Central Administrative Tribunal - Ahmedabad
S K Kapoor vs Central Bureau Of Investigation on 9 January, 2026
:: 1 :: O.A.No..721 /2016
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.721 of 2016
16
Dated this the 08th day of January, 2026
Reserved On:28.08.2025
08.2025
Pronounced On: 08.01.2026
6
CORAM:
Hon'ble
ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Mr.S. K.
K Kapoor,
S/o Late Shri I.S.Kapoor,
Male, Aged 62 years,
Ex-Dy.S.P,
Dy.S.P, Central Bureau of Investigation
Investigation,
Residing at
10, Siddarth-1,
Siddarth Opp. Jamnagar Dairy,
Saru Section Road,
Jamnagar 361 008 ... Applicant
(By Advocates:
Advocate Mr.Yash Gupta &
Mr.Arpit Kataria)
Versus
1. The Union of India through
Notice to be served through,
The Secretary,
Ministry of Personnel Public Grievances and Pensions
Department of Personnel and Training
Training,
North Block, New Delhi 110 001.
2. The Director,
Central Bureau of Investigation,
CGO Complex, Lodhi Road,
New Delhi 110 003.
3. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi 110 011 .........Respondents
(By Advocate:Ms.R.R.Patel)
Advocate:
2026.01.09
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12:35:29
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ORDER
Per : Hon'ble Dr.Hukum Singh Meena, Member (A)
1. Being aggrieved by the Order No.221/3/2000-AVD.IIB AVD.IIB dated 12.03.2014 by the Disciplinary Authority, the applicant has filed the present OA under Section 19 of the Administrative Tribunal Act, 1985 seeking following relief:
relief:-
"a) (A) Be Pleased to admit and allow this present application (B) Be Pleased to Quash Quash and Set aside the Impugned decision of dismissal, being Order No. 221/3/2000 221/3/2000- AVD.II(B) dated 12/03/2014 (Annex. 1), alongwith the inquiry proceedings (Annexure 2) and the UPSC Advice(Annexure (Annexure-2) Advice(Annexure-3) based on which this order has come to be passed.
(C) Be Be pleased to direct the respondents to grant all consequential benefits to the present applicant which arise on account of the quashing and setting aside of the impugned orders.
(D) Be pleased to pass any further order or directions as the Hon'ble Tribunal Tribunal may deem fit in the interest of justice.
2. This is the second stage of litigation whereby the applicant has filed this application against the order of Disciplinary Authority (DA).
3. Brief facts of the case of the applicant are as follows:
follows:-
3.1 The applicant was promoted from the rank of Inspector to DSP on 25.04.1994 and was posted from Ahmedabad to New Delhi. Subsequently, the applicant submitted a representation dated 05.05.1994 requesting the respondents to change his place of posting from New Delhi to Bhuj which was initially rejected by the competent authority. Thereafter the applicant was transferred to Bhuj on 17.06.1994 and he continued his service at Bhuj upto up 31.01.1995. Subsequently, he applied for 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 3 :: O.A.No..721 /2016 Earned Leave from 23.01.1995 23 01.1995 to 17.02.1995 with permission to prefix 21.01.1995 and 22.01.1995 being holidays on account of Saturday Saturday and Sunday. The application was recommended for sanction sanction by Controlling Authority viz. SP/CBI/SPE, Jodhpur. He had proceeded on leave from 20 20.01.1995 .01.1995 with the knowledge of the Controlling Authority. Meanwhile, a fax message was received from the Joint Director (Admin) CBI, New Delhi on 27.01.1995 wherein it was directed that he was transferred from the present posting of Bhuj to New Delhi. 3.2 It was stated that the applic applicant ant was to proceed to New Delhi immediately because his presence was required urgently for an "emergent investigation", as, it was directed by the Hon'ble Supreme Court, stated subsequently by the respondent. Thereafter, the DIG, CBI/SPE Jaipur who was competent authority to sanction leave, rejected the leave application on 30.01.1995 (Annexure (Annexure-5). In pursuance to the transfer order, the applicant was relieved on 30.01.1995 from the post of DSP at Bhuj and he was further informed that hi his s application for leave had not been sanctioned and was directed to join his posting at New Delhi. 3.3 Thereafter SP, CBI Jodhpur vide letter dated 21.02.1995 (Annexure 7) informed the present applicant that his transfer (Annexure-7) order was still in effect and he was required to report to New Delhi. It was also informed that, that if the applicant failed to do so then serious view would be taken of the matter and disciplinary proceedings could be initiated against him. 3.4 In response to the above direction, the applicant submitted a representation dated 10.03.1995 requesting the competent authority to cancel his transfer order as the same would severely hinder his domestic and personal life. He also submitted to the competent competent authority that his wife was working in the Gujarat Electricity Board, a State Government PSU and as such his wife wife have to shift to New Delhi because his wife 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 4 :: O.A.No..721 /2016 would not be able to join him being in a job which was as not transferable out of state. Moreover, Moreover, he also intimated to the higher authority that he had been transferred to Bhuj only 7 months prior to the Transfer order of January 1995 to New Delhi. However the competent authority rejected the said representation and directed the present appl applicant icant to comply with the order dated 05.04.1995 1995 inspite of the fact that there were guidelines issued by DoP&T to accommodate the husband and wife at the same station/state as far as practical to enable them to lead a normal peaceful existence. 3.5 Thereafter, the respondent authority had issued a charge Memo No.3/46/94-Ad.V No.3/46/94 Ad.V dated 26.05.1995 (Annexure (Annexure-9)
9) by the Director, CBI mainly for unauthorized absence from duty, despite being directed to join duty citing violations of Rule 3 (i)
(ii) and (iii) of CCS (Conduct)) Rules, 196 1968.
3.6 It was mentioned that the present applicant joined duty on 03.07.1995 and submitted his unconditional resignation (Annexure (Annexure-10) notice for a period of 90 days. He also submitted a leave application for 19 days Earned Le Leave ave from 10.07.1995 to 28.07.1995 w.e.f. 08.07.1995 and 09.07.1995 and he proceeded on leave due to extreme domestic problems. 3.7 Applicant further contended that at the relevant point of time, he only had about 18 months of service left towards completion of 20 years in service eligible for retirement benefits. Despite this fact, the applicant had chosen to resign at such a crucial service from CBI which was absolutely indicative of desperation and the utterly compelling circumstances being desperation faced by the applicant.
3.8 Thereafter the SP, CBI, New Delhi informed the applicant that vide letter dated 27.07.1995 that the request for leave had not been sanctioned and he was to report for duty immedia immediately..
He e had already submitted his resignation and in that regard he requested to sanction his Earned Leave until the expiry of the 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 5 :: O.A.No..721 /2016 90 days notice period. Respondent Authority further informed the applicant herein vide their communication dated 23.02.1996 and 25.06.1996 to report for duty on account of his resignation being not accepted by the competent authority. The post of DSP was made a Group A post and accordingly accordingly, the Disciplinary Authority in relation to the present applicant changed from the director, director, CBI to the President of India. 3.9 Consequently, the applicant joined duty at New Delhi on 01.01.1997 and he also attended departmental proceeding hearing on 07.10.1997. However, the applicant objected to the conduct of the inquiry officer on 07.10 07.10.1997 .1997 on the basis of conduct of the inquiry as well as the procedure being adopted by the said officer that inter alia included included,, not preparing any daily order-sheet, order examining unlisted listed witnesses about whom the applicant was not informed and taking on record rd the documents which were not listed in the charge sheet etc.. Subsequently, applicant requested a change in the inquiry officer stating the reason that there was a serious apprehension of the prejudice of the inquiry officer against the applicant. However the Disciplinary Authority vide communication dated 10.11.1997 informed the present applicant that his request for change of the inquiry officer h had d been rejected without mentioning the reason whatsoever and the file was not put up to the Minister/officer concerned as per the Rules for such rejection.
3.10 Thereafter, the applicant submitted another application on 24.06.1998 for change of inquiry officer on the same ground and had been stated in the earlier ap application plication which was submitted to the President of India who was the Disciplinary Authority. However, the applicant received the communication dated 19.08.1998 from the inquiry officer in response to the representation filed by him which also referred the opinion of the legal adviser of the CBI (Annexure (Annexure-13) which clearly 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 6 :: O.A.No..721 /2016 demonstrated that aforesaid decision was not taken by Disciplinary Authority.
Authority Therefore the applicant requested inquiry officer to keep the departmental proceeding in abeyance until his request request was disposed of by the President because earlier ier decision on the application of the applicant was purportedly had been taken by the legal adviser of the CBI which was not a Disciplinary Authority with reference to the applicant herein.
3.11 It was argued that despite protest by the present applicant the inquiry officer did not take any cognizance of the request to keep the departmental proceeding on hold. Therefore, the decision of the respondents was communicated to the applicant on the basis of advice given by the Legal Advisor to the CBI and another note dated 23.12.1998 (A (Annexure-16)
16) by the Assistant Legal Advisor on the basis of note dated 23.12.1998 which was not taken by the Disciplinary Authority. Subsequently, the applicant herein herein requested the Inquiry Officer fficer to keep the proceeding in abeyance till a decision on his original request was taken by the competent authority. In response to the above, the inquiry officer communicated to the applicant vide their letter dated 10.08.199 10.08.1999 (Annexure-18) that his request had been duly considered by the competent authority and the Inquiry uiry officer forwarded a letter no.DPAD5/ 1999/ 02916/3/46/94 dated 02.06.1999 to the applicant issued by the respondent No.2 wherein it had been stated that the applicant pplicant's request to the President of In India dia had been forwarded to the DoP&T DoP&T on 28.10.1998 where on the decision taken by the DoPT/CVC, had been intimated to the IO vide letter dated 08.04.1999. This proved beyond reasonable doubt that the representation of the applicant was not sent to the competent authority within mentioned period. 3.12 That in spite of the request of the applicant applicant,, the said letter dated 08.04.1999 communicated to the Inquiry O Officer fficer by 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 7 :: O.A.No..721 /2016 DoPT/CVC T/CVC was not given to the appl applicant herein. In spite of that the Inquiry Officer fficer submitted his finding to Disciplinary Authority on 07.01.2000. Meanwhile eanwhile, during the interregnum the applica submitted his application for VRS on 20.12.1999 applicant which was denied by the competent authority and communicated to the present applicant vide memo dated 28.03.2000. He had been not paid any salary for the period of absence, despite the fact that he requested his alleged absence may kindly be regularized by sanctioning the leave already due to him. However, there w was as no response from the respondent authority in reference to the aforesaid communication. The applicant received communication dated ed 01.11.20 1 of the Disciplinary Authority which was received on 01.11.2001 05.11.2001 whereby major penalty of dismissal from service was imposed on him along with a copy of the advise dated 17.09.2001 relied upon and given by the UPSC in relation to the case ca of the e applicant was also enclosed.
3.13 Being aggrieved by the said decision and non non-supply of the UPSC advice to him before taki taking ng a decision on the same, the applicant approached this Tribunal by filing OA No.806/2001 whereby this Tribunal decided the case on 20.07.2004 quashed the order of the President of India dated 01.11.2001 and directed the respondent to provide the applicant a copy of the UPSC advice dated 17.09.2001 since the same was taken into consideration before passing the final order and thereafter continued the departmental proceeding from that stage.
3.14 Being aggrieved by the e order of this Tribunal, rrespondent espondent filed an appeal before the Hon'ble High Court of Gujarat in SCA No.7201/2005, which was dismissed and thereafter, the respondent also filed Civil Appeal No.5341/2006 which was decided vide its decision dated 16.03.2011. The Hon'ble Apex Court dismissed di the Civil Appeal of the respondent herein by 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 8 :: O.A.No..721 /2016 upholding the decision given by this Tribunal on 20.07.2004 20.07.2004..
Aggrieved by the decision of Hon'ble Supreme Court, the he respondent preferred the Review Petition (Civil) No.1229/2012 requesting the Hon'ble Supreme Court to review its judgment dated 16.03.2011 in Civil Appeal No.5341/2006. The Hon'ble Supreme Court dismissed the said said Review Petition on account of delay in filing the petition as well as on merits. 3.15 In compliance of the aforesaid judgment of the Hon'ble Supreme Court Court, the respondent the respondent was constrained to withdraw original order dated 01.11.2001 imposing penalty of dismissal on the applicant and placed him under deemed suspension.
suspension. Further, it was direct directed to provide a copy of the he UPSC advice dated 17.09.2001 requiring the applicant to represent against the same following which the Disciplinary sciplinary Authority would take an appropriate decision. 3.16 The he applicant further mentioned that during the initial period d of 12 years, years the respondents did not pay him any salary or subsistence allowance reducing the applicant to penury and indebtedness. Thus the applicant also filed his defence against advice of the UPSC given on 17.09.2001 on the ground that non result of the applicant for request of change of inquiry officer, various discrepancies in the conduct of the departmental proceedings, non-proportionality non proportionality of the penalty imposed etc. However, the respondent had not given any weightage or consideration for the ar arguments guments extended by the applicant herein. Thereafter, Thereafter, the Disciplinary Authority that the President of India imposed major penalty of dismissal on the present applicant applicant on 12.03.2014. Subsequently, he further mentioned that despite the applicant was deemed for suspension from the date of the original order of dismissal on 05.11.2001, the respondents had failed to pay the applicant full 05.11.2001, subsistence allowance for the period from 2001 2001-2014 2014 which 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 9 :: O.A.No..721 /2016 was put to the notice of the Disciplinary Au Authority and other her authorities.
3.17 Thereafter,, the applicant preferred OA No No.28/2015 .28/2015 (Annexure (Annexure-28) seeking subsistence allowance in this Tribunal. The said clarification was allowed by this Tribunal on 23.11.2015 on account of respondents having h handed over ver a part of the amount of subsistence allowance by way of Demand Draft dated 13.11.2015. However no calculation of the subsistence allowance was made available and this Tribunal in its order dated 23.11.2015 directed the respondents to make available a copy of the calculation sheet and clarified that enhancement of subsistence allowance beyond 3 months can be done by the respondents therein within two months. Hence the applicant has filed this OA.
4. Learned counsel for the applicant mainly submitted a as s under:
under:-
4.1 The applicant herein submitted that the mandatory provisions of the CCS (CCA) Rules, 1965 an and d the instructions issued there under by the Government had not been complied with h especially when the applicant requested for change of inquiry officer on the basis of bias, bias, the same was not accepted and the appropriate decision thereof was not taken at the level of competent authority.
4.2 He also referred erred the Hon'ble Supreme Court dictum in the case of H.L.Sethi vs Munici Municipal pal Corporation of Simla 1982 (3) SLR 755 (HP).
(HP). The applicant raised the issue of non payment of subsistence allowance for a long period from 2001 to 2015, which was denied opportunity of effectively defendin defending g his case, which was continued from the stage of supply of UPSC advice subsequent to the setting aside of the dismissal order by this Tribunal which was upheld right up to the Hon Hon'ble 'ble Apex Court. In this case, the applicant herein referred the 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 10 :: O.A.No..721 /2016 direction given given by Hon'ble Supreme Court in Ghanshyam Das Srivastava vs State of Madhya Pradesh AIR 1973 SC 1183. 4.3 The applicant also submitted that the charge sheet was prepared and charges levelled level d without application of mind and further submitted that the respondents invoked Rule 3(1)(i) of CCS (CCA) (CCA) Rules, 1965 which involved a vigilance angle.. However, in the entire narration of the imputations, there was no issue of the integrity.
4.4 It is also an admitted fact that the proceeding with reference to the applicant was conducted ex ex-parte parte without giving an opportunity to defend his case. However, the IInquiry y officer had never drawn a daily order sheet nor supplied the same to the applicant which is mandated by the Vigilance Manual 1991 (Chapter XI, Para 22 page 218) issued by th the e CVC, wherein it was mandated that the daily order sheets are to be drawn up by the Inquiry Officer Officer. Moreover, this daily order sheet was relied upon heavily by the inquiry officer in his report.
4.5 He also referred that there was violation of Rule 1 14 (18) of CCS (CCA) Rules, 1965 wherein herein "the inquiry authority may after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him."
4.6 The applicant submitted that in the case he was not examined by the inquiry officer and report was submitted which was clear violation of Rule 14(18) of CCS (CCA) Rules, 1965 that would vitiate the whole proceeding proceedings on the basis of violation of natural justice. The departmental proceeding conducted was bias as he had submitted number of conducted representation to the Disciplinary Authority for change of representations inquiry iry officer as he was expecting bias in taking the decision 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 11 :: O.A.No..721 /2016 taken after completion of the inquiry however his representations were not placed before the competent authority 4.7 The applicant further submitted that the inquiry officer had admitted the relevant material into inquiry and examined and cross examined witnesses which were not listed in tthe he charge memorandum and he had allowed the certain documents which were not listed in Annexure-III III of Charge Memorandum of Article of Charges 4.8 He has also referred number of case including N.G.Nerli vs State of Mysore 1962 Mys LJ (supp) 480 (ii) State of Assam vs Mahendra Kumar Dass, AIR 1979 SC 1255; 1971 (1) SCR 87, wherein it is established that any material has been collected at the back of the delinquent officer, and such material had been relied upon by the inquiry officer, without being disclosed to the Delinquent Officer, it can be stated that tthe he inquiry proceedings are vitiated."Krishna vitiated."Krishna Chandra Tandon vs Union of India AIR 1974 SC 1589"1974 (4) SCC 374, wherein it was held by the Hon'ble Apex Court that in a charge of immovable properties of the charged officer, the conclusions arrived at by the the Inquiry Officer about this charge on the basis of private iquiries conducted by him behind the back of the appellant was not in order." Similarly, in the case of H.L.Sethi vs Municipal Corporation of Simla, 1982 (3) SLR 755 (HP) it was held that taking new evidence, oral or documentary on record by the inquiring authority without giving fresh opportunity and notice to the delinquent officer in an ex ex-parte parte proceedings constitutes violation of Rules of natural justice." 4.9 He also referred nonpayment of subsequent allowance nce for long period of 13 years i.e. from the year 2001 to 2015 The applicant stated that in the instant case the advice of the UPSC wass not in terms of an approval but it was s in terms of a direction whereby the UPSC states vide Par Para 4 of their advice (Annexure (Annexure-3) that "In the light of their findings as discussed 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 12 :: O.A.No..721 /2016 above and after taking into account all other aspects of the case, the Commission consider that the ends of justice would be met in this case if the penalty of dismissal from service is imposed on Shri S.K.Kapoor. They advise advised accordingly.
4.10 He also raised the issue of punishment amounts to double jeopardy and hence violative of Article 20(2) of the Constitution, the applicant was promoted as DySP on 25.04.1994 however accordingly his pay was not fixed. He was charge sheeted for that period his promotion to DySP and he also joined his duties on 03.07.1995 as DySP proceeded on leave from 10.07.1995 to 31.08.1997 again rejoined his duties from 01.09.1997 had continuously y service in the CBI till his initial dismissal on 05.11.2001. During this period from 1997 to 2001 in spite of several communications, ne neither ither his pay was fixed nor his increments were given though salary w was being paid from 01.09.1997 at Inspector's sca scale.
le. In the intervening period also he had worked from 03.07.1995 to 07.07.1995 07.07.1995,, however, neither pay nor increments were given. All these amount to imposition of a Major Penalty as defined in Rule 11(v) of CCS (CCA) Rules, 1965 since he was continuous kept pt in the lower time scale of Inspector. That being the case it was grossly illegal to hand out a second punishment of Dismissal and is violative of Article 20(2) of the Constitution of India. Therefore he prayed that this OA maybe allowed.
5. Per contra, the respondents filed their reply wherein they denied the averments made by the applicant in the O OA.
5.1 Learned counsel for the respondents submitted that he was posted as Deputy Superintendent of Police at Bhuj Unit Unit,, CBI during the month of January, January, 1995 under the administrative control of SP, CBI, Jodhpur. At that time the applicant gave an application to SP, CBI/Jodhpur for grant of 26 days of Earned Leave w.e.f 23.01.1995 to 17.02.1995 which was forwarded to DIG, CBI, Jaipur who was the competent authority to grant EL.
2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 13 :: O.A.No..721 /2016 DIG CBI Jaipur did not sanction the said leave. Meanwhile he was asked to report for duty at New Delhi on 30.01.1995 .1995 because his services were required in connection with an emergent investigation. It was also stated that there was a time bound reference for investigation in a matter as per the order off Hon'ble Supreme Court and hence he e was asked to report for duty immediately. He did not report for duty and remained unauthorized absent from duty due to the pendency of his application for EL.
EL The applicant was accordingly informed on 21.02.1995 The applicant submitted his representation on 21.02.1995.
10.03.1995 requesting to cancel his transfer order and reposting him to post at Bhuj Unit. This representation of the applicant herein was considered and rejected by the competent authority which was communicated to him by SP, CBI Jodhpur on 05.04.1995 by Registered AD post vide endorsement to telegram.
5.2 Counsel for the respondent submitted tthat hat despite intimations dated 21.02.1995 and 05.04.1995 the applicant remained absent therefore the Charge Memo dated 26.05.1995 was served upon the applicant for the charges and were mentioned in Annexure I of the said Charge Memo. The applicant was also called upon to submit his defence statement in response to the Charge Memorandum within 16 days from the date of receipt of the same.
5.3 Counsel for the respondent submitted that in response to the charge Memorandum, Memorandum the applicant submitted his defence statement on 03.06.1995 whereby he denied the charges. Thereafter, in order to comply the provisions of Rule 14 of CCS (CCA) Rules, 1965, 1965 Inquiry nquiry Officer was ap appointed pointed by Respondent No.2 on 14.08.1995 and P Presenting Officer fficer was appointed on 17.08.1995. The inquiry officer fixed the primary hearing and for this purpose the request was sent to SP, CBI, ACU-IV, IV, New Delhi requesting him to intimate the applicant to 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 14 :: O.A.No..721 /2016 attend the hearing.
hearing In response to the above, it was informed that the applicant was not attending the office since 10.07.1995 and his whereabouts were also not known. Therefore, herefore, residential address of the applicant at Ahmedabad was sent to the Inquiry Officer.
5.4 It was further stated that the Inquiry Officer then sent fax message on 07.03.1996 to SP, CBI, Ahmedabad informed that the whereabouts of the applicant were not known. Thereafter, the Inquiry Officer in consultation with the higher officers suspended the inquiry for some period a and nd meanwhile directed to continue the efforts to find out the whereabouts of the applicant and some letters were also sent to applicant's place to contact him. However his whereabouts were not revealed by his family members. Subsequently, the Inquiry was fixed on 06.02.1997, 05.03.1997, 15.05.1997 and 03.06.1997. However, the applicant did not participate in the inquiry. Therefore herefore the inquiry could not proceed further. The persons were also sent to the applicant's place of residence to contact him. But his whereabouts were not revealed by his family members and his wife refused to reveal his whereabouts. 5.5 Thereafter, the Inquiry Officer decided to proceed with the inquiry ex-parte ex parte on 03.06.1997. Statements of witnesses were recorded on 04.06.1997, 04.06.1997, 06.06.1997, 09.06.1997 and 15.07.1997. The Inquiry Officer also recorded the statement of unlisted witnesses mainly those persons who were sent to the place of the applicant either to deliver him letter, fax message or telegram. This was done by the IInquiry nquiry Officer with a view to bring on record as to what steps were taken by those persons who had gone to find out the whereabouts of the applicant thereupon gave him due intimation about the inquiry inquiry..
It was informed that the applicant joined duty in the office of ACU.IV, New Delhi on 01.09.1997. Therefore, he fixed the ACU.IV, inquiry on 07.10.1997
07. 0.1997 and informed the same to the applicant.
2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 15 :: O.A.No..721 /2016 The applicant attended the inquiry but raised several objections. The applicant also requested for engaging Defence Assistance and sought 10 days time. However, for the reasons best know to the applicant he did not engage any Defence Assistant even after allowing him two months time. Thereafter the inquiry was fixed by the Inquiry officer and dates were intimated to the applicant herein. However the applicant had not attended the inquiry on the vague reason he had given a representation.
5.6 It is relevant to mention that the representation of the applicant were duly du considered by the competent authority and declined and communicated to the applicant vide letter dated 10.11.1997. Meanwhile, the applicant submitted his request letter dated 30.09.1997 which was intimated by the Head Office to the Inquiry Officer on 27.11.1997.
27.11.1997.
5.7 It was mentioned that the Inquiry Officer again fixed the date for recording evidences of witnesses on 24.06.1998 and on that day the applicant attended inquiry. However However, instead of proceeding further, he gave another representation and requested for keeping the inquiry pending which was forwarded to Head Office. Subsequent dates were fixed for inquiry by the Inquiry Officer on 24.08.1998 and 25.08.1998. The applicant did not attend the inquiry nor sent any intimation. 5.8 The counsel for the respondent submitted that tthe he inquiry was also fixed on 24.09.1998 for submission of list of defence witnesses and documents to be relied upon by the applicant and Instead of submitting his list of witnesses and doc documents, uments, he went on stating the same fact that inquiry should be kept waiting as his representation was not decided. 5.9 Subsequently, the Inquiry Officer fixed the inquiry on 28.09.1998 and Presenting Officer submitted his brief dated 01.10.1998 and the copy thereof was forwarded to the applicant. Again the inquiry was fixed on 12.10.1998 for 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 16 :: O.A.No..721 /2016 submission of defence brief if any. However, the applicant did not attend the inquiry but submitted his representation addressed to Central Vigilance Commissioner which was also forwarded to Head Office. Subsequently, he received communication from the Head of office on 09.04.1999 requesting him to complete the inquiry expeditiously and the Inquiry Officer forwarded the same to the applicant. Thereafter, Inquiry Officer fixed the inquiry on 05.05.1999 for submission of his defence brief as well as the list of his witnesses if any. Initially the applicant did not attend the inquiry and insisted to have the decision only of the competent authority and which was sent to the Head Office. 5.10 In response to the above, the Inquiry Officer submitted his report dated 07.01.2000 after considering all the documents documents;;
entire ntire material on record and concluded the findings that the charges levelled against the applicant were proved. The copy of the report was sent to the applicant vide letter dated 25.01.2000 and he was called upon to make his representation to Disciplinary Authority.
5.11 The respondent further submitted with reference to the representation of the applicant dated 10.02.2000 wherein he had alleged that there had been gross violation of natural justice and fair play by the Inquiry Officer and that the inquiry was conducted in preconceived manner. It was stated that the applicant was repeatedly given cha chance nce to defend his case and submit the list of defense witnesses and documents which were not exercised by the applicant. Thereafter, Disciplinary Authority prima facie came to the finding that the charges levelled against the applicant stood fully proved. Therefore herefore Disciplinary Authority sought statutory advice of Respondent No.3 3 i.e. UPSC.
5.12 It wass also stated that the Respondent No.3 examined the case of the applicant from all aspects and therefore came to 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 17 :: O.A.No..721 /2016 conclusion that entire material on record, tthe he charges levelled against the applicant had been duly proved and Respondent No.3 therefore advised that justice would be delivered if the penalty of dismissal from service on the applicant is imposed. 5.13 Being aggrieved by the decision of non non-supply of UPSC advice to the applicant, the applicant filed OA No.806/2001 before this Tribunal and this Tribunal vide its decision dated 20.07.2004 quashed the order dated 01.11.2001 and directed the respondents to provide copyof U UPSC PSC advice dated 17.09.2001 to the the applicant and thereafter continued the departmental proceedings from that stage. The respondents had challenged the order of this Tribunal but could not succeed and accordingly vide order dated 27.08.2013 the respondents withdrew the Original Order dated 01.11.2001 and provided the copy of UPSC advice dated 17.09.2001 to the applicant requiring him to represent against the same following which the Disciplinary Authority would take appropriate decision. 5.14 In response to the same the applicant submitt submitted his representation dated 18.11.2013. After carefully considering the advice of the commission dated 17.09.2001; the representation dated 18.11.2013 3 of the applicant along with all other er aspects relevant to the case; the President of India vide order dated 12.03.2014 in his capacity as Disciplinary Authority imposed a Major penalty of dismissal from the service on the applicant. Therefore on the basis of the above fact and circumstances, the order of the Disciplinary Authority was just and proper, proper there is no merit in the Original application and same may be dismissed on the grounds mentioned above.
6. Heard the learned counsel for both the parties at length and perused the documents on record.
7. It is a fact that the applicant while working as DySP had transferred to Bhuj and applied for EL Subsequently, the applicant was transferred to Bhuj on 17.06.1994 and he 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 18 :: O.A.No..721 /2016 continued his service at Bhuj up to 31.01.1995. Thereafter, he applied for Earned Leave Lea from 23.01.1995 to 17.02.1995 with permission to prefix 21.01.1995 and 22.01.1995 being holidays on account of Saturday and Sunday. The application was recommended for sanction by Controlling Aut Authority hority viz.
SP/CBI/SPE, Jodhpur to DIG, CBI, Jaipur. He had ad proceeded on leave only from 20.01.1995 with the knowledge of the Controlling Authority. Meanwhile, a fax message was received from the Joint Director (Admin) CBI, New Delhi on 27.01.1995 wherein it was directed that he was transferred from the present posting of Bhuj to New Delhi. Being aggrieved, the applicant filed a representation which was considered and rejected by the competent authority and was communicated to him by SP, CBI Jodhpur on 05.04.1995 by Registered AD post vide endorsement to telegram.
teleg
8. Despite espite intimations dated 21.02.1995 and 05.04.1995 the the,, applicant remained absent; therefore, a decision was as taken to initiate disciplinary proceedings for his unauthorized absence. For this the Charge Memo dated 26.05.1995 was served upon the applicant for the charges as mentioned in Annexure I of the said Charge Memo. The applicant was also called upon to submit ubmit his defence statement in response to the Charge Memorandum within 10 days from the date of receipt of the same.
9. In n response to the charge Memorandum, the applicant submitted his defence statement on 03.06.1995 whereby he denied the charges. Thereafter, Thereafter, in order to comply the inquiry, Inquiry Officer was appointed by Respondent No.2 on 14.08.1995 and Presenting Officer was appointed on 17.08.1995. Several times the applicant did not attend the inquiry rather he asked to change the Inquiry officer. The he Inquiry Officer submitted his report dated 07.01.2000 after considering all the documents and entire material on record and 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 19 :: O.A.No..721 /2016 entered into the findings that the charges levelled against the applicant were proved. The copy of the report was sent to the applicant vide letter dated 25.01.2000 and he was called upon to make his representation to Disciplinary Authority.
10. It is also stated that the applicant made his representation dated 10.02.2000 wherein he had alleged that there had been gross violation of natural justice and was lack of fair play by the Inquiry Officer and that the inquiry was conducted in preconceived manner. Being aggriev aggrieved by the decision of non-- supply of UPSC advice to the applicant, the applicant filed OA No.806/2001 before this Tribunal and this Tribunal vide its decision dated 20.07.2004 quashed the order dated 01.11.2001 and directed the respondents to provide copy off UPSC advice dated 17.09.2001 to the applicant and thereafter continued the departmental proceedings from that stage.
11. The respondents had challenged the order of this Tribunal but could not succeed and accordingly vide order dated 27.08.2013 the respondents respondents withdrew the Original Order dated 01.11.2001 whereby the applicant was dismissed a and nd provided the copy of UPSC advice dated 17.09.2001 to the applicant requiring him to represent against the same following which the Disciplinary Authority would tak takee appropriate decision. In response to the same the applicant submitted representation dated 18.11.2013. After carefully considering the advice of the commission dated 17.09.2001, the representation dated 18.11.2013 of the applicant along with all otherr aspects relevant to the case, the President of India vide order dated 12.03.2014 in his capacity as Disciplinary Authority imposed a Major penalty of dismissal on the applicant.
12. The argument of the applicant is not acceptable that there was violation of principle of natural justice or adequate opportunity has not been given to the applicant as itt is evident from the record that at Inquiry Officer/Disciplinary Authority had d 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 20 :: O.A.No..721 /2016 given adequate opportunity to the applicant to def defend his case,, however, the applicant had not co-operated co operated in the inquiry on the pre-text text that he had given representation for change of Inquiry Officer, however, the representation was decided; rejected and also communicated to the applicant herein.
13. Moreover, there re are number of dictum by Hon'ble Supreme Court wherein the scope of judicial review of the departmental proceeding has been restricted to cases wherein the orders issued by incompetent authority, failure of natural justice, case of no evidence and there is a malice or bias action on the part of the respondents.
14. The basic issues which are to be decided by this Tribunal are based on the direction issued by the Hon'ble Apex Court to observe that there is a limited scope to review the disciplinary proceeding especially by the Tribunals and Hon'ble High Courts. The Tribunal can intervene in the disciplinary proceedings only when it appears that that-
(i) There is a violation of compliance of natural justice in conducting the inquiry.
(ii) The result of the inquiry report thereof, decision of the DA is without any evidence.
(iii) The charge sheet has been issued by incompetent authority.
(iv) The decision is taken on the basis of malaise and perverse.
(v) Error of procedure in disciplinary proceedings.
14.1 In this regard it is profitable to mention some of catena of judgments on the point of scope of judicial review of disciplinary proceedings of the Courts/Tribunals, the Three Judges Bench of the Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80] wherein it has been held as under
under:
2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 21 :: O.A.No..721 /2016 "13.. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, 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 [Union Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR p. 728 (AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suf suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
14.2 In another judgment rendered by the Three Judge Bench in the case of SBI vs. Ajay Kumar Srivastava Srivastava,, reported in (2021) 2 SCC 612: (2021) 1 SCC (L&S) 457, by referring the law laid down in B.C. Chaturvedi (supra) and catena of other judgments, judgments the Hon'ble Apex Court held as under:
under:-
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injusinjustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority............"
23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh ahesh Dahiya Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Judge Bench of this Court in Pravin 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 22 :: O.A.No..721 /2016 Kumar v. Union of India [Pravin Pravin Kumar v. Union of India,, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103].
24. It is thus settled that the powe power of judicial review, of the constitutional courts, is an evaluation of the decision-making making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary aut authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When hen the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry,, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 23 :: O.A.No..721 /2016 may record ecord his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceed proceedings.
However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The constitutional court while exercising its jurisdiction of judicial review under Ar Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a findifinding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
14.3 Further, the Hon'ble Apex Court in the State of Karnataka &Anr. vs. Umesh, (2022) 6 SCC 563: (2022) 2 SCC (L&S) 321, emphasised about the scope of judicial review of the Courts/Tribunal in the matter of disciplinary/departmental inquiry and held that:-
that:
"22.
22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the ccourse of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 24 :: O.A.No..721 /2016 the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory tory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
15. From perusal of the he Hon'ble Supreme Court directions and the facts as mentioned hereinabove, it is clear that although the scope of judicial review in the cases of disciplinary proceedings by the Courts/Tribunals is limited, however, Tribunals can intervene in the case whe wherein rein the decisions have been taken by the incompetent authority in the absence of any evidence or record or the findings are perverse and bias and violation of principles of natural justice.
Mere perusal of the above evidences and documents discussed hereinabove, her in our considered view there is no violation of natural justice, the applicant had been repeatedly given opportunities to defend his case. He has defend defended his case e according to his own choice.
choice. The Inquiry Officer had put all endeavors to ensure the defence of the applicant. There are evidences which proved that the Disciplinary Authority and the Inquiry Officer had tried to find out the address of the applicant to deliver the notice, notice, however, the address was not traced and even his wife wife was asked to disclose his whereabouts, but,, the address of the applicant was not disclosed even by his wife. It is also a settled principle that once the charge sheet is issued and the applicant was suspended or on duty, it was incumbent on the part of the the applicant to follow up the Inquiry. Therefore, it proves on the principle of preponderance of probability that applicant had deliberately avoided to participate in the inquiry and submit his defense. Hence, there was no violation of principle of natural justice. Moreover, this is not a case of no evidence. The he order of imposing penalty had be been n issued by 2026.01.09 SEEMA 12:35:29 SANTHOSH +05'30' :: 25 :: O.A.No..721 /2016 the competent authority as mentioned by the respondent herein. Therefore, on the basis of the above there is not merit in the above OA and same is dism dismissed. Pending MAs,, if any, also stands disposed of. No order as to Costs.
(Dr. Hukum Singh Meena) (Jayesh V Bhairavia)
Member (A) Member (J)
SKV/PV
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