Central Administrative Tribunal - Delhi
Harvinder Singh vs M/O Home Affairs on 18 May, 2023
1
Item No. 35 (C-3) O.A. No. 603/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 603/2018 With M.A No. 1321/2018
This the 18th day of May, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Harvinder Singh, Aged about 56 years,
Senior Secretariat Assistant, IB,
S/o. Sh. Ajmer Singh Saini,
R/o. 97-Saini Enclave, New Delhi-110 092.
...Applicant
(By Advocate : Ms. Nancy Shah for Ms. Ruchira Gupta)
VERSUS
1. Union of India, through the Secretary,
Ministry of Home Affairs
North Block, New Delhi - 110 001.
2. Intelligence Bureau, through the Director,
Government of India, North Block,
Central Secretariat
New Delhi-110 001. ....Respondents
(By Advocate : Mr. Rohit Sehrawat for Mr. Rajeev Kumar)
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following main reliefs :-
2Item No. 35 (C-3) O.A. No. 603/2018 "8(i) declare the action of respondents in withholding the order of promotion by DPC of the Applicant which is in seal cover as illegal and Direct Respondents to grant him his due promotion to the post of ASO from the due date with all consequential benefits;
(ii) Direct the Respondents to release the arrears of salary of the Applicant due and payable by treating the period of suspension as period of service for all intents and purposes;
(iii) To grant the Applicant financial upgradation under the ACP/MACP Schemes which were withheld due to the pendency of the criminal proceedings;
(iv) To quash the Articles of Charge dated 09.08.2017 and the appointment of the Inquiry Officer qua Order dated 18.08.2017 being illegal, arbitrary and against the principles of natural justice."
2. The applicant was appointed as LDC in Intelligence Bureau, Ministry of Home Affairs on 13.06.1988. He was promoted to the post of UDC after successfully clearing written examination. Now, he is working as Senior Secretariat Assistant (SSA). A written complaint was filed by one Mr. Suresh Kumar to the CBI, who was then working as PA in the office of the Revenue Secretary, Ministry of Finance against the applicant alleging that on 15.09.2001, the applicant had introduced himself as a CBI Inspector and had extended a veiled threat to the complainant that he is conducting an inquiry against him 3 Item No. 35 (C-3) O.A. No. 603/2018 in respect of a complaint that he along with one Mr. Pyare Lal (the then Under Secretary) had been earning illegal money by illegal means by way of transfers and postings within his Department.
3. It was further alleged that the applicant on the pretext of favouring the complainant by closing the said inquiry made a demand of Rs. One Lakh as bribe amount on the basis of which FIR was lodged against him on 08.10.2001 u/s 170 IPC and u/s 7 of Prevention of Corruption Act, 1988. A Charge sheet was filed against the applicant on the basis of aforesaid FIR and he was taken into judicial custody during the period of 08.10.2001 to 10.10.2001. He was placed under deemed suspension with effect from 08.10.2001 in terms of Rule 10(2) of the CCS (Classification, Control & Appeal) Rules, 1965 vide order dated 11.10.2001. The trial was commenced thereafter and ultimately the applicant was exonerated by the Trial Court on 01.06.2016, the relevant para of the order of the Trial Court reads as under :-
4Item No. 35 (C-3) O.A. No. 603/2018 "15. In view of the foregoing discussion, I have no hesitation to hold that the prosecution had miserably failed on all counts to prove the charge against the accused that he had either pretended himself as a CBI Inspector or had made an attempt to cheat the complainant by making him believe that as a CBI Inspector he was conducting an inquiry against him or to close it off favouring the complainant had demanded bribe amount of Rs. 1 Lac. Thus, accused Harvinder Singh is held not guilty and is accordingly acquitted of the offence punishable u/s 170 IPC, u/s 419 r/w s.511 IPC & u/s 420 r/w s. 511 IP, B/B/S/Bs of the accused are discharged.
File be consigned to record room."
4. After discharge of the accused, the department has issued on 09.08.2017 a charge sheet/memorandum wherein following charges have been framed :-
"That the said Shri Harvinder Singh, SSA, IB Hqrs., New Delhi posed himself as CBI Inspector and used classified official information to threaten and extort bribe of Rs.1 lakh from one Suresh Kumar, PA to Revenue Secretary, Ministry of Finance, New Delhi. He was, therefore, also arrested by the CBI on 08.10.01 and a case vide FIR No. RC-DAI-2001-A-0069 dt. 8.10.01 u/s 170 IPC and u/s 7 of PC Act was registered.
Thus, by his aforesaid acts, Shri Harvinder Singh, SSA failed to maintain absolute integrity and violated Rule 3 of the CCS (Conduct) Rules, 1964."
5. Learned counsel for the applicant submits that identical charges have been leveled against him and he 5 Item No. 35 (C-3) O.A. No. 603/2018 has been subjected to departmental proceedings which are stayed by this Tribunal vide order dated 01.06.2016.
6. After issuing notice, the respondents put appearance through Mr. Rajeev Kumar, learned counsel who filed detailed reply raising preliminary objections as under :-
"1. That the Applicant was arrested by the CBI on 08.10.2001 on the written complaint dt. 08.10.2001 of one Suresh Kumar, working as PA to Revenue Secretary, Ministry of Finance, Room No. 128-B, North Block, New Delhi to SP, CBI, ACB Delhi alleging that on 15.09.2001 at about 11:30 AM one sikh gentleman (aged about 35 years) came to his office and introduced himself as Bedi, a CBI Inspector and informed that he was enquiring into a complaint against him (Shri Suresh Kumar) that he was earning illegal money in connivance with one Shri Pyare Lal, Under Secretary, Ministry of Finance by way of transfers and postings. Shri Bedi took residential address, telephone numbers and other property details from Shri Suresh Kumar.
2. That on 25.09.01 at around 9:30 PM, said Shri Bedi came to his residence and informed that his team was waiting outside and SP, CBI had ordered to seize the property papers, valuable etc from his residence. He also showed an identity Card of CBI bearing the name „Saini‟ Inspector and his photograph. When he became frightened and nervous, Shri Bedi offered to drop the action against him on payment of bribe of Rs. One lakh.
3. That on 2.10.01 at around 1:30 PM Shri Bedi telephone at his residence and inquired about te bribe amount. Shri Suresh Kumar told Shri Bedi 6 Item No. 35 (C-3) O.A. No. 603/2018 that money was being arranged and requested him to contact him in his office.
4. That on 4.10.01, Shri Bedi came to his office at about 1 PM and directed him to come out in the corridor. While coming out of the room, his colleague Sh. Sansar Chand, PA who was also apprised of the matter, accompanied Shri Suresh Kumar. Shri Bedi informed that he had submitted the report in his favour to his senior officer, i.e. SP/CBI and directed to pay the agreed bribe amount of Rs. 1 lakh. Shri Suresh Kumar pleaded to Shri Bedi to give him some more time to which he agreed to come on Monday, i.e. 8.10.2001 at the same time to collect the bribe amount.
5. That on 8.10.01 as soon as Shri Bedi came he (Sh. Suresh Kumar) contacted SP, CBI over telephone to ascertain the genuineness of the said Inspector Bedi. SP, CBI advised him to keep the said Shri Bedi busy till an officer of CBI reaches his office. He, therefore, requested Sh. Sansar Chand to call the CISF security and meanwhile kept Shri Bedi busy. After some time, two officials of CISF (SI Rajinder Kumar & Constable UN Choubey) reached and on being challenged by SI Rajinder Kumar, Shri Bedi told that he is a CBI Inspector. On being repeatedly asked to show his Identity Card, Shri Bedi flashed an Identity Card. As the contents of the card could not be seen, Shri Bedi was asked to hand over the Identity Card. After handing over the Identity Card, Shri Bedi immediately rushed inside his office leaving behind his Identity Card. On perusal of the Identity Card, it was revealed that Shri Bedi was actually Harvinder Singh, UDC, IB, North Block (the Applicant). Meanwhile Sh. A K Malik, Inspector/CBI/ACB reached and he along with SI Rajinder Kumar & Constable UN Choubey went to Gate No. 7 and summoned the Applicant to the reception of Gate No. 7. As soon as the Applicant came, Sh. AK Malik, Insp/CBI/ACB confronted him for posing as CBI Inspector and demanding bribe of Rs. 1 lakh from Shri Suresh Kumar. The Applicant became perplexed and pleaded innocence. He was brought to CBI Office.
7Item No. 35 (C-3) O.A. No. 603/2018
6. That later a case vide FIR No. RC-DA1-2001-A- 0069 dt. 8.10.01 u/s 170/419/420 r/w 511 IPC was registered against the Applicant (Harvinder Singh, UDC @ Bedi) for impersonating as CBI Inspector and trying to extract bribe of Rs. 1 lakh from Shri Suresh Kumar, PA, Office of Revenue Secretary and arrested him on 8.10.01. He was produced before the court on 9.10.01 and remanded to judicial custody till 23.10.01. As he was detained in custody for a period exceeding 48 hrs., he was placed under deemed suspension w.e.f. 8.10.01 vide order No. 1/Vig/2001(164)- 2250-69 dated 11.10.01 (revoked w.e.f. 29.09.04).
7. That during interrogation, the Applicant admitted that during his posting in the personal section of Joint Director/X, IB he had come across one complaint against Shri Suresh Kumar and Pyare Lal that they were extorting money from the employees of Ministry of Finance for their transfers and postings. The concerned office also confirmed that one such complaint was received in the office (where the Applicant was posted). The Applicant had, therefore, posed himself as CBI Inspector and tried to use classified official information for threatening and extorting money from Shri Suresh Kumar. He therefore, violated Rule 3 of the CCS(Conduct) Rules, 1964.
8. That meanwhile the case was examined for initiating Departmental proceedings against the Applicant and referred to Assistant Legal Advisor/ALA (Ministry of Law) who opined that whereas criminal proceedings and Disciplinary proceedings are independent of each other and Disciplinary Proceedings can be initiated despite a criminal case being under trial in a Court of law, yet in a case of grave nature or involving complicated questions of fact of law, it may be advisable to await the verdict of the criminal court. The ALA further opined that this case falls in this category implying thereby that it would be appropriate to wait for the decision of the criminal court. The Disciplinary Authority, therefore, decided to pend initiation of disciplinary 8 Item No. 35 (C-3) O.A. No. 603/2018 proceedings till final outcome of the criminal case against the Applicant.
9. That as per the provisions of FR 53, the Applicant was paid subsistence allowance w.e.f. 08.10.01 @ equal to leave salary which he would have drawn, if he had been on leave on half average pay or on half pay, in addition to DA, CCA, HRA etc. for the first 3 months. Thereafter, his subsistence allowance was enhanced by 50% of the subsistence allowance admissible during first 3 months.
10. That as regards review of suspension of the Applicant, it may be submitted that prior to November 2003, there was no rule/provision in the CCS(CCA) Rules, 1965 regarding review of suspension of the Govt. servant within 90 days from the date of suspension. Later vide DOP&T notification dt. 23.12.2003, sub-rule 6 & 7 were inserted in Rule 10 of the CCS (CCA) Rues, which inter alia provided for periodical review of suspension of the Govt. Servant by the Review Committee. Accordingly, the suspension of the Applicant was reviewed by the Review Committee and on its recommendation, his suspension was extended by 180 days w.e.f. 2.04.04 vide order dt. 2.04.04. On expiry of 180 days on 28.09.04, the suspension of the Applicant was revoked w.e.f. 29.09.04 vide order dated 28.09.04. Further, pending finalisation of the Court proceedings, the Disciplinary Authority vide order dated 2.12.04, treated the period of suspension of the Applicant (08.10.01-28.09.04) non-duty and his pay & allowances were restricted to subsistence allowance already paid to him.
11. That subsequently, the Applicant vide representation dt. 18.01.2017 informed that the Hon'ble Chief Metropolitan Magistrate, Saket Courts vide judgment dt. 1.6.16 has acquitted him from all the charges levelled against him. Accordingly, the Applicant was asked vide memo dated 20.01.2017 to provide a certified copy of the court order which was received on 27.01.2017. Meanwhile, CBI was also requested vide letter dt. 20.01.2017 and subsequent 9 Item No. 35 (C-3) O.A. No. 603/2018 reminders dt. 16.03.2017 & 19.04.2017 to intimate whether any appeal had been filed by them against the judgment dt. 1.6.2016 of Hon'ble CMM, Saket Court. CBI vide letter dt. 1.5.2017, intimated that the competent authority had allowed the matter to rest and no appeal was preferred.
12. That the case was referred to Assistant Legal Advisor/ALA (Ministry of Law) who opined as under:-
"2. It is well settled that on the same charges when there is a criminal proceeding as well as a domestic enquiry, merely because the workman is found innocent in the criminal case, it does not mean that he cannot be found guilty in the departmental enquiry (The Management of Tiruvalluvar Transport Corporation Vs. S Anthonysamy, 2005 (1) CTC 625: [2005(5)SLR 714 (Mad)]. Departmental proceedings and criminal proceedings can run simultaneously and departmental proceedings can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in Criminal Proceedings is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability (Secretary, Ministry of Home Affairs and another Vs. Tahir Ali Khan, Tyagi JT 2002 (Suppl. 1) SC
520.)
3. In view of the above, we are of the opinion that the referring Department may initiate a DE against the officer in the light of judgment of the Hon'ble Court"
13. That after examining the court judgment, documents on record as well as advice of the Ministry of Law, Disciplinary Proceedings under Rule 14 of CCS (CCA) Rules, 1965 were initiated 10 Item No. 35 (C-3) O.A. No. 603/2018 against the Applicant vide memo dt. 09.08.2017 on the charges of posing himself as CBI Inspector and using classified official information for threatening and extorting bribe of Rs. 1 lakh from Shri Suresh Kumar.
14. That as the Applicant in his defence statement dt. 14.08.2017 denied the charges, Inquiry Officer (IO) & Presenting Officer (PO) were appointed to inquire into the charges levelled against him, vide orders dated 18.08.2017.
15. That while the inquiry was in progress, the Applicant filed OA No. 603/2018 in the Hon'ble CAT, PB, New Delhi. Further he filed an MA No. 1321/2018 in the OA No. 603/2018. The Hon'ble Tribunal vide interim order dt. 22.03.2018 stayed further proceedings in the inquiry."
7. It is further stated that he is relying upon the decision in the matter titled as The Management of Tiruvalluar Transport Corporation vs. S. Anthonysamy, 2005 (1) CTC 625 : [2005 (5) SLR 714 (Mad)] wherein it has been held that departmental proceedings and criminal proceedings can run simultaneously and departmental proceedings can also be initiated even after acquittal in a criminal proceedings particularly when the standard of proof in Criminal Proceedings is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceedings, the 11 Item No. 35 (C-3) O.A. No. 603/2018 former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability held in Secretary, Ministry of Home Affairs and another vs. Tahir Ali Khan, Tyagi JT 2002 (Suppl.
1) SC 520.
8. According to the learned counsel for the respondents from the plain reading of the above referred cases it is clear that department can proceed simultaneously with departmental proceedings. He relied upon certain judgments of this Tribunal also however, the copies of those are not in the file.
9. Rejoinder to the reply has also been filed reiterating the facts stated in the OA.
10. Heard Ms. Nancy Shah, learned counsel for the applicant and Mr. Rohit Sehrawat for Mr. Rajeev Kumar, learned counsel for the respondents and perused the records and legal position.
11. The short issue raised before this Tribunal by the applicant is that whether simultaneous proceedings in the 12 Item No. 35 (C-3) O.A. No. 603/2018 department as well as criminal proceedings can be initiated against the delinquent officer or not particularly when the charges are identical.
12. Learned counsel for the applicant has drawn our attention to the judgment passed by the Hon'ble Apex Court in the matter of Corporation of the City of Nagpur, Civil Lines, Nagpur and Another vs. Ramchandra and Others in C.A. No. 396 of 1980 decided on 26.02.1981. The head note of the said judgment reads as under :-
"Labour and Services - Departmental enquiry - Effect of criminal trial - Acquittal of delinquent employee in a corresponding criminal case would not necessarily lead to discontinuance of departmental enquiry pending against him - Continuance or discontinuance of enquiry is a matter to be decided by the concerned authority on facts and in the circumstances of the case."
13. He also relied upon decision of the Hon'ble Apex Court in G. M. Tank vs. State of Gujarat and others in CA No. 2582/2006 decided on 10.05.2006. The Head Note of the said judgment reads as under :-
"Departmental enquiry and criminal proceedings based on the same set of facts, charges, evidence 13 Item No. 35 (C-3) O.A. No. 603/2018 and witnesses - No evidence against employee to hold him guilty - Employee honourably acquitted in criminal trial during pendency of proceedings challenging dismissal - Finding to contrary recorded in departmental proceedings in such case, held, unjust, unfair and oppressive - Dismissal order not sustainable - Hence set aside."
14. In nutshell learned counsel for the applicant submits that Article 20 (2) of the Constitution of India speaks about Double Jeopardy which provides that no person can be vexed twice for the same offence. In the present case the charge sheet issued in the criminal case as mentioned herein above as well as in the departmental proceedings mentioned herein above are not only identical but are same. We have seen that the department has relied upon the List of documents by which the Article of Charges framed against the applicant is proposed to be sustained which is annexed at page 35 of the paper book which contains the Copy of FIR No. RC-
DA1-2001-A-0069 dated 08.10.2001 as well as Letter No. DLI/AC/Cr/3/69(A)/01 dt. 31.07.02 of SP, CBI, ACB, New Delhi along with copy of the Charge sheet in case FIR No. RC-DA 1-2001-A-0069 dt. 08.10.2001.
14Item No. 35 (C-3) O.A. No. 603/2018 15. Learned counsel for the respondents tried to
impress upon us that simultaneous proceedings are not barred as held by a recent judgments in Captain M. Paul Anthony vs. Bharat Gold Mines, JT 1999 Vol. II, 456, M/s. Stanzen Toyotetsu India Pvt. Ltd., vs. Girish decided on 21.01.2014 as well as in SBI vs. Neelam Nag 2016 (9) SCC 491. We are in agreement with the counsel for the respondents that similar proceedings in criminal as well as civil are permissible under the law. However, in the case of same charge the departmental proceedings and the criminal proceedings cannot be identical as already discussed in two judgments referred herein above in G. M. Tank vs. State of Gujarat and Others (supra) as well as Corporation of the City of Nagpur, Civil Lines, Nagpur and Another vs. Ramchandra and Others (supra).
16. Thus, we are of the considered view that the departmental proceedings are not sustainable in the eyes of law on the principle of nobody can be vexed twice.
We hereby set aside the impugned order dated
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Item No. 35 (C-3) O.A. No. 603/2018
18.08.2017 vide which equiry has been held against the applicant vide charge sheet dated 09.08.2017. We hereby direct that the applicant be reinstated in service and respondents are directed to treat the intervening period as period spent on duty. The promotion of the applicant kept in the sealed cover shall be opened and he shall be given all the consequential benefits.
17. This exercise shall be completed by the respondents within a period of 120 days from the date of receipt of a certified copy of this order.
18. The OA stands allowed. Pending M.A(s) if any also stands disposed of accordingly.
There shall be no order as to costs.
(Dr. Anand S. Khati) (Ashish Kalia) Member (A) Member (J) /Mbt/