Central Administrative Tribunal - Delhi
Chandu Venkateswarlu vs Union Of India Through on 19 December, 2011
Central Administrative Tribunal Principal Bench OA No.2566/2010 New Delhi, this the 19th day of December, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Chandu Venkateswarlu S/o Late Chandu Suryanarayana Aged about 38 years, R/o Flat No.F-27, Arya Nagar Apartments, IP Extension, Delhi 110 092. . Applicant. (By Advocate : Shri A. K. Behera) Versus 1. Union of India through The Secretary, Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), North Block, New Delhi 110 001. 2. Director Central Bureau of Investigation CGO Complex, Lodhi Road, New Delhi. Respondents. (By Advocate : Shri T. C. Gupta) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Chandu Venkateswarlu, the applicant herein, is aggrieved by the order passed by the competent authority dated 20.02.2010 communicated to him vide order dated 9.03.2010 (Annexure-A1) whereby the applicant was imposed major penalty of compulsory retirement from service as Deputy Superintendent of Police (DSP) from Criminal Bureau of Investigation (CBI) which was inflicted on the basis of the findings in the enquiry conducted against the applicant. The penalty order having been issued in the name of the President, finding no other remedies, he has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
(i) call for the records of the case;
(ii) set aside and quash the impugned order dated 22.02.2010 (Annexure A-1 to the OA) issued by Respondent No.2 on behalf of and in the name of President of India imposing upon the applicant the penalty of compulsory retirement from service;
(iii) direct the respondents to reinstate the applicant in service as if the impugned order dated 22.02.2010 had never been passed with all consequential benefits including arrears of pay and allowances and continuity in service;
(iv) direct the respondents to pay the cost of litigation to the applicant;
(v) pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
2. The factual matrix of the case would disclose that the applicant who joined CBI as directly recruited DSP in 1997 was posted in the Economic Office Wing (EOW) of CBI at Chennai. While working there, a case RC07(E)/2000-Chennai u/s 120-B read with 409, 420 IPC and Section 6 & 13 read with Section 25 of Foreign Contribution (Regulation) Act (FCRA), 1976 was registered in Chennai Branch of CBI on 19.12.2000 against Shri P. K. S. Madhavan, Chairman-cum-Chief functionary of an NGO, namely Action for Welfare and Awakening in Rural Environment (AWARE), Hyderabad, and others. Initially the matter was under investigation with Shri M. J. James, Inspector, CBI and after his repatriation, the case was entrusted to the applicant vide order dated 29.03.2001. In the said case, the allegation was that the AWARE was involved in the FIR under FCRA for receiving the foreign contributions. In June, 1994, the Ministry of Home Affairs (MHA) received a complaint from a Donor Agency alleging therein that AWARE was maintaining two separate sets of accounts by employing 2 different auditors. One set was for the MHA under FCRA and the second set of accounts for submission to the Donors for soliciting donations. The cash and bank balance in both the accounts differed. The accounts submitted to MHA reflected the assets to the tune of `43crores, whereas those were shown to the Donors as `7.8crores. Thus, the case against the AWARE was on the allegation of misappropriation of fund and falsification of accounts. During the investigation, it was learnt that the applicant availed hospitality from the accused organization AWARE. A preliminary enquiry was registered against him and on enquiry it was noticed that the applicant visited Vishakhapatnam in May, 2001 and Rajahmundry in June, 2001 and got accommodations booked in Hotels from the Directors of AWARE. Print outs of telephone bills revealed STD calls were made by the officers of AWARE to those Hotels prior to the applicants visit which was confirmed by the Directors of AWARE in their statement and also corroborated from the Hotel records. It is further alleged that Bill No.2647 dated 26.05.2011 amounting to `3584/- regarding his stay in Hotel Dolphin, Vishakhapatnam was found signed by one of the Directors of the accused organization (AWARE), at the place meant for guest signature. It is noticed that the officers of AWARE denied the same, lest they would have been booked under the Prevention of Corruption Act if the same would have been admitted as it would be a case of bribing the applicant who was Investigating Officer of CBI against AWARE. Further, it is alleged that Mohd. Aslam, the police Constable who accompanied the applicant also stayed in Hotel Prince, Vishakhapatnam at his instance who himself did not stay in Hostel Prince but got a false bill through Mr. Aslam issued from Hotel Prince in their joint name in order to fraudulently claim the said amount from Government and to hide his stay in the Hotel Dolphin. Further, it is stated that in CBI a high degree of discipline and integrity was required to be maintained by its officers and the applicant failed to maintain the same. Therefore, on the advise of the Central Vigilance Commission (CVC), a disciplinary proceeding for major penalty was initiated against the applicant. A charge memorandum dated 27.01.2004 (Annexure-A2) was issued to the applicant to which he submitted his written statement of defence denying the Article of charge vide his letter dated 20.02.2004 (Annexure-A3). Consequently, Shri Alok Ranjan, Superintendent of Police (SP) CBI was appointed as Inquiry Officer (IO) vide order dated 6.05.2004 to enquire into the charges framed against the applicant. The IO in his report dated 29.05.2006 held the charges as proved against him in consultation with CVC, the applicant was furnished a copy of the Inquiry Officers report along with a copy of the advice of the CVC vide Memorandum dated 13.04.2007 (Anneuxre-A7). On receipt of the same, the applicant submitted his written representation dated 21.05.2007 (Annexure-A9). After considering the representation of the applicant and the advice of the CVC, the Disciplinary Authority considered it necessary for getting further advice of the CVC. Accordingly, the second stage advice was sought. The CVC in its OM dated 16.05.2008 observed that there was no tangible grounds for revising its advice as the IO has accepted certain circumstantial evidences, which was strong enough to prove the charge against the applicant. Accordingly, on reconsideration, the CVC reiterated its earlier advice for imposition of a suitable major penalty on the applicant. After considering the facts of the case, the Disciplinary Authority tentatively decided that the applicant deserved to be imposed with a major penalty and the matter was referred to the Union Public Service Commission (UPSC) vide letter dated 30.10.2008 statutory advice. The UPSC gave its report vide letter dated 18.03.2009, wherein, it was observed that the evidences were available to prove that the applicant got the accommodation booked at Hotel Dolphin in Vishakhapatnam and at Hotel Apsara in Rajamundary from the officers of AWARE. The UPSC after considering the oral, circumstantial and documentary evidences available on record concluded that the article of charge levelled against the applicant stood proved and advised the Disciplinary Authority that the ends of justice would be met if the penalty of compulsory retirement is imposed on the applicant. On consideration of these facts, the competent authority accepted the advice of UPSC and finally imposed the penalty of compulsory retirement from service on the applicant vide order dated 22.02.2010 (Annexure-A1). Feeling aggrieved by the above order, the applicant is before the Tribunal in the instant OA.
3. Highlighting the above facts of the case, Shri A. K. Behera, learned counsel for the applicant would submit that legal infirmity has crept in as the Disciplinary Authority consulted the UPSC and has gone by the advice of the UPSC as reflected in the penalty order, whereas, the applicant has not been supplied with a copy of the UPSC advice report. To that extant, the Disciplinary Authority has violated the principles of natural justice and the applicant having been prejudiced by the non supply of the UPSC report the OA should be allowed on this principal ground alone, by setting aside the impugned penalty order. Going into the merits of the case, Shri Behera took us through the various evidence which have emerged in the enquiry and, more specifically, entries made in the Hotel Dolphin registered on 23rd May, 2001. He submitted that the prosecution witnesses brought in by the respondents did not support the case of the prosecution. On the other hand, it is submitted that the applicant has made all the payments in both the Hotels. The entries indicated in Hotel Dolphin register would reveal that there was one entry by the Officer of AWARE Group and another entry by the applicants uncle. This repeat entries would indicate that the applicants uncle had booked the Hotel for his stay and applicant was unaware of why and how the NGO AWARE had booked room in the same hotel for the same days. His submission is that applicants uncle Shri Ram Babu has given corroborative evidence to the effect that he has booked the Hotel for the applicant and non consideration of his statement by the IO has led him to conclude that the charge was held as proved. Shri Beheras contention is that the Inquiry Officer and Disciplinary Authority have prejudged the case without proper application of mind and have held him guilty based on surmises and conjuctures. He, therefore, submitted that on the basis of the above contentions, the OA should succeed and the impugned penalty order inflicted on the applicant should be quashed and set aside, with the direction to reinstate into service.
4. On receipt of the notice from the Tribunal, the respondents have entered appearance and have submitted their reply affidavit on 21.01.2011. Shri T. C. Gupta, learned counsel representing the respondents would submit that the applicants claim was that he stayed in Hotel Dolphin, Vishakhapattnam against his booking got done by his uncle in law. It is countered by Shri Gupta indicating that PW-1 (Shri P. V. Rammana), PW-2 (Shri K. Ravi Kumar), PW-3 (Shri Satyanarayana), Directors of AWARE have stated during enquiry that the booking in Hotel Dolphin, Vishakhapatnam for the applicant was got done by AWARE, on the request of the applicant. Bill No.2647 dated 26.05.2001 for Rs.3,584/-regarding stay of the applicant in Hotel Dolphin had been signed by PW-3 Shri K. Ravi Kumar, (Directors of AWARE) at the place meant for Guest Signature. It is submitted that at this place, either the applicant, who stayed in the Hotel or Shri P. Rambabu, his wifes material uncle, who claimed to have cleared the bill, should have signed, instead one of the Directors of the AWARE had signed. During the departmental proceedings, the applicant or his wifes maternal uncle (Shri P. Rambabu) could not give any plausible reasons for the signature of Shri K. Ravi Kumar on the applicants Hotel bill. The entries of this amount were also found in the personal notebook of Shri K. Ravi Kumar, Director of AWARE. Shri Gupta further submitted that from the call list of telephone No.4037601 installed in the office of AWARE, Hyderabad revealed 14 STD calls by the officers of AWARE prior to the visit of the applicant to these places. From the facts, circumstances & evidence on record, as discussed above, Shri Gupta submits that there remains no doubt about the applicant being guilty of availing hospitality from AWARE. It is submitted that the finding of Enquiry Officer has been examined and considered by DOP&T, CVC and UPSC, which are independent agencies, not under the control of CBI and have advised the Disciplinary Authority properly. It is pertinent to mention hear that Honble Supreme Court in the case of Bank of India Vs Degala Suryanarayana [(1995) 5 SCC 762] has held that Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectively may arrive at a finding upholding the grave men of the charge against the delinquent officer. In the case of P Joseph John Vs state of Travancore, Cochin, [AIR 1955 SC 160], Honble Supreme Court has held that The provisions of the Indian Evidence Act are not strictly applicable, so, it is not relevant to consider if facts have been proved according to law. It is permissible in a departmental enquiry to look into documents or records which strictly speaking would not be evidence in a Court of law, but with one safeguard. Any document or record which is looked into or relied upon must be disclosed to the delinquent and he must be afforded an opportunity of dealing with it. Referring to the quantum of punishment imposed on the applicant i.e. compulsory retirement, the counsel for respondents would draw our attention to the judgment in the case of UOI Vs M.E. Reddy [AIR 1980 SC 563], Honble Supreme Court has laid down that the object and purpose of premature compulsory retirement of the Government servant is to weed out the inefficient corrupt deadwood or dishonest employees from the Government service it is well established right of the Government, which exercises in accordance with the rules provided for the purpose. The scope and application of rules with regard to the exercise of the right of the Government is absolute but subject to the provisions of the Constitution. He submits that the penalty of compulsory retirement is proportionate to the gravity of the proved misconduct. It is contended that principles of natural justice has been followed and the report of UPSC has been supplied to the applicant along with the penalty order passed by the Disciplinary Authority. Shri Gupta, therefore, urged to dismiss the OA.
5. Having heard the contentions of the parties, with the assistance of the counsel, we perused the pleadings. The main legal issue raised by the counsel for the applicant is that non-supply of the UPSC advice/report to the applicant to defend himself prior to the passing of the penalty order has violated the principles of natural justice and the said infirmity is incurable for which the penalty order is liable to be set aside. It is necessary to address this issue first before we examine other grounds advanced by the applicant.
6. The principal legal infirmity we notice relates to the non-supply of UPSC advice to the applicant in advance to defend himself. We may at this stage refer to the impugned penalty order dated 22.02.2010 available at Annexure-A1. Page 2 of the order, the UPSC letter dated 18.03.2009 has been referred to note 3 elements of the charge identified by the UPSC. The punishment order goes on to narrate the observation of UPSC highlighting the evidence (five in numbers) emerged from the inquiry on three elements of the charge is finally agreed to with the UPSC advice to impose penalty of compulsory retirement and the ultimate four paragraphs of the said order read as follows:-
AND WHEREAS in view of the evidence on record-oral, circumstantial and documentary, the Commission concluded that Article of Charge leveled against the CO stands proved;
AND WHEREAS in the light of their findings as discussed in their letter No.F.3/297/2008-SI dated 18.3.2009 and after taking into account all other aspects relevant to the case, the Commission have advised that the ends of justice would be met in this case if the penalty of compulsory retirement is imposed of Shri V. Chandu, DSP, CBI;
AND WHEREAS the advice of the union PublIC Service Commission along with all other aspects relevant to the case has carefully been considered by the President and it has been decided to accept the advice of the Commission;
NOW THEREFORE, the President is of the view that a penalty of compulsory retirement is imposed on Shri Chandu Venkateshwarlu (V. Chandu), DSP, CBI. It is ordered accordingly. The above order undoubtedly been guided by the UPSC advice.
7. It is well settled principles of natural justice that if any material is to be relied upon in a disciplinary case, a copy of the same must be given in advance to the delinquent officer in order to provide him an opportunity to rebut. In the present case, the Disciplinary Authority has relied heavily on the report of UPSC but a copy of the said report was not made available to the applicant in advance. Hence, such an omission is violation of the principles of natural justice and the penalty order is liable to be quashed. We draw our strength from the latest judgment of Honble Supreme Court in the case of Union of India & Others versus S. K. Kapoor [2011 STPL (Web) 277 SC] wherein the following law was laid:-
10. In the aforesaid decision, it has been observed in para 25 that the provisions of Article 320 (3) (c) of the Constitution of India are not mandatory. We are of the opinion that although Article 320 (3) (c) is not mandatory, if the authorities do consult the Union Public Service Commission and reply on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T. V. Patels case is clearly distinguishable.
11. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employees, otherwise, there will be violation of the principles of natural justice.
12. This is also the view taken by this Court in the case of S. N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
13. It may be noted that the decision in S. N. Narulas case (supra) was prior to the decision in T. V. Patels case (supra). It is well settled that if a subsequent co-ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of the co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S. N. Narulas case (supra) was not noticed in T. V. Patels case (supra), the latter decision is a judgment per incuriam. The decision in S. N. Narulas case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
8. Considering the totality of facts and circumstances of the case and guided by the well settled position in law, we come to the considered conclusion that by non-supply of UPSC advice/report to the applicant the principles of natural justice have been violated. In the result, for the foregoing reasons, the impugned penalty order dated 22.02.2010 is quashed and set aside. Keeping all other grounds open the matter is remanded back to Disciplinary Authority to continue the disciplinary proceeding from the stage where the illegality has crept in i.e. the receipt of UPSC advice/report dated 18.03.2009 by the Disciplinary Authority and take forward the case to its ultimate conclusion. It is directed that the applicants representation shall be sought and on receipt the entire case shall be reconsidered without being biased by the earlier decision and taking into account the proportionality angle. Resultantly, we direct the respondents to allow the applicant to be reinstated into service. As the penalty order is being set aside on the grounds of legal and technical infirmity, the respondents are at liberty to place the applicant under suspension if deemed fit and as admissible as per law. The ultimate decision of the competent Disciplinary Authority would cover the entire period from the date of compulsory retirement up to the date of passing the final order in the case.
9. In terms of our above orders and directions, the Original Application is allowed. There shall be no order as to cost.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/