Central Administrative Tribunal - Delhi
S K Verma vs M/O Finance on 25 April, 2016
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OA-2032/2013
Central Administrative Tribunal
Principal Bench
OA No.2032/2013
New Delhi, this the 25th day of April, 2016
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. Sudhir Kumar, Member (A)
S. K. Verma S/o M. P. Verma,
Working as Assistant Registrar,
Customs, Excise & Service Tax Appellate Tribunal,
West Block No.2, R.K.Puram,
New Delhi-110066
Presently residing at
B-372, Swarn Jayanti Puram,
Ghaziabad-201002. ... Applicant
( By Advocate: Shri Harpreet Singh )
Versus
1. Union of India through
Secretary, Ministry of Finance,
Department of Revenue,
North Block, New Delhi-110001.
2. Registrar,
Customs, Excise & Service Tax Appellate Tribunal,
West Block No.2, R.K.Puram,
New Delhi-110066.
3. Shri Bineesh Kumar K. S.,
Deputy Registrar,
Customs, Excise & Service Tax Appellate Tribunal,
South Zonal Bench, 1st Floor W.T.C. Building,
FKCCI Complex, K.G.Road,
Bangalore-560009. ... Respondents
( By Advocate : Shri Hanu Bhaskar )
ORDER
Justice Permod Kohli, Chairman :
Present OA has been preferred by the applicant seeking the following reliefs:
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OA-2032/2013 "a. Issue a writ of certiorari or any other appropriate writ/order or direction, quashing the Charge-sheet marked at Annexure-A18 bearing no.F.no.26/1/07- Ad-1C(CESAT) dated 07/02/2013; and b. Issue a writ or certiorari or any other appropriate writ/order or direction, quashing the appointment of Inquiry Officer and Presenting Officer bearing no. F.no.26/1/07-AD-1C(CESAT) (i) dated 13/03/2013 and F.No.26/1/07-Ad-1C(CESAT)(ii) marked as Annexure-A2 collectively; and c. Issue a writ of certiorari or any other appropriate writ/order or direction, the rejection letter bearing F.No. 26/1/07-AD-1C(CESAT) dated 23.05.2013; marked as Annexure-A25; and d. Issue a writ of certiorari or any other appropriate writ/order or direction, quashing notice bearing no. F.No.26(01)/DISCP/INQ/SKV dated 31.05.2013; marked as Annexure-A27; and e. Grant the costs of these proceedings as this Hon'ble Tribunal deems fit to pass in the facts and circumstances of the case to meet the ends of justice."
2. From the perusal of the aforesaid reliefs, it appears that the applicant is aggrieved of the charge-sheet issued to him vide memorandum dated 07.02.2013 (Annexure A-18) for holding an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965; order dated 13.03.2013 (Annexure A-20) whereby Shri B. S. V. Murthy, Member (Technical), Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Bangalore, has been appointed as the Inquiring Authority to inquire into the charges; another order dated 13.03.2013 (Annexure A-20 colly.) appointing respondent No.3 as the Presenting Officer; communication dated 23.05.2013 (Annexure A-25) whereby his representation for change of the Presenting Officer has been declined; and Notice dated 31.05.2013 (Annexure A-27) whereby he has 3 OA-2032/2013 been asked by the Inquiring Authority to participate in the inquiry being conducted against him.
3. Challenge to the disciplinary proceedings is three-fold - (i) permission from CVC is mandatory at every stage of the disciplinary proceedings in regard to Group 'A' officers; (ii) denial of personal hearing by the inquiring authority and non-supply of relevant record; and (iii) refusal to change the presenting officer who will be called as witness by the applicant.
4. The averments and allegations made in the OA and argued during the course of hearing have been refuted by the respondents in the counter affidavit filed, as also during the course of hearing.
5. It is settled legal position that this Tribunal, or for that matter, any court, exercising the power of judicial review, does not sit as a court of appeal over the conduct of disciplinary proceedings, or even the final order of punishment awarded. Interference in the conduct of disciplinary proceedings and the consequential order that may be passed by the disciplinary authority, is permissible only (i) where the disciplinary proceedings are initiated by an incompetent authority; (ii) such proceedings are in violation of any statutory rule or law; (iii) there has been gross violation of principles of natural justice; and (iv) on account of proven bias and mala fides. Reference in this connection may be made to the judgment of the Hon'ble Supreme Court in B. C. Chaturvedi v Union of 4 OA-2032/2013 India & others [(1995) 6 SCC 749], wherein their Lordships in para 12 held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
6. Insofar as the first ground is concerned, the learned counsel has not been able to point out any rule, regulation or even laid down norms which may require permission of the CVC at every stage of the disciplinary proceedings. As regards violation of principles of natural 5 OA-2032/2013 justice, it is urged on behalf of the applicant that he has not been provided opportunity to inspect the entire relevant record, nor provided copies of the record asked for. In this regard, it is relevant to refer to averments made by the applicant himself in paras 4.17, 4.19 and 4.21, wherein it is specifically averred that the applicant initially filed an interim reply dated 16.08.2012 (Annexure A-16), second interim reply dated 04.10.2012 (Annexure A-17) and interim defence reply dated 15.02.2013 (Annexure A-
19). He has also admitted in para 4.21 that he was permitted inspection of the files, which he inspected along with the documents in the presence of officials of CESTAT, New Delhi. He has further acknowledged that his request for providing copies of certain documents was also accepted and certain documents were provided on 22.10.2012. The applicant has made vague assertions regarding non-supply of unspecified documents and denial of inspection of certain record.
7. In the counter affidavit, it is specifically stated that as per the request of the applicant, he was allowed inspection of the files and also provided copies of the documents sought by him.
8. In the light of the above admitted facts, the contention of the applicant that there has been violation of principles of natural justice is totally unfounded. As a matter of fact, the applicant has been adopting all possible means to avoid holding of the disciplinary inquiry against him by taking refuge to one pretext or the other. It is on account of the conduct of the applicant that the charge-sheet which was issued on 07.02.2013 and for which the inquiring authority and the presenting officer were appointed 6 OA-2032/2013 on 13.03.2013, could only be proceeded with in May, 2013 when the inquiring authority issued notice to the applicant for appearance on 17.06.2013.
9. Earlier the applicant initiated various legal proceedings by filing different OAs in respect of separate proceedings initiated against him. He was placed under suspension on 09.05.2007 on the basis of a complaint made by a contractor Mohd. Zafar, alleging demand of bribe by the applicant. A charge-sheet was served upon him. He filed three OAs before the Bengalore Bench of the Tribunal. He was again suspended on 22.08.2008 for unauthorized absence from duty, and he filed another OA before the Bangalore Bench challenging the disciplinary proceedings against him. He filed yet another OA before the Bangalore Bench seeking promotion to the post of Deputy Registrar. Though the applicant has made detailed references to these legal proceedings, including the writ petitions filed in the High Court of Karnataka, and some contempt petitions, however, for purposes of the present OA these proceedings are not relevant, thus not being referred to in extenso or dealt with. Insofar as the present Application is concerned, a complaint was lodged against the applicant by one R. K. Jain, Editor, Excise Law Times on 30.08.2011 alleging fraudulent withdrawal of HRA by the applicant while occupying government accommodation, and some other allegations. On examination of the matter, the respondents served a memorandum dated 27.06.2012 on the applicant, followed by charge-sheet dated 07.02.2013, and thereupon initiated disciplinary proceedings, which have been questioned in the 7 OA-2032/2013 present OA. It is stated on behalf of the applicant that he has already paid back 85% of the amount received by him on account of withdrawal of HRA. This is a clear admission on the part of the applicant that he has drawn HRA while occupying government accommodation. However, the matter needs to be inquired into in disciplinary proceedings initiated against the applicant by the inquiring authority and appropriate decision is to be taken by the disciplinary authority. It is not appropriate to delve into this issue.
10. In the present OA, vide order dated 14.06.2013 while issuing notice, an interim order came to be passed prohibiting the respondents from acting on the inquiry, if completed. The interim order is continuing since then.
11. The last ground as projected by the applicant regarding change of the presenting officer (respondent No.3) seems to be only a ploy. It is not the case of the applicant that respondent No.3 has been cited as a witness in the inquiry against him, and thus it disqualifies him to be the presenting officer. In para 3 of the grounds it is stated that respondent No.3 will be called as a witness by the applicant, and thus he should not act as the presenting officer. Firstly, the applicant was yet to participate in the inquiry, and he has not disclosed any fact or reason as to why respondent No.3 would be a witness for him. The averment is totally vague and without any factual basis. Secondly, no law prohibits or prevents the applicant from calling, even a party to the proceedings against him, as a witness, if he so chooses. Merely because the applicant 8 OA-2032/2013 feels that he may call him as a witness, does not disqualify the respondent No.3 to be the presenting officer in the disciplinary proceedings initiated against the applicant. The authorities have rightly rejected his representation.
12. It is lastly argued by the learned counsel that the applicant as Assistant Registrar was a Group 'B' officer and his disciplinary authority is not the President of India, hence the memorandum of charge-sheet dated 07.02.2013 issued on behalf of the President of India is invalid. According to the learned counsel, the President is the disciplinary authority only in respect of Group 'A' officers and not Group 'B' officers. This contention is also devoid of any force. The applicant in para 4.5 of the OA has himself mentioned as under:
"5. Thereafter, the post of Assistant Registrar was upgraded to Group "A" class in the Central Civil Services in the scale of Rs.8,000/- to Rs.13,500/- with effect from 21-12-2004."
Apart from above admission, from the perusal of notification dated 09.04.2009 issued vide S.O. 946(E) issued in exercise of powers under proviso to Article 309 and other enabling provisions, the Central Civil posts carrying Grade Pay of Rs.5400/- in the scale of pay of Rs.15600-39100 in Pay Band-3, and above, fall under Group 'A'. The respondents have also placed on record copy of a communication dated 25.11.2009 (Annexure R-10) whereby the Registrar, CESTAT, New Delhi was informed that the post of Assistant Registrar, CESTAT has been placed in Pay Band-3, and in terms of S.O.946(E) dated 09.04.2009 published in the 9 OA-2032/2013 Gazette of India is classified as a Group 'A' post. This position has not been disputed or rebutted by the applicant.
13. For the above reasons, this Application is liable to be dismissed. We order accordingly. Interim order shall stand vacated. No order as to costs.
( Sudhir Kumar ) ( Permod Kohli ) Member (A) Chairman /as/