. Kailash Chandra Ahuja - (2008) 9 SCC 31 (copy attached).
14. That in support of contention of the writ petition, the petitioner is further relying on the paragraphs 7, 8, 9 & 10 of the judgment given in the matter of - Uttarakhand Transport Corporation & another Vs. Sukhver Singh - (2018) 1 SCC 231 (copy attached).
15. That in preliminary objection dated 25.03.2019, the counsel for OP-1 has opposed the writ petition on the ground of 'Estoppel' as the departmental authorities invited objections of OP-1 in furtherance of judgment dated 01.09.2017 (Ann. 1 to WP), impugned in instant writ petition. Hence departmental authorities are stopped to challenge the judgment dated 01.09.2017 passed by the Central Administrative Tribunal.
In reply it most respectfully submit that parties (particularly the departmental authorities) before the Central Administrative Tribunal, in the OA have every 'legal right' rather 'legal duty' to challenge the judgment of the Tribunal and seek judicial review at next higher forum i.e. the Hon'ble High Court. It is most respectfully submitted that 'legal right' or 'legal duty' cannot be blocked on the ground of 'Estoppel'.
It is further submitted that none of the legal right of the OP-1 are getting affected by judicial review /judicial scrutiny by the Hon'ble High Court of the judgment dated 01.09.2017 passed by the Central Administrative Tribunal.
16. That in the 'Counter Affidavit' dated 18.04.2019, the OP-1 has referred the Judgment of Hon'ble Apex Court delivered in the matter of S. P. Chengalvaraya Naidu Vs. Jagannath - 1994 AIR 853.
In this connection it is submitted the judgment of Apex Court delivered in the matter of S. P. Chengalvaraya Naidu Vs. Jagannath relates to the property dispute, where some manipulation were made in the property related document by one party and preliminary decree was obtain at the back of aggrieved party.
In the instant writ petition, unwanted interference by the Central Administrative Tribunal in the departmental disciplinary proceedings is to be examined by the Hon'ble High Court."
In order to consider the matter in respect to condonation of delay, we feel appropriate to go through the law as laid down by Hon'ble the Apex Court in the case of Smt. Sudama Devi Vs. Commissioner and others, 1983 (2) SCC 1 and in the case of State of Rajasthan & others Vs. Bal Kishan Mathur (dead) Through Legal Representatives and others, 2014 (1) SCC 592, wherein it has been held as under:-
" It is correct that condonation of delay cannot be a matter of course; it is also correct that in seeking such condonation the State cannot claim any preferential or special treatment. However, in situation where there has been no gross negligence or deliberate inaction or lack of bonafides this Court has always taken a broad and liberal view so as to advance substantial justice instead of terminating a proceeding on a technical ground like limitation. Unless the explanation furnished for the delay is wholly unacceptable or if no explanation whatsoever is offered or if the delay is inordinate and third party rights had become embedded during the interregnum the Courts should lean in favour of condonation. Our observations in Postmaster General v. Living Media India Ltd. : (2012) 3 SCC 563 and Amalendu Kumar Bera v. State of West Bengal : (2013) 4 SCC 52 do not strike any discordant note and have to be understood in the context of facts of the respective cases.
Postmaster General v. Living Media India Ltd. ( supra)
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Amalendu Kumar Bera v. State of West Bengal (supra)
10. ... True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the Appellant is the State but in a case where there are serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection Under Section 47 till the decree-holder puts the decree in execution....
Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in the absence of "sufficient cause" delay shall not be condoned."
Thus, in view of the abvoesaid law as laid down by Hon'ble the Apex Court we in the interest of justice thinks that delay in filing the writ petition may be condoned and is hereby condoned.
So far the other preliminary objections, as raised by Sri R.C. Saxena, learned counsel for applicant-respondent No. 1, as stated hereinabove in regard to maintainability of the writ petition, except in regard to condonation of delay in regard to which we have already condoned.
From the material on record, the position which emerged out is that rather admitted facts that after passing of the judgment and order dated 01.09.2017 by the Tribunal in O.A. No. 75/2010, whereby the Tribunal remitted the matter back to the disciplinary authority to pass a fresh order after taking into consideration the reply of the applicant/R.K. Singh to the inquiry report, without taking into consideration the second stage advice of CVC. Thereafter, the competent authority/Diciplinary Authority has issued a letter dated 12.10.2017 written by the Commissioner/Disciplinary Authority, CGST & Central Excise, Lucknow, which on reproduction reads as under:-
"OFFICE OF THE COMMISSIONER CENTRAL GOODS AND SERVICE TAX & CETNRAL EXCISE 7-A, ASHOK MARG, LUCKNOW Phone/Fax No. 0522-2233049/2233134 NO-II(10)13-Vig/LKO/RKS/17/144 DATE:12.10.2017 To Shri Ravindra Kumar singh Superntendent (Retired) S/o Shir Lalit Mohan singh F-190, Indralok, Krishna nagar, Kanpur Road, Lucknow - 226023 Subject: Disciplinary case against Shri Ravindra Kumar Singh, Inspector [now Superintendent (Retired)] under rule 14 of the CCS (CCA) Rules, 1965- forwarding of Inquiry report Reg.
****** With reference to the Memorandum C.No.-05/Vig/Lko/2001/Pt/411 dated 29.9.2003 issued by Commissioner, Central Excise, Lucknow and in compliance of the order dated 01.09.2017 passed by Hon'ble CAT, Lucknow in O.A. NO. 75/2010 filed by Shri Ravindra Kumar Singh, Superintendent (Retired), please find enclosed herewith a copy of Inquiry report dated 29.07.2009.
In this regard, if you with to make any representation or submission against the said Inquiry report dated 29.07.2009, you may do so in writing the Disciplinary Authority i.e. the Commissioner, CGST & Central Excise, Lucknow within 15 days of receipt of this letter The disciplinary Authority will take decision after considering the representation/ submission, if any, submitted by you.
Encl: As above (V. Valte) Commissioner (Disciplinary Authority) CGST & Central Excise :: Lucknow In response to the abovesaid letter, applicant-respondent No. 1/R.K. Singh submitted his reply/submission on merit before the Disciplinary Authority, which are annexed as C.A.2 and C.A.-3 along with the affidavit filed in support of the preliminary objection taken by the applicant-respondent No. 1,. Further, petitioners, respondents in O.A., have not considered and disposed of the same as per the direction given by the Tribunal.
Further, as per the admitted fact, thereafter petitioners, respondents in the O.A., have moved two applications for extension of the time before the Tribunal which are pending for consideration.
The said facts relates to letter dated 12.10.2017 have been deliberately concealed by the petitioner while filing the present writ petition before this Court.
Taking into consideration the aforesaid facts as well as the fact that when a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (See The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K. P. Srinivas Vs. R. M. Premchand & Ors., (1994) 6 SCC 620).
Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Dectrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.
In the case of Nooruddin vs. (Dr.) K. L. Anand, (1995) 1 SCC 242, the Supreme Court observed as under:
".................Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."
Similarly, in the case of Ramniklal N. Bhutta & Anr. vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Apex Court observed as under :-
"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point...... the interest of justice and public interest coalesce. They are very often one and the same. ...........The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Article 226....indeed any of their discretionary powers.
In the case of M/s. Tilok Chand Motichand & Ors. Vs. H. B. Munshi & Anr., AIR 1970 SC 898; State of Haryana vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., AIR 1999 SC 2284, the Apex Court held that filing totally misconceived petition amounts to abuse of process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose, amounts to abuse of the process of the Court.
In the case of Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Supreme Court had placed reliance upon the judgment in King vs. General Commissioner, (1917) 1 KB 486, wherein it was observed as under :-
"Where an ex parte application has been made to the Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits.........."
In the case of Abdul Rahman vs. Prasony Bai & Anr., AIR 2003 SC 718 and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would be led any fact on the merit of the case.
In the case of S.P. Chengalvaraya naidu Vs. Jagannath, 1994 AIR 853, Hon'ble the Apex Court held as under (relevant portion ):-
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
As well as the fact that applicant-respondent No. 1/R.K. Singh had retired from the service during the pendency of the O.A. before the Tribunal after attaining the age of superannuation on 31.02.2016. The said fact was neither brought on record by the petitioner nor respondents before the Tribunal.
So in view of the abovesaid facts and taking into consideration the fact that once the petitioners have acted and complied the direction issued by the Tribunal vide judgment and order dated 01.09.2017 passed in O.A. No. 75/2010, we are of the considered opinion that the reliefs as claimed by the petitioner for quashing of the judgment and order dated 01.09.2017 passed by Tribunal, cannot be granted.
Further, taking into consideration the admitted position between the parties that as per the direction given by the Tribunal after quashing of the order dated 30.07.2010 by which the penalty has been imposed upon applicant-respondent No. 1, the petitioners had proceeded to issue a letter dated 12.10.2017, to which applicant-respondent No. 1 has already submitted his reply, the competent authority/disciplinary authority is directed to decide the same within a further period of eight weeks from the date of receiving a certified copy of the order in accordance with law which governs the field and while doing so, the finding which is given by the Tribunal while quashing the order dated 30.07.2010 in O.A. No. 75/2010 by which it has set aside the penalty imposed upon the respondent No. 1 shall not be binding rather will not be an impediment in the way of the Punishing Authority.
In the result, writ petition is disposed of with the above observations.
No order as to costs.
(Saurabh Lavania, J.) (Anil Kumar, J.) Order Date :- 18.9.2019 Ravi/