Central Administrative Tribunal - Delhi
Ramesh Kumar Bhatia vs M/O Human Resource Development on 18 September, 2018
Central Administrative Tribunal
Principal Bench
OA No.2848/2015
Order Reserved on: 17.09.2018
Pronounced on:18.09.2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Ramesh Kumar Bhatia, (age 65 years),
S/o late Dr. D.R. Bhatia,
Flat No.208, Baroda House Society,
Plot No.40Q Dwarka,
New Delhi
Prinicpal Grade-II (Retd.)
Kendriya Vidalaya,
Sector 25, Rohini, Delhi.
-Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Union of India through
the Chairman, KVS,
Shastri Bhawan,
Ministry of HRD Education,
New Delhi.
2. The Commissioner,
Kendriya Vidalaya Sanghatan,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi.
-Respondents
(By Advocate: Mr. S. Rajappa)
ORDER
The applicant, at the relevant point of time, was working as Principal of Kendriya Vidyalaya, Sector 25, Rohini, Delhi, when a 2 (OA No.2848/15) memorandum of charges dated 13.08.2007 came to be issued to him, which would read as under:
"9. Shri Bhatia was chargesheeted on the following counts vide memorandum dated 13.8.2007.
i) "He during the year 2003-04 failed to abide by the purchase procedure as envisaged in Chapter 17 of the Accounts Code in the second phase of construction of ten class rooms alongwith toilets of Kendriya Vidyalaya, Sector-25, Rohini as assigned to him by the AC, KVS, R.O., Delhi vide letter No.9/2003-2004-
KVS (DR)/39179-85 and granted the labour contract and contract for supply of building material for construction of temporary building of the Vidyalaya to non-existent firms.
ii) He, during the said period, failed to discharge his responsibilities in the construction of temporary building involving estimated cost of Rs.28 lakh inasmuch as he made the payment of bills, charging inflated rates than the rates quoted in the quotations by the firm. He also made payment of Bill No.51 dated 29.5.2004 for Rs.30,038/- to the firm towards supply of material without any certification of specification, quality and quantity of goods procured.
iii) He, during the said period failed to discharge his supervisory responsibilities as he failed to check the quality of material used and construction going on the site resulting in use of sub-standard material and defective construction by the contractors which led to the damage of building which was subsequently declared risky and unfit for running classes.
iv) He, during the said period, failed to discharge his responsibilities inasmuch as he failed to submit weekly progress report of construction process being carried out in KV. Sector-25, Rohini as sought vide KVS, R.O., Delhi's letter No.9/2003-04/KVS(DR) dated 15.12.2003."
2. A criminal case CC No.01/2012 RC No.26 (A)/2006/CBI/ACB/N.D, under Section 120B read with Sections 420/468,471 IPC and Section 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 also came to be filed against the applicant and four other co-accused by CBI in the Court of Sanjeev Jain, Special Judge, (PC Act), CBI-03, South District, Saket Court, 3 (OA No.2848/15) New Delhi in regard to alleged corruption in the construction of the class-rooms.
3. Pursuant to the memorandum of charges dated 13.08.2007 the applicant submitted his defence statement on 13.09.2007 pleading not guilty of the charges. Not satisfied with the defence statement, the Disciplinary Authority (DA) after obtaining Central Vigilance Commission's (CVC's) advice, appointed an Enquiry Officer (EO). The applicant participated in the enquiry. The EO in his report dated 08.09.2008 held that all the four articles of charges against the applicant stood proved.
4. The applicant was supplied with a copy of the enquiry report by the DA for making submission/representation on the enquiry report within 15 days vide memorandum dated 27.10.2008. The applicant failed to submit his representation on the enquiry report. The Commissioner, Kendriya Vidyalaya Sangathan (KVS) forwarded the records of the case, including EO's report to the DA, namely, Chairman, KVS, who was also the Union Minister for Human Resource Development. The DA, after consideration of the records, passed the following order:
"I have gone through the records relating to disciplinary proceedings against Shri R.K. Bhatia retired Principal, KV Sector-25, Rohini. It clearly comes out that the charges of (i) flouting purchase procedure in the construction of 2nd phase of temporary building of KV, Sector-25, Rohini, (ii) payment of bills at inflated rates as compared to the rates quoted by the firm in its quotation (iii) ineffective control over the construction due to which the building got damaged due to use of substandard material and (iv) non- submission of weekly report have convincingly been held as 4 (OA No.2848/15) proved. In view of the seriousness of the charges, I hereby impose punishment of 25% cut in pension for a period of five years upon Shri R.K. Bhatia, former Principal."
5. The matter was referred to CVC on 15.12.2008 with the tentative views on penalty of the Chairman, KVS, for 2nd stage advice. The CVC advised for imposition of suitable cut in the pension of the applicant. Accordingly, the Chairman, KVS, i.e., the DA imposed the penalty of 25% cut in the pension of the applicant, who had already retired by that time, for a period of five years as absolute. The order of the DA was communicated by Commissioner, KVS, vide impugned Annexure A-1 order dated 27.03.2009. It is stated that in terms of the impugned Annexure A-1 order, 25% deductions from the pension of the applicant for a period of five years has already been done.
6. In the criminal case, the CBI Court, vide its judgment dated 15.09.2014 has acquitted the applicant and other co-accused giving them benefit of doubt. The operative part of the judgment reads as under:
"19. In view of the above findings, prosecution has failed to prove its case against accused persons beyond the shadow of reasonable doubt. Therefore, on account of benefit of doubt, all the accused persons are hereby acquitted. Personal bond and surety bond of accused persons stands cancelled. Original documents of the accused persons and sureties (if any) be returned after cancellation of endorsement (if any). All the accused persons are directed to furnish personal bond of Rs.20,000/- with one surety of the like amount each in accordance with Section 437-(A) Cr. PC with undertaking to appear before the Ld. Appellate Court, in case any appeal is filed by the prosecution."5
(OA No.2848/15)
7. Following his acquittal by the CBI Court, the applicant submitted representation dated 12.11.2014 for refund of the penalty amount of 25% cut in his pension already effected by the respondents. However, the Assistant Commissioner (Vigilance) KVS, vide his Annexure A-2 letter dated 21.01.2015 has declined to accede to his request and has informed him as under:
"In this context, you are informed that on examination of your representation, the Competent Authority has observed that the penalty of 25% cut in pension for a period of 5 years was imposed upon by the Hon'ble Minister of HRD, Govt. of India by exercising powers under the CCS (Pension) Rules, 1972 subject to satisfaction of the findings of the Inquiring Authority in the departmental proceedings. As such, the decision of the Hon'ble Minister of HRD, Govt. of India cannot be reversed automatically. Further, the departmental proceedings and the criminal case stand on different footings. In view of the above, the representation lacks any merit for consideration."
8. The applicant's contention is that after his acquittal in the criminal case, the impugned Annexure A-1 order of the DA has become infructuous and as such he is entitled for refund of the deducted amount from his pension. Since his contention has not been accepted by the respondents, he has approached the Tribunal in the instant OA, praying for the following relief:
"a) Allow the present application and thereby set aside/quash the order vide F.No.5-16/2007-KVS (Vig), dated 27.03.2009 passed by Commissioner Kendriya Vidalaya Sangathan and refund of pension cut in five years & prayed for interest at 18% per annum to be paid to him from the date of order i.e. 27.03.2009 till date."6
(OA No.2848/15)
9. Pursuant to the notices issued, the respondents entered appearance and filed their reply. The applicant has filed rejoinder to the reply of the respondents.
10. With the completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties. Arguments of Shri Jitendra Kumar, learned counsel for the applicant and that of Shri S. Rajappa, learned counsel for the respondents were heard.
11. The main contention of Shri Jitendra Kumar, learned counsel for the applicant was that the very basis of Annexure A-1 order is registration of RC-26 (A)/2006/CBI/ACB/ND dated 29.06.2006 by CBI against the applicant and others. Since the applicant has been acquitted by the CBI Court, vide Annexure A-4 judgment dated 15.09.2014, the Annexure A-1 order of the DA has become infructuous and the applicant is entitled for getting the refund of the amount already deducted from his pension by virtue of Annexure A-1 order. The learned counsel placed reliance on the judgment of this Tribunal in the case of Jagdamba Singh v. Union of India & Others, [OA No.603/2014, decided on 15.12.2014]. He drew my attention to the following portions of the order:
"8. He has further relied upon an order of the co-ordinate Bench of this Tribunal in OA No.1706/2004 - R.K. Gupta Vs. U.O.I. & Others decided on 11.02.2005 wherein it has been held that treating the acquittal of the Applicant as not an honourable acquittal and denying the payment applying Rule 54(4) was wrong. In the said order, the Tribunal relied upon 7 (OA No.2848/15) the judgment of the Supreme Court in the case of Andhra Bank Vs. W.T. Seshachalam 2004 (2) SLJ (SC) 254 wherein it has been held that when criminal proceedings is launched after investigation by an outside agency and the employee is acquitted of the criminal charge, he would be entitled to full pay and allowances as subsistence allowance for the period of suspension. The Tribunal has also relied upon the judgment of the Delhi High Court in Commissioner of Police and Others Vs. Om Kumar and Others 2004 (3) SLJ 272 wherein it was held that if one is acquitted by the court, the entire period of suspension is to be treated as duty for all purposes."
(Emphasis supplied) xxx xxx xxx xxx ".......Therefore, the Respondents could not have denied him full pay and allowances for the period of suspension on the ground that his acquittal in the criminal case was 'on benefit of doubt'."
(Emphasis supplied)
12. The learned counsel vehemently argued that the Tribunal in the aforesaid judgment has clearly held that there cannot be any distinction between the 'acquittal beyond reasonable doubt' and 'acquittal on benefit of doubt'. He said that acquittal is an acquittal and that on the basis of the acquittal all consequential benefits have to flow in.
13. Per contra, Shri S. Rajappa, learned counsel for the respondents submitted that acquittal of the applicant giving him benefit of doubt does not entitle him to his exoneration of the charge in the departmental proceedings. He stated that against a Government official acquitted in a criminal case, giving him benefit of doubt, disciplinary proceedings can still be conducted against him. In this regard, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union Territory, 8 (OA No.2848/15) Chandigarh Administration and Ors. v. Pradeep Kumar and Another, [2018 (1) SCC (Cri) 504], wherein it has been held as under:
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Deputy Inspector General of Police and Another v. S. Samuthiram (2013) 1 SCC 598, in which this Court held as under:-
"24. The meaning of the expression "honourable acquittal"
came up for consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision. Emphasizing upon the importance of character and integrity required for joining police force/discipline force, in Mehar Singh case, this Court held as under:-"
xxx xxx xxx xxx "25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram (2013) 1 SCC 598. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and 9 (OA No.2848/15) under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541, where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings."
xxx xxx xxx xxx "12. While considering the question of suppression of relevant information or false information in regard to criminal prosecution, arrest or pendency of criminal case(s) against the candidate, in Avtar Singh v. Union of India and Others (2016) 8 SCC 471, three-Judges Bench of this Court summarized the conclusion in para (38). As per the said decision in para (38.5), "In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate."
14. Shri Rajappa vehemently argued that after the applicant has undergone the punishment, in terms of Annexure A-1 order dated 27.03.2009, it can be assumed that the Annexure A-1 order is non- existent at this stage. He further submitted that if the applicant is seeking any relief consequent to his acquittal in the criminal case, he should make a proper representation to the DA for consideration and in case of any adverse order passed by the DA on such representation, he can approached the Tribunal and not otherwise.
15. I have considered the arguments of the learned counsel for the parties and have also perused the pleadings. Admittedly, the applicant has been proceeded for the same set of charges both in the disciplinary proceedings and in criminal proceedings. It is 10 (OA No.2848/15) settled law that in criminal proceedings, the charge has to be proved beyond any reasonable doubt whereas establishment of preponderance of the charge in the disciplinary proceedings would be sufficient ground for taking action against the applicant, as laid down by the Hon'ble Supreme Court in the case of Union of India v. Sardar Bahadur, [(1972) (4) SCC 618], the Hon'ble Supreme Court held as under:
"A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings, with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court."
16. Admittedly, the applicant has been acquitted in the criminal case albeit getting the benefit of doubt. It is not an honourable acquittal.
17. I have perused the order of the Tribunal in Jagdamba Singh (supra) relied upon by the applicant. The applicant therein was working as a khalasi in the Railway department. The charge against him was that he has committed rape on his lady tenant. The prosecution could not prove the charge in the trial court and thus he was acquitted getting the benefit of doubt. The Tribunal 11 (OA No.2848/15) had relied on the judgment of the Hon'ble High Court of Madras in the case of Union of India v. Jayaram, [AIR 1960 Mad. 325] and Hon'ble High Court of Gujarat in the case of Ramsinhji Viraji Rathod, Parmanand Society v. The State of Gujarat and Another, [1971 SLR 473], observed as under:
"6.......In both the cases, in spite of the clear observations that there was no evidence against the petitioner, the trial Court observed that the accused are given benefit of doubt and acquitted of the charges farmed against them. Relying on the aforesaid observation, the respondents have denied the benefit of full pay and allowances to the petitioner. In our opinion, the mere use of the expression 'benefit of doubt' or 'not proved beyond reasonable doubt' by the trial Court or the Appellate Court, cannot be permitted to convert an acquittal on the ground of no evidence, to something less than that. The concepts of 'Honourable Acquittal', 'fully exonerated' or 'acquitted of blame' are all unknown to the Criminal Procedure Code, 1973. Therefore, the term 'benefit of doubt' cannot detract from the impact of the acquittal."
(Emphasis supplied)
18. The Tribunal had thus held that the applicant therein was entitled for full pay and allowances for the period of suspension even though his acquittal was on benefit of doubt.
19. I am of the view that the judgment of the Tribunal in the case of Jagdamba Singh (supra) does not apply to the instant case on the ground of facts being different. In Jagdamba Singh (supra) the prosecution could not prove the charge. Further, in the judgments of Hon'ble Madras High Court and Gujarat High Court, on which the Tribunal had relied in Jagdamba Singh (supra), there was no evidence against the petitioners therein. In the instant case, as could be noticed from the operative part of the CBI Court order, 12 (OA No.2848/15) cited at para-6 (supra), the prosecution failed to prove the charge against the accused persons beyond shadow of reasonable doubt. In the other words, there was shadow of evidence but not sufficient enough to prove the charge. The Hon'ble Apex Court in Pradeep Kumar (supra) relied upon by the respondents has clearly held that in the case where an accused Government servant has been acquitted of a criminal charge, getting benefit of doubt, departmental proceedings can still be held. Further, in Sardar Bahadur (supra), the Hon'ble Supreme Court has clearly laid the law that preponderance of evidence is sufficient to prove the charge. Moreover, in the instant case, the applicant has already undergone punishment. Hence, at this stage, I do not consider it appropriate to interfere with the impugned Annexure A-1 order passed by the DA. Accordingly, I dispose of the OA in the following terms:
i) Annexure A-1 order of the DA is not interfere with.
ii) The applicant is granted liberty to submit a comprehensive representation to the DA within a period of four weeks from the date of this order to the DA in view of his acquittal in the criminal case, seeking relief as he deems fit.
iii) The DA shall dispose of such representation within a period of three months from the date of its receipt by way of passing a reasoned and speaking order under intimation to the applicant.13
(OA No.2848/15)
iv) The applicant shall have liberty to take recourse to appropriate remedy, as available to him under law, in case he still remains dissatisfied with the order to be passed by the DA.
20. No order as to costs.
(K.N. Shrivastava) Member (A) 'San.'