Central Administrative Tribunal - Jaipur
Amit Kumar Srivastava vs Central Excise & Customs on 1 March, 2023
(OA 198/2014 & OA 405-2014)
(1)
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
O.A.No.198/2014
O.A.No.405/2014
Reserved on:15.02.2023
Pronounced on:01.03.2023
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
O.A.No.198/2014
Amit Kumar Srivastava son of Shri Vishwanath Srivastava,
aged around 38 years, resident of 102 Income Tax Colony,
Malviya Nagar, Jaipur (Rajasthan).
(By Advocate: Shri Amit Mathur)
Versus
1. The Union of India through its Secretary, Ministry of
Finance, Department of Revenue, North Block, New
Delhi.
2. The Commissioner, Customs, Jodhpur Headquarter at
Jaipur, NCR Building, Statue Circle, C-Scheme, Jaipur.
...Respondents.
(By Advocates: Shri Kinshuk Jain)
O.A.No.405/2014
Amit Kumar Srivastava son of Shri Vishwanath Srivastava,
aged around 38 years, resident of 102 Income Tax Colony,
Malviya Nagar, Jaipur (Rajasthan). Presently working as
Sr.T.A. (suspension) at Central Excise, Jaipur.
(By Advocate: Shri Amit Mathur)
Versus
1. The Union of India through its Secretary, Ministry of
Finance, Department of Revenue, North Block, New
Delhi.
(OA 198/2014 & OA 405-2014)
(2)
2. The Commissioner, Customs, Jodhpur Headquarter at
Jaipur, NCR Building, Statue Circle, C-Scheme, Jaipur.
...Respondents.
(By Advocates: Shri Kinshuk Jain)
ORDER
Per: Dinesh Sharma, Member (A):
The two OAs listed above have been filed by the same applicant, following a disciplinary action initiated against him. These cases were heard together, with the consent of the learned counsels of both the parties, and are being disposed of by this common order.
2. The prayer, in the first one of these OAs (OA No.198/2014), is for suspending inquiry proceedings till the evidence in the related criminal proceedings is over. The main prayer in the second OA (OA No.405/2014) is for directing the inquiry officer to provide the applicant certain documents in original, as the charge against him is based squarely on those documents.
3. An interim order dated 18.07.2014 (in OA No.405/2014) was issued by this Tribunal for staying the inquiry proceedings till the next date. However, due to various reasons (for which the matter could not be heard before) the interim order has remained in force till now.
(OA 198/2014 & OA 405-2014) (3)
4. The claim of the applicant, in the first OA, is based on his allegation that the charge for which he is being proceeded against is the same for which there is a criminal case pending against him in a Criminal Court in Delhi. The allegation against the applicant (as per Charge Memo dated 13.08.2013, at Annexure A/1) is that of indulging in a criminal conspiracy, along with a few others, to illegally search and seize some documents which were later returned after extorting money from that businessman. The applicant has stated that he has been falsely implicated in this matter. No prosecution sanction was sought before prosecuting him before the Criminal Court. There is not even a case under the Prevention of Corruption Act charged against him in the Criminal Court. The simultaneous conduct of disciplinary action is not desirable when there are complex questions of law and facts involved, which a court of law is in a better position to decide. Such simultaneous inquiry is also not as per the directions contained in the vigilance manual (Annexure A/7). Such simultaneous conduct would also cause prejudice to the applicant (in defending himself before the Criminal Court) as he would be forced to reveal his defense in the disciplinary proceedings. In the second OA, the applicant has alleged that he has not been given access to the 99 documents, which were allegedly seized during the raid at the businessman's (Shri Sutinder Mohan Jain) (OA 198/2014 & OA 405-2014) (4) premises nor has been provided access to the original seize memo, which forms the basis of the charge against him. Such failure, to provide the originals of the most crucial documents, on which an inquiry is based, seriously hampers the applicant's ability to defend himself and therefore he has prayed for stopping further conduct of this inquiry without providing access to the original documents (alleged seized during a raid conducted by some persons along with him) and the original seizure memo, which is the main ground and the main evidence on which the whole charge and the inquiry is based.
5. The respondents have denied the claims made by the applicant. It is stated, in their replies, that any intervention, at this stage, to stop the inquiry is not warranted. The rules do provide for conduct of simultaneous inquiry (along with criminal trial) as the charges, punishment and the standards of proof are different. There are no complex issues of law involved in this matter. The applicant would have sufficient opportunity to defend himself during the inquiry. In the reply to the second OA, the respondents have stated that the 99 documents which were seized at the time of the illegal raid were returned to the businessman after extorting money, and only a photocopy of the seizure memo was given to the complainant (while retaining the original by one (OA 198/2014 & OA 405-2014) (5) of the raiding party). The list of documents attached with the charge memo clearly mentions only the photo-copy as the evidence, and not the original. The complicity of the applicant is sought to be proved through other evidences, including his signature, voice recordings etc. The applicant would have sufficient opportunity to defend himself during the inquiry and hence the matter need not be stalled at this stage.
6. No rejoinders were filed in either of these cases, despite sufficient opportunity provided to the applicant.
7. The matter was finally heard on 15.02.2023. Besides arguing in favour of their respective pleadings, the learned counsels produced copies of the following judgments, along with their written argument notes:
On behalf of the applicant
i) Ritu Chaudhary vs. Union of India & Ors. of the Delhi CAT (OA No.1011/2013 decided on 06.01.2014)
ii) Devendra Kumar Mehta vs. Union of India and Another of the Rajasthan High Court (2022 SCC OnLine Raj 70).
iii) Harish Chandra Hinunia vs. Food Corporation of India & Ors. of the Madhya Pradesh High Court (2022 SCC OnLine MP 2828).
(OA 198/2014 & OA 405-2014) (6)
iv) Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. And Another (1999) 3 Supreme Court Cases 679. On behalf of the respondents
i) State of Rajasthan vs. B.K.Meena and Ors. (1996) 6 SCC 417
ii) Depot Manager, A.P. State Road Transport Corpn. Vs. Mohd. Yousuf Miya and Ors. AIR 1977 SC 2232 (Larger Bench)
iii) Mahendra Prakash Bhandari vs. Union of India & Ors. of the Rajasthan High Court (SB Civil Writ Petition No.11945/2009 decided on 05.04.2013)
iv) Shashi Bhushan Prasad vs. Inspector General Central Industrial Security Force & Ors. of the Supreme Court [Civil Appeal No(s) 7130 of 2009]
v) Hindustan Petroleum Corporation Ltd. & Ors. vs. Sarvesh Berry, Appeal (Civil) No.7980 of 2004 decided on 09.12.2004.
vi) Chandra Praksh Sharma vs. Union of India & Ors. of the Jaipur Bench (OA No.363/2013 decided on 05.01.2022)
vii) Sushil Kumar Pareek vs. Union of India & Ors. of the Rajasthan High Court (DB Civil Writ Petition No.12524/2022) (OA 198/2014 & OA 405-2014) (7)
viii) Ram Avtar Pabri vs. Union of India of the Jaipur Bench (OA No.183/2021 decided on 07.03.2022)
ix) Union of India and Another vs. Kunisetty Satyanarayana (2006) 12 Supreme Court Cases 28
x) Secretary Ministry of Defence and Others vs. Prabhash Chandra Mirdha (2012) 11 Supreme Court Cases 565
xi) State of Uttar Pradesh vs. Brahm Datt Sharma and Another (1987) 2 Supreme Court Cases 179
8. We have gone through the pleadings and have also perused all the decisions produced by the learned counsels of both the parties. We have no hesitation in concluding that there need not be any intervention from our side in this matter at this stage, on any of the grounds raised by the applicant in these two OAs. Coming to the first OA, the principles governing situations where a simultaneous inquiry is not desirable, are by now, well established. Hon'ble Supreme Court, in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Another (supra), made it very clear that a disciplinary inquiry needs to be stopped when there are identical charges, complex issues of laws and facts and where the charged employee is likely to be prejudiced in defending himself before a criminal court because of revealing his defense in a simultaneous disciplinary (OA 198/2014 & OA 405-2014) (8) proceeding. This decision (Capt. M. Paul Anthony's case) also provides that such inquiry need not indefinitely wait if the criminal proceedings get unduly delayed. We specifically inquired the learned counsel for the applicant about the current stage of these proceedings. We were informed that those some evidence is over, the main complainant is still not examined. However, we cannot fail to take notice of the fact that it is more than 8 years since this OA was filed. This is certainly a very long time and therefore we cannot allow the request of the applicant, made in the first OA, to suspend inquiry till the conclusion of evidence in the criminal case.
9. Coming to the second OA, the applicant is asking for 99 documents, perhaps knowing that these are not likely to be in possession of the Department. Following the filing of this OA (and the interim relief granted by this Tribunal), the respondent department had also checked with the concerned authorities of the Police about whether they had those documents in their possession. The respondents have informed, by filing a copy of the reply received from the Police (Annexure-MAR3), that even they do not have these documents (which had been allegedly returned to the complainant after allegedly extorting money). It is also confirmed by them that only the photocopy of the seized (OA 198/2014 & OA 405-2014) (9) memo is available as evidence. The learned counsel for the applicant vehemently argued that no one can be punished only on the basis of a photocopy, and it is also clearly indicated in the vigilance manual. There may be some weight in this argument, but we do not think that that argument alone justifies our intervention at this stage of an inquiry. We cannot pre-judge that the applicant would be punished following the inquiry and would be punished only on the basis of unsubstantiated pieces of evidence. The charge against the applicant is not just that of illegal raid and seizure of documents, it also indicates his involvement (by way of conspiracy) with others, to extort money and returning these documents after extorting money. The learned counsel for the applicant vehemently denied this and argued that there is no charge against the applicant about extorting money. We are reproducing the whole charge- memo here below, to show that the applicant is also charged of complicity in the whole act for which the charge sheet and the inquiry is proposed:
"Annexure-I Statement of articles of charge framed against Shri Amit Kumar Srivastava S/o Late Vishwanath Srivastava, Senior Tax Assistant of Customs and Central Excise, Jaipur.
Whereas, it is alleged that Sh. Amit Kumar Srivastava S/o Late Vishwanath Srivastava, while posted and functioning as Senior Tax Assistant, Customs & Central Excise, Jaipur Rajasthan, (OA 198/2014 & OA 405-2014) (10) during the period from April, 2012 to May, 2012, failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Govt. Servant in as much as:
(i) Sh. Amit Kumar Srivastava along-with others conducted an illegal and unauthorized search along with other co-accused person on the premises of one Sh. Sutender Mohan Jain at A-
173, Chander Vihar, Delhi-92, on 28.04.2012. Thereby Sh. Amit Kumar Srivastava violated Rule 3 (i) (ii) & (iii) of Central Civil Service (Control) Rules, 1964.
Annexure-II Statement of imputation of misconduct in support of the articles of charges framed against Shri Amit Kumar Srivastava S/o Late Vishwanath Srivastava, Senior Tax Assistant, Customs and Central Excise, Jaipur.
That Sh. Amit Kumar Srivastava during April, 2012 to May, 2012, was posted in Customs & Central Excise, Jaipur Rajasthan as Senior Tax Assistant.
2. That a case No.RC 2172012A0003/ACU-VI- /CBI/ New Delhi U/s 120-B IPC, 419 r/w 511 IPC and Section 7, 8 & 13(2) R/W 13(1)(D) of PC Act, 1988 was registered on 05.05.2012 against said Sh. Amit Kumar Srivastava and others on the allegation that he entered into criminal conspiracy with others with the motive to extort money from one Sh. Sutender Mohan Jain, a private businessman.
3. That in furtherance to the same Sh. Amit Kumar Srivastava and others on 28.04.2012 visited premises of Sh. Sutender Mohan Jain at A- 173, Chander Vihar, Near Mayfair Apartments, Delhi-92 and conducted unauthorized and illegal raid with the motive to extort money to abate the searches.
4. That said Sh. Amit Kumar Srivastava during the alleged illegal and unauthorized search prepared a redemption memo vide which 99 nos. of documents were taken away from the premises of said Sh. Sutender Mohan Jain. Later on, a sum of Rs.4 lacs was extorted by Sh. Manish Sharma and Sh. Parveen Kaushik the other members of (OA 198/2014 & OA 405-2014) (11) illegal and unauthorized raiding party from Sh.Sutender Mohan Jain in lieu of return of said 99 nos. of documents. By this way, Sh. Amit Kumar Srivastava violated rule 3 (i) (ii) & (iii) of Central Civil Service (Conduct) Rules, 1964."
10. Stopping a disciplinary proceedings and inquiry, only on ground that a photocopy of a document is shown as evidence, and no originals are either supplied or are even alleged to be in possession of those conducting inquiry, would, be very pre-mature and could be prejudicial to the interests of both the department and the charged officer. We do not think any injustice would be done to the applicant if the respondents are allowed to proceed with the inquiry, and in fact, he would get sufficient opportunity to defend himself before it is too late. We have gone through all the decisions provided by the applicant's counsel. We do not find any of these fit on the facts of the present case and there is no clear ratio which can be applied on the facts of the present case, to support delaying the inquiry or making it dependent on production of the document(s) sought by the applicant. On the other hand, the cases produced by the learned counsel for the respondents fully support non- intervention by us in a matter like this, at this stage.
11. The OAs are therefore disposed of with direction to the respondents to proceed with the inquiry against the (OA 198/2014 & OA 405-2014) (12) applicant on charges imposed through chargesheet dated 13.08.2013. The applicant should fully co-operate with the conduct of the inquiry which should be concluded as expeditiously as possible. There would be no orders regarding costs. Accordingly, interim orders passed on 18.07.2014 stand vacated.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/