Central Administrative Tribunal - Delhi
Chhedi Lal vs M/O Finance on 10 June, 2022
1
Item No. 12 OA No. 1675/2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1675/2015
Reserved on: 17.05.2022
Pronounced on: 10.06.2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Chhedi Lal,
Commissioner of Income Tax, DR-III
Settlement Commission
Lok Nayak Bhawan
4th Floor, Khan Market
New Delhi.
....Applicant
(By Advocate: Mr. A.K. Behera, Senior Advocate assisted by
Mr. Amrendra Pratap Singh)
Versus
1. Union of India
Through its Secretary,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi.
2. Chairman,
Central Board of Direct Taxes,
Ministry of Finance,
North Block, New Delhi.
...Respondents
(By Advocates: Mr. Rajesh Katyal)
2
Item No. 12 OA No. 1675/2015
ORDER
Hon'ble Mr. Mohd Jamshed, Member (A) The applicant is a 1982 batch Indian Revenue Service Officer. He was posted as Deputy Commissioner Special Range-I at Rajkot during the year 1996-97. It is stated that during this time large number of search actions were carried out by the Income Tax Department, which resulted in widespread resentment in business community. Certain actions were taken by the senior officers of IT Department to streamline the procedure so as to eliminate any element of illegality in obtaining forcible confessions etc. The applicant submits that decisions were taken by the Senior Officers to ignore confessional statements that were obtained under duress and to take reasonable view on the merits of each case at the time of approving block assessments. It is submitted that during this period, one Shri Vijay Khanna, CIT took proactive measures in ensuring that the work is done in accordance with laws and rules. He also accorded approval for about 50 block assessments under Section 158BG of the IT Act and thus all search assessments were completed on the broad commitment made by the Department and wherever the disclosures were not based on evidence, suitable instructions were issued to the Assessing Officers as per the merits of each case. During this 3 Item No. 12 OA No. 1675/2015 period, the applicant was working under Shri Vijay Khanna, CIT and was also responsible for passing certain orders under Section 158BG for block assessments. It is further stated that these corrective actions taken by the Senior IT Officers also resulted in transfers of officers allegedly involved in irregularities and resulted in complaints from public including anonymous/pseudonymous complaints. Two such anonymous/pseudonymous complaints dated 18.02.1997 and 02.04.1997 were also made against CIT, Shri Vijay Khanna and his subordinate officers in the name of one Shri M.P. Sharda. During further investigations made in 1998 by Additional CIT (Vigilance), the persons whose name appeared in the complaints categorically denied to have made the aforesaid complaints. Although in terms of letter dated 31.01.2002 containing CVC instructions, no action was supposed to be taken on anonymous/pseudonymous complaints, the CIT Shri Vijay Khanna was issued a Charge Memorandum dated 20.10.2004 on seven articles of charge. Article-V of the Charge Memorandum issued to Shri Vijay Khanna was apparently based on the said anonymous/pseudonymous complaints. The said Shri Vijay Khanna filed O.A. No. 2698/2004 and this Tribunal vide order dated 20.07.2005 quashed the Charge Memorandum. A WP(C) No. 507/2007 was filed before the Hon'ble High Court challenging the order of the Tribunal and 4 Item No. 12 OA No. 1675/2015 the Hon'ble High Court vide judgment dated 22.01.2007 upheld the order of the Tribunal. Accordingly, the Charge Memorandum against CIT Vijay Khanna was dropped. Applicant contends that his case is similar to that of CIT Vijay Khanna.
2. The applicant has made these averments in the O.A. primarily to indicate that these developments provide background for the subsequent actions. The Charge Memorandum issued to CIT Vijay Khanna was for the period, when the applicant was working under him as Deputy Commissioner. Subsequently, the applicant was issued a Charge Memorandum dated 20.06.2014 which is stated to be also based on the same anonymous/ pseudonymous complaints, that was the basis for issuing Charge Memorandum to Shri Vijay Khanna, which was subsequently quashed and set aside. The applicant has challenged the Charge Memorandum dated 20.06.2014 by filing this O.A. He is seeking quashing and setting aside of this Charge Memorandum on the ground that he was acting as a quasi- judicial authority and, therefore, the orders passed by him cannot be construed as a misconduct. It is also submitted that the disciplinary action was initiated on the basis of complaints which were verified to be anonymous/pseudonymous and, therefore, these proceedings are in clear violation of CVC 5 Item No. 12 OA No. 1675/2015 guidelines which prohibit all Government Departments not to take any action on such complaints. It is also indicated that the applicant, as a measure of abundant caution, has previously filed O.A. No. 1137/2009. In the present O.A., the applicant has sought the following relief(s):
"a. Quash and set aside the Memorandum dated 20.06.2014 issued to the applicant under covering letter dated 04.07.2014 with all consequential benefits.
b. Pass such other or further order(s) as this Hon'ble Tribunal may be deemed fit and proper in the facts and circumstances of the present case.
c. Direct the respondents to pay the cost of litigation".
3. The respondents have filed a counter affidavit opposing the O.A. It is submitted that on the basis of a secret note appended in the ACR of the applicant for Assessment Year 1997-98 indicating certain irregularities, a letter was written to CCIT, Ahmedabad on 13.10.1998 for conducting an inquiry and submitting a report. A Report was submitted by the CIT, Rajkot on 15.04.1998 on the basis of the complaints dated 18.02.1997 and 02.04.1997 pointing out irregularities and recommending further inquiries from vigilance angle. The vigilance action was approved by the CCIT in the case of the applicant and further approval was sought vide letter dated 05.02.1999. This was approved subsequently and matter was referred to the CVC for 6 Item No. 12 OA No. 1675/2015 initiation of major penalty proceedings against the applicant. A Charge Memorandum dated 27.09.2002 was issued to him. Challenging this, the applicant approached the Tribunal, which quashed the Charge Memorandum vide order dated 19.03.2010 in O.A. No. 1137/2009 on the ground that the Charge Memorandum was not approved by the Disciplinary Authority, i.e. the Finance Minister. However, liberty was granted to the Department to take up the matter once again and in view of the liberty granted, Charge Memorandum dated 20.06.2014 was issued to the applicant, after following the due procedure. It is further submitted that the Charge Memorandum contains very specific charges and details of irregularities and misconduct, as pointed out in the Vigilance Report and the proposed action was duly approved by the CVC. Since the disciplinary proceedings are on, the claim of the applicant to set aside or quash the Charge Memorandum dated 20.06.2014 cannot be accepted. It is also submitted that in terms of CVC directions, no action was to be taken on anonymous/pseudonymous complaints after 1999 and these complaints and vigilance investigations have taken place prior to that and, therefore, the initiation of disciplinary proceedings is as per the extant rules.
4. In the rejoinder filed, the applicant has reiterated the averments made in the O.A. and referred to the case of one Shri Vijay Khanna, who was CIT and in whose case the Charge 7 Item No. 12 OA No. 1675/2015 Memorandum was dropped, as the case was based on anonymous/pseudonymous complaints, vide order dated 20.07.2005 passed by this Tribunal in O.A. No. 2698/2004.
5. Heard Mr. A.K. Behera, Senior Counsel assisted by Mr. Amrendra Pratap Singh, learned counsel for the applicant and Mr. Rajesh Katyal, learned counsel for the respondents; and also perused the pleadings and judgments on record.
6. Learned counsel for the applicant almost entirely relied upon the judgment passed by this Tribunal in the case of Shri Vijay Khanna in O.A. No. 2698/2004. The Tribunal vide order dated 20.07.2005 held that, while relying upon the judgment of Hon'ble High Court of Madras in Writ Petition No. 11543 of 2000 and another, dated 26.09.2003, in the case of P.M. Ramalingam vs. The DG CRPF, that no action could have been taken on complaints which were received prior to 29.06.1999, as the CVC Circular dated 29.06.1999 clearly mentions that no action should be taken on anonymous/pseudonymous complaints and they shall be filed. The O.A. was allowed only on the basis of this relied upon judgment of the Hon'ble High Court of Madras and it is stated that "Since the charge sheet was issued on the basis of pseudonymous complaints, charge sheet is quashed and set aside. The OA is accordingly allowed. No order as to costs". 8 Item No. 12 OA No. 1675/2015 Learned counsel for the applicant has taken the plea that not only the Tribunal set aside the charge memorandum, but this decision was challenged in the Hon'ble High Court of Delhi and the Hon'ble High Court in WP(C) No. 507/2007 vide its order dated 22.01.2007, upheld the said order passed by this Tribunal.
7. It would, therefore, be necessary to once again look at the facts of the case. In the counter affidavit filed by the respondents, it is specifically mentioned that on the basis of a secret note appended in the ACR of the applicant for the Assessment Year 1997-98 regarding certain irregularities in IT cases, a letter dated 13.10.1998 was sent to CCIT, Ahmedabad for conducting an inquiry. A Report was submitted by the CIT, Rajkot on 15.04.1998, which also took into account the complaints dated 18.02.1997 and 02.04.1997. It was decided that the matter should be further inquired into from vigilance angle for various irregularities that have come to the notice during the preliminary inquiry. A Vigilance Inspection was also approved by the Competent Authority, i.e. Member (P&V), CBDT on 23.02.1999. A Vigilance Report was submitted on 16.05.2000 and as a result of which, approval of Chairman, CBDT was sought for Vigilance Inspection in various other cases for lapses and irregularities and to obtain 9 Item No. 12 OA No. 1675/2015 the version of the applicant. The applicant submitted his version on 29.12.2000. These were examined by the Competent Authority and the matter was referred to CVC for seeking first stage advice on 14.02.2001. The CVC, vide letter dated 03.10.2001, advised initiation of major penalty proceedings against the applicant and a Charge Memorandum dated 27.09.2002 was issued. The applicant had filed an O.A. No. 1137/2009. The Tribunal vide its order dated 19.03.2010 held that since the Disciplinary Authority had not approved the charges, the same stands quashed. However, liberty was granted to the respondents to take up the matter once again. It was also made clear that a fresh charge sheet, if issued is not liable to be challenged on the basis that there is delay in issuing the charge sheet. In this O.A., the ground of anonymous/pseudonymous complaint had not been taken and the same has not been discussed anywhere in the order. Subsequently, Charge Memorandum dated 20.06.2014 was issued to the applicant. This Charge Memorandum dated 20.06.2014 mentions multiple rounds of litigation and the orders passed by this Tribunal in earlier OAs, including O.A. No. 1137/2009, in which the Charge Memorandum dated 27.09.2002 was challenged. The Charge Memorandum contains the following articles of charge:
10Item No. 12 OA No. 1675/2015
"STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI CHHEDI LAL, COMMISSIONER OF INCOME-TAX Article-I That Shri Chhedi Lal, while working as Dy. CIT, Special Range-1, Rajkot, during the period 1996-97, passed the block assessment orders of M/s. Aditya Cargo Transport and ACT Shipping Ltd., in a hurried manner without conducting any worthwhile investigation. He failed to verify the assessees' claims regarding unaccounted receipts and expenditure from available seized records. While framing the block assessment orders, Shri Chhedi Lal did not take into account vital incriminating documents indicating huge unaccounted receipts and expenditure which were admitted in the search proceedings.
Shri Chhedi Lal thus failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a government servant. He thereby violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article-II That Shri Chhedi Lal, while working as Dy. CIT, Special Range-1, Rajkot, during the period 1996-97, in the block assessment proceedings of M/s. Aditya Cargo Transport and M/s. ACT Shipping Ltd., failed to verify the seized records and consequently unaccounted expenditure of crores of rupees, clearly indicated in the seized records, escaped taxation.
Thus, Shri Chhedi Lal exhibited gross negligence and failed to maintain devotion to duty and exhibited conduct unbecoming of a government servant. He thereby violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article- III That Shri Chhedi Lal, while working as Dy. CIT, Special Range-1, Rajkot, during the period 1996-97, in the block assessment orders of M/s. Aditya Cargo Transport and M/s. ACT Shipping Ltd., failed to add back all the bogus expenses debited in the books of account, or to include admitted huge receipts outside the books in the gross receipts of the assessees, for computing the taxable income. That Shri Chhedi Lal, without any rationale, applied uniform profit rate of 15% on the estimated unaccounted expenditure, whereas the reasonable rate of profit should have been at least 32%.
Thereby Shri Chhedi Lal failed to maintain absolute 11 Item No. 12 OA No. 1675/2015 integrity, devotion to duty and exhibited conduct unbecoming of a government servant in violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
Article-IV Shri Chhedi Lal, while working as Dy. CIT, Special Range- 1, Rajkot, during the period 1996-97 in passing the block assessment orders of M/s. Aditya Cargo Transport and M/s. ACT Shipping Ltd., willfully did not cause any enquiry into the information given by the ADIT in Annexure-B of the appraisal report, relating to the concealed assets/investments/consumption expenses of the Aditya Group. He also willfully ignored the information given in the appraisal report on the distribution of the accounted and unaccounted assets of Cargo Clearing Agency (Guj.), as on 12-08-1982. Finally, Shri Lal by not compiling vital information on the identity of the counter party payers and payees respectively of unaccounted receipts and expenditure: deprived the department of huge amount of legitimate taxes.
Shri Chhedi Lal, thus, exhibited gross and willful negligence in discharging his official duties and exhibited conduct unbecoming of a government servant. He thereby violated the provisions of Rule 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article- V That Shri Chhedi Lal, while working as Dy. CIT, Special Range-1, Rajkot, during the period 1996-97, in his orders of block assessments in the cases of M/s. Aditya Cargo Transport and M/s. ACT Shipping Ltd, accepted the assessees' claims retracting from their earlier statements given during the course of the search, without making any detailed enquiry/examination of either the seized material and gave credence to the affidavits of retraction without any legal basis or factual verification. In so doing, Shri Chhedi Lal willfully and with malafide intent caused a loss of revenue by way of taxes alone of Rs.1.31 crores.
Thereby Shri Chhedi Lal failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a government servant. He, thus, violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article-VI That Shri Chhedi Lal, while working as Dy. CIT, Special Range-1, Rajkot, during the period 1996-97, withheld certain vital information from the CIT while submitting the report on the application made by M/s. Aditya Cargo Transport before the Settlement Commission, in as much as he did not refer to the two affidavits of Shri T.V.12 Item No. 12 OA No. 1675/2015
Sujan in his report to the CIT. The report of Shri Chhedi Lal to the CIT with regard to admission of the case before the Settlement Commission is dated 09-08-1996. The affidavits of Shri T.V. Sujan are dated 08-12-1995 and 28-12-1995. In terms of these two affidavits, Shri Sujan had substantially retracted from the earlier statement of disclosure of Rs.3 crores given in the course of search. Withholding these vital pieces of information submitted through affidavits by Shri Sjan, Shri Cheddi Lal purposefully gave an incomplete and inaccurate report, so that the Settlement Commission would not find any complexity in the said case and consequently would not admit the same. This was designed to ensure that Shri Chhedi Lal continued to retain jurisdiction over the case and could pass on undue benefit to the assessees.
Thus Shri Chhedi Lal failed to maintain absolute integrity and devotion to duty and Exhibited conduct unbecoming of a government servant. He, thereby violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Article-VII That Shri Chhedi Lal, while working as Dy. CIT, SP-1, Rajkot, during the periods 1995-96 and 1996-97, passed the regular assessment orders u/s.143(3) in the case of M/s. Aditya Cargo Transport for A.Ys. 1994-95 and 1995- 96 in a patently irregular manner, in as much as he wrongly allowed unsubstantiated and bogus expenses of crores of rupees to the above Company, even though Shri Chhedi Lal had information in his possession about the nature and quantum of bogus expenses in the said two cases.
Shri Chhedi Lal, thus, failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of a government servant. He thereby violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964."
Statement of imputation of misconduct provides details of alleged irregularities with list of relied upon documents. All the charges have specific details and relied upon documents have also been provided, on the basis of which theses charges are proposed to be sustained. These documents are all records and statements.
13Item No. 12 OA No. 1675/2015
8. The applicant is challenging this Charge Memorandum not for the allegations levelled therein, but on the grounds that the basis of these charges is perhaps two anonymous/pseudonymous complaints and no cognizance of the same should be taken, in view of the CVC guidelines. Learned counsel for the applicant has also vehemently argued the same point. On the one hand, this aspect is being vehemently argued and on the other, the charges are not being denied on merits in the O.A. The technical point that has been argued again and again is about the basis of this Charge Memorandum being anonymous/pseudonymous complaints. The so called anonymous/pseudonymous complaints have neither been enclosed by the applicant nor by the respondents, except for a mention of such anonymous/pseudonymous complaints dated 18.02.1997 and 02.04.1997. This Tribunal does not have the benefit of seeing what was mentioned in these complaints. It is also a fact that irregularities committed or acts of misconduct cannot be altogether ignored, simply because these have been brought to the notice of the concerned authority through an anonymous/pseudonymous complaint. There have been number of guidelines issued by the CVC on this aspect. Based on the earlier CVC guidelines, the DoPT OM dated 29.09.1992 prescribes that although no action is required to be taken on 14 Item No. 12 OA No. 1675/2015 anonymous/pseudonymous complaints, provided they may enquire into such complaints which contain verifiable details. This practice has remained in force till the issuance of CVC Circular No. 3(v)/99/2 dated 29.06.1999, which prescribes that no action should be taken on anonymous/pseudonymous complaints and these should be just filed. This was reiterated vide Commission's Circular dated 31.01.2002. The entire premise of the applicant is based on the fact that the Charge Memorandum contains allegations which are based on anonymous/pseudonymous complaints and, therefore, the Charge Memorandum itself is not tenable and the same should be quashed. A reference has been made to the case of CIT Vijay Khanna wherein the Charge Memorandum was quashed and set aside by the Tribunal in O.A. No. 2698/2004 vide order dated 20.07.2005 and upheld by the Hon'ble High Court of Delhi.
9. This, therefore, brings us to the issue of understanding of CVC Circular dated 29.06.1999 and whether any circular that is issued, can be implemented with retrospective effect. It is evidently clear that unless the retrospective date has been mentioned, any circular will be effective only from the date it is issued on. Therefore, action taken on anonymous/pseudonymous complaints containing verifiable details in 1997-98, which also resulted in vigilance inquiry 15 Item No. 12 OA No. 1675/2015 and detection of many irregularities against the official, cannot be governed by Circular dated 29.06.1999. The Hon'ble High Court of Madras has passed the orders apparently on the basis of the date of this Circular in 1999 and also an interpretation of action taken on such complaints. In fact, the order of this Tribunal in O.A. No. 2698/2004 in the case of Vijay Khanna, which relied upon the judgment of the Hon'ble High Court of Madras was taken note of by the CVC itself and the CVC has issued a detailed Circular No. 03/03/16 dated 07.03.2016 as a result of the order passed by this Tribunal in O.A. No. 2698/2004 in Vijay Khanna vs. Union of India & Ors. This Clarificatory Circular is quoted below:
"Sub- Action on Anonymous/ Pseudonymous Complaints - reg.
The Commission has been receiving references from Departments / Organisations seeking clarification on the action to be taken on anonymous/pseudonymous complaints which were acted upon and at different stages of process including under disciplinary proceedings before issuance of CVC Circular No. 07/11/2014 dated 25th November, 2014 on the captioned subject. A few Court decisions arising out of the Commission's guidelines issued earlier on the subject were also brought to the notice of the Commission.
2. The Commission considered the details of the Court orders/judgments and in one instance, the Central Administrative Tribunal (CAT), Principal Bench, Delhi had quashed the charge sheet dated 14.10.2004 issued to the delinquent official based on the pseudonymous complaints dated 18.02.1997 and 02.04.1997, vide order dated 20.07.2005. CAT had quashed the charge-sheet served mainly considering the circulars of the Commission dated 29.6.1999 and 31.01.2002 on the subject. In the order dated 20.07.2005, it was observed that the charge sheet dated 14.10.2004 was issued pursuant to pseudonymous complaints received earlier and therefore is in violation of Commission's circular dated 29.6.1999 and 31.01.2002. The High Court agreed with the findings and observations of the CAT and dismissed the department's Writ Petition filed against the order of the CAT in 16 Item No. 12 OA No. 1675/2015 limine. Thereafter, the Supreme Court had also dismissed the department's Civil Appeal in the matter. CATs decision is based on one of the judgement dated 26.09.2003 of Madras High Court (in another case) wherein it was observed that the preliminary enquiry report dated 25.05.2000 based on anonymous complaint was subsequent to the CVC's circular dated 29.06.1999 and, therefore, is liable to be quashed and further that the prohibition (in CVC circular) that "no action will cover all pending proceedings on that date."
3. The instrucions / guidelines issued from time to time on the subject-matter by DOPT / CVC are as follows:
i. DoPT's O.M. No. 321/4/910-AVD.IIl dated 29.09.1992 that no action is required to be taken on anonymous/pseudonymous complaints in general, provided the option to inquire into such complaints which contained verifiable details.
ii. Commission's initial Circular No. 3(v)/99/2 dated 29.6.1999 prescribing that no action should be taken on anonymous/pseudonymous complaints and should just be filed.
iii. Commission's circular No.98/DSP/9 dated 31.1.2002 reiterating that under no circumstances, should any investigation be commenced on anonymous/ pseudonymous complaints.
iv. Commission's circular No. 98/DSP/9 dated 11.10.2002 reviewing its earlier instructions of 1999, providing that if any Departments/ organisations proposes to look into the verifiable facts alleged in anonymous/pseudonymous complaints it may refer the matter to the Commission seeking its concurrence through the CVO or the Head of the organisation.
v. DOPT O.M. No. 104/76/2011-AVD.I dated 18.10.2013 that no action is required to be taken on anonymous complaints, irrespective of the nature of allegations and such complaints need to be simply filed.
vi. Commission's circular No.07/11/2014 dated 25.11.2014 withdrawing Circular dated 11.10.2002 and reiterating previous circulars dated 29.6.1999 and 31.1.2002 to the effect that no action should be taken on anonymous/ pseudonymous complaints and such complaints should be filed.
4. Since, the aforesaid issues arising out of the observations of CAT and High Court of Madras involve interpretation of substantial questions of law, the opinion of Ld. Attorney General for India was sought by the Commission. Ld. Attorney General for India has furnished his opinion and clarified that unless expressly stated all Executive Circulars are prospective in nature and they do not have retrospective effect. Only a law can be retrospective if a law expressly states that it will be retrospective or the intention to that effect is very clear. It is further clarified that an 17 Item No. 12 OA No. 1675/2015 anonymous / pseudonymous complaint, say made in 1997 i.e. prior to the prohibitory circular dated 29.06.1999 ought to have been generally not entertained but if there was verifiable material in accordance with the DoPT's O.M. of 1992 and investigation has commenced, the same would have to be taken to its logical conclusion notwithstanding the issue of a later circular dated 29.06.1999.
5. Based on the opinion furnished by Ld. AG, the following clarifications are being issued:-
i. No action should be taken on anonymous / pseudonymous complaints in line with Commission's present instructions dated 25th November, 2014 and such complaints should be filed.
ii. However where the action was initiated on anonymous/ pseudonymous Complaints prior to the issue of CVC's circular dated 29.6.1999 and was pending as on 29.6.1999, it can be pursued further to its logical end.
iii. Where action was initiated on anonymous/ pseudonymous complaints between the period 11.10.2002 and 25.11.2014 with prior concurrence of CVC but is pending, further action is permissible on such complaints.
iv. Material/evidence gathered during the investigation/ verification of anonymous complaints when the action was prohibited on such complaints (i.e. between 29.06.1999 & 11.10.2002), or where such enquiry was initiated without the approval of CVC, can be utilised for further initiation of disciplinary proceedings on misconducts noticed in such verification enquiry.
6. All Administrative Authorities/ CVOs may note the above clarifications for guidance / compliance while handling and processing matters arising out of anonymous / pseudonymous complaints."
Taking note of the decision of this Tribunal and on the recommendations of the learned AG, the CVC has issued clarification, which clearly prescribes that where the action was initiated on anonymous/pseudonymous Complaints prior to the issue of CVC's circular dated 29.06.1999 and was pending as on 29.06.1999, it can 18 Item No. 12 OA No. 1675/2015 be pursued further to its logical end. Not only that, it also clarifies that where action was initiated on anonymous/pseudonymous complaints between the period 11.10.2002 and 25.11.2014 with prior concurrence of CVC but is pending, further action is permissible on such complaints.
10. Obviously, this clarification was not available before this Tribunal while passing the order dated 20.07.2005. In view of this, the O.A. No. 2698/2004 can be clearly distinguishable from the facts of the present case. Through this clarification issued by the CVC, the disciplinary proceedings initiated against the applicant cannot be held to be bad in law in any way. As far as delay in issuance of Charge Memorandum under challenge is concerned, although the Charge Memorandum was initially issued in 2002, the delay was caused due to 1st round of litigation and the Tribunal vide its order dated 19.03.2010 passed in O.A. No. 1137/2009 had granted liberty to the Department by specifically mentioning that "a fresh charge sheet if issued is not liable to be challenged on the basis that there is delay in issuing the charge sheet". Thus the delay is on account of the O.A. filed earlier. The applicant has been issued the Charge Memorandum dated 20.06.2014. As far as the challenge to the Charge Memorandum is concerned, mere 19 Item No. 12 OA No. 1675/2015 issuance of a charge memorandum may not give rise to a cause of action, which has been clearly held in a number of judgments. This aspect has been well settled by the Hon'ble Supreme Court in Civil Appeal No.2333 of 2007 titled The Secretary, Ministry of Defence vs. Prabhas Chandra Mirdha, dated 29.05.2012, wherein it is held as under:
"11. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC
906).
12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also: Union of India & Ors. v. Upendra Singh, (1994) 3 SCC 357).
13. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to 20 Item No. 12 OA No. 1675/2015 deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
11. Another issue of the power of judicial review by Courts and Tribunals in disciplinary proceedings has also been dealt with in a number of judgments by the Hon'ble Apex Court. Few of these are summarized here:
(i) In Union of India vs. Parma Nanda in Civil Appeal No.1709 of 1988, decided on 14.03.1989, it has been held as under:
"26. So much is, we think, established law on the scope of jurisdiction and the amplitude of powers of the Tribunal. However, of late we have been receiving a large number of appeals from the orders of Tribunals-Central and States- complaining about the interference with the penalty awarded in the disciplinary proceedings. The Tribunals seem to take it within their discretion to interfere with the penalty on the ground that it is not commensurate with the delinquency of the official. The law already declared by this Court, which we reiterate discretion or power.
27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what 21 Item No. 12 OA No. 1675/2015 punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
(ii) In another judgment dated 14.02.2020 in the State of Karnataka and Anr. vs. N. Gangaraj in Civil Appeal No.8071 of 2014, the Hon'ble Apex Court considered the judgment of B.C. Chaturvedi vs. Union of India and Ors., (1995) 6 SCC 749, wherein it was held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It also quoted State of Bikaner and Jaipur vs. Nemi Chand Nalwaya, (2011) 4 SCC 584, wherein it is held that the Courts will not act as an Appellate Court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. Finally, it has relied upon the Hon'ble Apex Court judgment in Union of India vs. P. Gunasekaran, (2015) 2 SCC 610, the same is extracted below: 22 Item No. 12 OA No. 1675/2015
"13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
(iii) In a recent judgment dated 21.09.2021 in Civil Appeal No. 5848 of 2021 titled Union of India & Ors. vs. Dalbir Singh, the Hon'ble Apex Court having relied upon all the previous judgments, specifically considered the judgment in Union of India vs. P. Gunasekaran (supra), which laid down the broad parameters for the exercise of judicial review, quoted above.
12. In view of the clarification issued by the CVC dated 07.03.2016, the action on anonymous/pseudonymous complaints can be taken as mentioned above and, therefore, we do not find any illegality or infirmity in the impugned orders dated 20.06.2014 and 04.07.2014. On instructions, the learned counsel for the respondents has submitted that the Charge Memorandum was issued on 20.06.2014 and after an 23 Item No. 12 OA No. 1675/2015 inordinate delay on the part of the applicant, his statement of defence was received in 2016. Thereafter, the PO and IO have been appointed on 22.02.2017 and the inquiry is about to be completed.
13. In view of the above mentioned, we do not find the claim of the applicant tenable. The O.A. being devoid of merit, is accordingly dismissed.
There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das)
Member (A) Chairman
/jyoti/