Central Administrative Tribunal - Kolkata
Nand Kishor Rai vs Central Excise & Customs on 25 April, 2024
1 O.A. 350/00824/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/00824/2020 Date of order: 25/04/2024
Present : Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kr. Das, Administrative Member
Shri Nand Kishor Rai,
Son of Late Shiv Kumar Rai,
Aged about 54 years,
Ex-Superintendent of Customs (Preventive),
Customs House,
15/1, Strand Road,
Kolkata - 700 001,
Since been dismissed from service and
Residing at Flat No. 5E (Asha Towers),
34/1, Bondel Road,
Kolkata - 700 019.
...Applicant
-VERSUS-
1. UNION OF INDIA,
Service through the Secretary,
Government of India,
Ministry of Finance,
Department of Revenue,
North Block,
New Delhi - 110 001.
2. The Chairman of
Central Board of Indirect Taxes and Customs
(CBIC),
Department of Revenue,
North Block,
New Delhi - 110 001.
3. The Chief Commissioner of Customs,
Kolkata Customs Zone,
Kolkata,
2nd Floor,
Customs House,
2 O.A. 350/00824/2020
15/1, Strand Road,
Kolkata - 700 001.
4. The Principal Commissioner of Customs
(Airport & Administration),
2nd Floor,
Customs House,
15/1, Strand Road,
Kolkata - 700 001.
5. Commissioner of Customs
(Administration & Airport),
2nd Floor,
Customs House,
15/1, Strand Road,
Kolkata - 700 001.
6. Mr. Saurabh Kant Shukla,
Deputy Commissioner of Customs,
2nd Floor,
Customs House,
15/1, Strand Road,
Kolkata - 700 001,
Inquiry Officer.
7. Mr. Bijaya Chandra Dash,
SCP,
Customs House,
2nd Floor,
Customs House,
15/1, Strand Road,
Kolkata - 700 001,
Inquiry Officer.
..............Respondents
For the Applicant : Mr. A. Chakraborty, Counsel
Ms. P. Mondal, Counsel
Mr. Arpa Chakraborty, Counsel
Dr. S.K. Mahapatra, Counsel
For the Respondents : Mr. T. Bhanja, Counsel
Mr. K. Dey, Counsel
3 O.A. 350/00824/2020
O R D E R (Oral)
Mr. Jayesh V. Bhairavia, Judicial Member:
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"i) An order directing the respondents to cancel, rescind withdraw or set aside the purported Major Penalty Memorandum dated 23.09.2016 and 09.12.2016, Inquiry process being left incomplete as also purported order of deemed suspension being dated 23.03.2018 since being in contrary to the principles of natural justice;
ii) An order directing the respondents to cancel, rescind, withdraw or set aside the purported Memorandum being dated 10.04.2018, since issued without due provisions of law and without due application of mind;
iii) An order directing the respondents to cancel, rescind, withdraw or set aside the purported Disciplinary and Appellate orders respectively being Order-in- Original dated 01.06.2018 and Order-in-Appeal dated 05.12.2019 since issued in violation of the Rules of law and principles of natural justice as well.
iv) An order directing the respondents to hold the principles of switching over from Rule 14 to Rule 19 as unlawful, unconstitutional and in contradiction to the principles of natural justice as well;
v) An order directing the respondents to hold the so called deemed suspension to be bad in law since never been reviewed following 90 days of issue or ever after vis-à-vis orders/directions of Hon'ble High Court already issued as also admitted for hearing in course of time vis-à-vis the penalty order including order of payment of fine amount has already been stayed.
vi) An order directing the respondents to pay all consequential benefits including promotional benefits as per rule.
vii) An order directing the respondents to produce all relevant records with a copy to the Ld. Advocate of the applicant.
viii) Any other order/orders, further order/orders as to this Hon'ble Tribunal may seem fit and proper."
2. The facts of the case are as under:-
4 O.A. 350/00824/2020 2.1. The applicant was initially appointed as "Preventive Officer" under the Ministry of Finance on 17.11.1998 and subsequently he was promoted to the post of Superintendent of Customs (Preventive) on 01.01.1998. 2.2. On 23.09.2016, the applicant has been served with a major penalty charge memorandum being No. F. No. S. 21 (Misc.) - 01/2013 (Vig.)(Pt.I) under Rule 14 of the CCS (CCA) Rules, 1965 for alleged charges of (i) acceptance of illegal gratification, (ii) possessing disproportionate assets to his known source of income for the period 31.03.2005 to 09.01.2013 thus (iii) failing to maintain absolute integrity and his conduct being unbecoming of a Government Servant.
(Annexure A/1 collectively refer) 2.3. On receipt of charge memorandum dated 23.09.2016, the applicant submitted representation dated 05.10.2016 refuting all the charges leveled against him and requested the disciplinary authority to drop the proceedings against him. It is also contended by the applicant that the charge memorandum has been issued on 23.09.2016 after more than 11 years and 06 months from the date the alleged incident took place. Therefore, the said belated action on the part of the respondents is bad in law. In support of the said submission, reliance has been placed on the judgment delivered by the Hon'ble Apex Court in case of P.V. Mahadevan v. Md. T.N. Housing Board (2005) SCC 636 wherein it has clearly been laid down that inordinate delay of 10 years in initiating 5 O.A. 350/00824/2020 departmental enquiry against the appellant renders departmental proceeding to be prima facie bad in law.
2.4. The Disciplinary Authority did not agree with the explanation submitted by the applicant and had decided to hold a departmental inquiry. Accordingly, the DA had appointed an Inquiry Officer and Presenting Officer. The applicant was asked to attend "Preliminary Hearing" on 15.02.2017 which he duly complied and inquiry was held in presence of IO & PO where he was asked to examine all witness and to give a list of additional documents/witness to defend his case in order to prove his innocence and further he was directed to give his reply within two weeks. During the said inquiry, the applicant had demanded copy of the RUDs as also additional documents to prove his innocence. Subsequently, photocopy of the documents sought for were supplied to the applicant. Thereafter, the said departmental inquiry has never been concluded. There had been no exchange of briefs between the Charged Officer (CO) and PO, neither was any Inquiry Report served upon the CO. In other words, the departmental inquiry initiated in respect to the charge memorandum dated 23.09.2016 remained incomplete. 2.5. In the meantime, another charge memorandum F. No.-S21(Misc.)-
01/2013(Vig.)(Part-II) dated 09.12.2016 under Rule 14 of the CCS (CCA) Rules, 1965 has been served upon the applicant. In the said charge memorandum it has been alleged against the applicant that "by misusing his official power had helped one Shri Rajesh Sarda of M/s.
6 O.A. 350/00824/2020 Universal Agency, Kolkata in preparing and forwarding an application to CBEC, New Delhi for obtaining permission for transportation of bulk cargo etc. and also other materials from Kolkata Port to Nepal through Jogbani in Araria District, Bihar to Nepal through Nautanwa and Jogbani by Railway Rack. The applicant pursued the said application at CBEC, New Delhi and obtained an order in favour of M/s. Universal Agency by arranging payment of bribe to one Shri M.S. Badhan, Member (Customs) CBEC, New Delhi and other officials.
Further, it is alleged that "the applicant had also accepted a bribe from Shri Rajesh Sarda for the said work. The applicant, by misusing his official power, was involved in a conspiracy with other officers and accepted a bribe and thereby committed gross misconduct." (Annexure A/3 collectively refer) 2.6. On receipt of the said second charge memorandum dated 09.12.2016, the applicant had submitted his representation dated 27.12.2016 and denied the charges levelled against him.
2.7. The applicant would contend that both the charge memorandums i.e. dated 23.09.2016 (Annexure A/1) and dated 09.12.2016 (Annexure A/3) are pending and same has not been withdrawn/revoked and the disciplinary proceedings instituted in respect to the said charge memorandums are pending till date.
7 O.A. 350/00824/2020 2.8. During the pendency of the disciplinary proceedings, the applicant was placed under deemed suspension vide order dated 23.03.2018 on the ground that the applicant has been convicted for offence under Section 13(1)(e) of Prevention of Corruption Act, 1988 & 109 of IPC by vide judgment dated 06.02.2018 Ld. Judge, CBI Court (Spl.), Alipore, South 24 Parganas in Special Case No. 12/2015 and imposed order of sentence to suffer imprisonment for six years and to pay fine of Rupees Ten Lakhs vide order dated 07.02.2018 and the applicant was taken into custody w.e.f. 06.02.2018. (Annexure A/4 collectively refer) 2.9. In the meantime, the applicant being aggrieved with the conviction order passed by the Ld. Judge CBI Court dated 06.02.2018 and an order of sentence dated 07.02.2018, had approached the Hon'ble High Court immediately and filed a petition/Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 being CRA No. 95 and CRAN 1015/2018. However, the case of the applicant could not be taken up for hearing since there was a cessation of works by the lawyers at the relevant time.
2.10. Further, in the meantime, by considering the conviction of the applicant and sentence imposed upon him by the CBI Spl. Court in Special Case No. 12/2015 (CBI - RC Case No. 3A/2013) dated 06.02.2018 and 07.02.2018, the respondents in terms of provisions of Rule 19(i) of the CCS (CCA) Rules had proposed to impose major penalty as mentioned in Rule 11(iii) i.e. for 'Removal from Service which shall not be a 8 O.A. 350/00824/2020 disqualification for future employment under the Government' or the penalty under Rule 11(ix) i.e. 'Dismissal from Service which shall ordinarily be disqualification for future employment under the Government".
Accordingly, for the said proposed action to impose major penalty upon the applicant, a Show Cause Notice was issued to the applicant vide Memorandum dated 10.04.2018 (Annexure A/5 collectively refer) and the applicant was directed to file his representation on the proposed penalty. (Annexure A/5 collectively refer) 2.11. On receipt of the said show cause notice/memorandum dated 10.04.2018, the applicant had submitted his representation dated 19.04.2018 and was brought to the knowledge of the respondents that being aggrieved with the conviction/sentence order passed by CBI Spl. Court, he had immediately approached the Hon'ble High Court at Calcutta by filing an appeal No. CRA No. 95 of 2018, however, due to the resolution of the bar association, his appeal was not taken up for hearing. Subsequently, the said appeal of the applicant was ordered to be admitted by the Hon'ble High Court vide order dated 05.04.2018 and was pleased to stay the realization of fine i.e. of Rs. 10,00,000/- (Rupees Ten Lakhs) till disposal of the said appeal. Further, the Hon'ble High Court had granted liberty to the applicant to pray for bail upon notice to the State / CBI.
9 O.A. 350/00824/2020 In the said representation it was also stated by the applicant that subsequent to the order dated 05.04.2018 passed by the Hon'ble High Court, he had submitted an application for suspension of sentence and grant of bail, U/s 389 of Cr. PC on 10.04.2018 being CRAN 1015 of 2018.
Accordingly, in the backdrop of such circumstances, the applicant had requested the respondents to grant him some more time to submit his comprehensive/detailed reply to the show-cause notice since the prosecution initiated against him is now sub-judice before the Hon'ble High Court and the same was yet to attain finality and any adverse action at this stage would cause great prejudice to him. 2.12. The respondents vide letter dated 18.05.2018 with respect to the request of the applicant to grant him more time to submit his reply to the show- cause notice, had directed the applicant to appear for personal hearing on 23.05.2018. In response to it, the wife of the applicant, namely, Ms. Bandana Roy vide her representation dated 23.05.2018 requested the respondents to postpone the date of hearing since his case/appeal filed before the Hon'ble High Court was likely to be taken up for hearing on re-opening of the Court in the month of June, 2018.
2.13. Thereafter, vide speaking order dated 01.06.2018 (Annexure A/6 collectively) the Disciplinary Authority i.e. respondent No. 05 herein in exercising the powers under Rule 19(1) of CCS (CCA) Rules, 1965 10 O.A. 350/00824/2020 had imposed major penalty of 'Dismissal from Service' upon the applicant (Annexure A/5 collectively refer).
2.14. Being aggrieved with the order dated 01.06.2018 passed by Respondent No. 05, the applicant had submitted an appeal before the Appellate Authority i.e. the Chief Commissioner of Customs, Kolkata, (Respondent No. 03 herein).
The Appellate Authority had upheld the Order in Original dated 01.06.2018 passed by the Disciplinary Authority and by way of speaking order had rejected the appeal filed by the applicant vide order dated 05.12.2019/09.12.2019.
The applicant was also served a copy of the said order and he was also informed that it is open for him to file Revision Petition under Rule 29 of the CCS (CCA) Rules, 1965 against the order in appeal lies with the President of India within a period of six month from the date on which the Order in Appeal is communicated to him. (Annexure A/7 refer) 2.15. Subsequently, the appeal of the applicant was taken up for hearing and vide order dated 27.06.2018 the Hon'ble High Court suspended 'the sentence awarded against the applicant till the hearing of the appeal' and he was granted bail. (Annexure A/4 collectively refer) 11 O.A. 350/00824/2020
3. Ld. Counsel for the applicant submits that though the Hon'ble High Court vide order dated 27.06.2018 had suspended the conviction and sentence of the applicant awarded by the CBI Court, the respondents had not revoked the suspension order dated 23.03.2018 and he was not allowed to resume his duty nor the order of major penalty imposed upon the applicant in terms of Rule 19(1) of the CCS (CCA) Rules dated 01.06.2018 passed by the Disciplinary Authority has been withdrawn or revoked nor the order of Appellate Authority dated 05.12.2019 been withdrawn.
Hence, the applicant has filed the present O.A.
4. Ld. Counsel for the applicant further submits that during the pendency of this O.A., the Hon'ble High Court vide judgment dated 10.06.2022 set aside the order passed by the Ld. Spl. Court CBI in Spl. Case No. 12/2015. The copy of said judgment has been placed on record as Annexure to his rejoinder. It is stated that the CBI being aggrieved with the order passed by the Hon'ble High Court had filed SLP (Cri.) 10139-10140 before the Hon'ble Apex Court wherein the prayer for interim relief to the extent of ad interim ex-parte stay of the impugned order has been disallowed by the Hon'ble Apex Court.
4.1. Therefore, the Ld. Counsel for the applicant would argue that as on date the judgment passed by the Hon'ble High Court is in force. Hence, the impugned order of 'Dismissal from Service' dated 01.06.2018 passed by the Disciplinary Authority based on the conviction order of CBI Spl. Court is not tenable as well the impugned order passed by the Appellate Authority dated 05.12.2019 upholding the decision of the DA is also not tenable.
12 O.A. 350/00824/2020 4.2. Further, it is also submitted that the disciplinary proceedings were instituted against the applicant solely based on the complaint registered by the CBI being RC 03(A)/2013/AC-I dated 21.03.2013 which was based on the investigation carried out by the CBI in case registered being No. RC-01(A)2013 dated 09.01.2013, since the Hon'ble High Court held that the prosecution has failed to produce the documents to prove the charge alleged against the applicant and, as such, have failed to prove the case. Therefore, the accused are entitled to get benefit of doubt. Accordingly, the order of conviction and sentence passed by Ld. CBI Court was set aside and accordingly, the appeal was allowed. 4.3. Therefore, Ld. Counsel for the applicant would argue that under the circumstances, the disciplinary proceeding instituted against the applicant vide impugned charge memorandums dated 23.09.2016 and 09.12.2016 are also not tenable since the same are based on the CBI case referred hereinabove.
5. On the other hand, Ld. Counsel for the respondents by referring to the averments made in the reply would argue that the Hon'ble High Court had reversed the conviction of the applicant mainly on the ground that the prosecution failed to examine the witnesses to prove the recover and seizure memo and failure on the part of the prosecution to bring on record relevant documents to sustain the charge against the applicant, due to such lacunae the Hon'ble High Court did not concur with the finding of the CBI Spl. Court. By granting benefit of doubt, in absence of material brought on record, the Hon'ble High Court set aside the conviction and sentence of 13 O.A. 350/00824/2020 the applicant. Whereas, in the disciplinary proceeding instituted against the applicant are kept pending at inquiry stage at the relevant time.
5.1. Ld. Counsel would also argue that the order of conviction dated 06.02.2018 and order of sentence imposed upon the applicant by the CBI Spl. Court vide order dated 07.02.2018 were in force at the time of order passed by the Disciplinary Authority dated 23.03.2018 whereby the applicant was placed under deemed suspension on his conviction and subsequent to it imposed major penalty of 'Dismissal from Service' vide order dated 01.06.2018 by following the provisions contained in Rule 19(i) of CCS (CCA) Rules, 1965.
5.2. In other words, it is submitted that on the date of passing of impugned orders dated 23.03.2018 and 01.06.2018, there was no stay order or the order of suspension of the sentence was issued by the Hon'ble High Court at Calcutta. It is submitted that undisputedly the Hon'ble High Court at Calcutta had stayed and suspended the sentence imposed upon the applicant only on 27.06.2018 and not before the order passed by the Disciplinary Authority at the relevant time i.e. on 01.06.2018, as such, the DA had passed impugned order in consonance with the terms of provision of Rule 19(i) of the CCS (CCA) Rules. The Disciplinary Authority had also followed the terms of guidelines contained in Para 12(v) and Para 11 of DoP&Ts O.M. dated 21.07.2016 and by taking into consideration the conviction and sentence imposed vide Court judgment, had acted upon in terms of Rule 19(i) of CCS (CCA) Rules.
14 O.A. 350/00824/2020 Therefore, the impugned order dated 01.06.2018 cannot be said to suffer from any legal infirmities in the said facts and circumstances of the case.
6. Heard the Ld. Counsel for the parties at length and perused the materials available on record.
7. It emerges from the record that while the applicant herein was working as Superintendent of Customs (Prevention) at Haldia, West Bengal, a criminal case being No. RC-01(A)/2013 on 04.01.2013 was registered by the CBI, New Delhi against the applicant herein and others in connection with a case involving the allegation of demanding and accepting pecuniary favours and illegal gratification for processing import/export related work of M/s Universal Agency, Kolkata. In connection with the said case, search operation was carried out by the CBI, New Delhi on 09.01.2013 and an amount of Rs. 36,42,000/- was recovered from the residence of the applicant herein and had registered the case for the offence punishable under the Prevention of Corruption Act and other offence punishable under IPC.
7.1. Subsequently, on the outcome of investigation in aforesaid RC-01(A)/2013, the CBI had registered another crime case No. RC-03(A)/2013 on 21.3.2013 against applicant and his wife involving allegation of amassing assets which were disproportionate to the known source of income of the applicant. Accordingly, the said case was registered for the offence punishable under Section Prevention of Corruption Act and other offence punishable under IPC.
15 O.A. 350/00824/2020 7.2. It is noticed that the second case bearing No. RC-03(A)/2013 dated 21.03.2013 was registered by the CBI against the applicant and his wife of amassing assets which were disproportionate to the known source of income of the applicant, was evident initiated on the basis of the investigation done by the CBI in first case i.e. RC-01(A)/2013. 7.3. It also emerges from the pleadings that the CBI had submitted a closure report in RC-01(A)/2013 (i.e. the first crime case registered against the applicant by the CBI) before the Spl. Court, CBI on the ground that there is no recovery of bribe amount, there is no clear demand of bribe on the part of one Sri M.S. Badhan and there is no gross irregularity in the processing of the file and granting approval. There is also no written procedure defining the process of granting approval for transportation of the transit cargo of Nepal on Rail route.
8. Further, it is noticed that during the pendency of aforesaid two criminal cases as filed by the CBI in the Spl. Court, CBI, the Disciplinary Authority had initiated disciplinary proceeding under Rule 14 of the CCS (CCA) Rules, 1965 against the applicant vide Charge Memorandum dated 23.09.2016 for the charges about amassing assets disproportionate to his known source of income of the applicant solely based on the investigation carried out by CBI in case i.e. RC-03(A)/2013 registered against the applicant and his wife.
8.1. The applicant denied the charges as alleged against him under the Charge Memorandum. The Disciplinary Authority did not accept the explanation of the applicant and had decided to conduct departmental 16 O.A. 350/00824/2020 inquiry against the applicant in respect to Charge Memorandum dated 23.09.2016 and had appointed IO & PO in this regard.
8.2. It is apt to mention that the said departmental inquiry instituted against the applicant in respect to Charge Memorandum dated 23.09.2016 remained incomplete.
9. The Disciplinary Authority had issued another Charge Memorandum dated 09.12.2016 under Rule 14 of CCS (CCA) Rules for the charges based on the Criminal Case registered by the CBI against the applicant demanding bribe and by misusing his official power prepared and forwarded an application to the competent authority for obtaining permission for transportation of bulk cargo from Kolkata Port to Nepal through Jogbani in Araria District, Bihar to Nepal through Railway route etc..
9.1. It is noticed that the said charges as levelled against the applicant in the second charge memorandum are solely based on the investigation carried out by the CBI in crime case registered bearing No. RC- 01(A)/2013-AC-III.
9.2. It is noticed that along with the said Charge Memorandum dated 23.09.2016 and second charge memorandum dated 09.12.2016, the applicant has been supplied with a list of documents as mentioned in Annexure III which include the copies of FIR i.e. RC-1A/2013/AC- III/CBI New Delhi registered on 04.01.2013, copy of search list cum seizure memo dated 09.01.2013 of the residential premises of the applicant and also other documents, which are the part of investigation carried out by the CBI in respect to said RC-1A/2013/AC-III/CBI as 17 O.A. 350/00824/2020 well RC-3A/2013/AC-III as well the list of witnesses annexed to the charge memorandum are also the witness in the said criminal case registered by the CBI.
In sum, the disciplinary proceeding instituted against the applicant vide aforesaid two charge memorandum for the charges which are identical in nature and based on the crime case registered by the CBI against the applicant herein.
10. During pendency of the departmental inquiry instituted against the applicant in respect to the Charge Memorandum dated 23.09.2016 and 09.12.2016 as referred hereinabove, vide judgment and order dated 06.02.2018 and 07.02.2018 the Spl. Court CBI in Spl Case No. 12/2015 corresponding to RC-03(A)/2013-CBI-AC/III convicted the applicant being found guilty for the offence punishable under Section 13(1)(e) of the PC Act and, had imposed punishment of imprisonment of six years and fined Rs. 10,00,000/- and in default imprisonment for one year. Accordingly, the accused i.e. the applicant herein was taken into custody by the police authorities.
At this stage, it is required to mention that by considering the conviction order passed against the applicant and he was taken into custody, the Disciplinary Authority vide order dated 23.03.2018 placed the applicant under deemed suspension. (Annexure A/4 collectively refer) 10.1. Since the applicant herein was convicted by the Spl. Court, CBI, the Disciplinary Authority in terms of provision of 19(1) of CCS (CCA) Rules, 1965 as well the instructions contained in DoP&T O.M. to take action on the conviction of the Government servant had decided to impose major penalty of 'Dismissal or Removal upon the applicant' and for the said proposed action, 18 O.A. 350/00824/2020 the applicant has been provided opportunity in terms of provision of Rule 19(1) to submit his representation. Accordingly, vide show-cause notice dated 10.04.2018, the DA had directed the respondents to submit his representation in respect to the proposed action of imposition of major penalty on his conviction. (Annexure A/5 collectively refer) 10.2. It is noticed that on receipt of the show-cause notice, the applicant herein had submitted his representation dated 19.04.2018 requesting to grant some more time to file his representation to the proposed action of imposition of major penalty on his conviction since he has challenged the order passed by Spl. Court, CBI before the Hon'ble High Court at Calcutta by way of CRA 95/2018 and vide order dated 05.04.2018, the Hon'ble High Court admitted the appeal and stayed the realization of fine awarded by the Spl. Court, CBI till disposal of the said Appeal and further granted liberty to the applicant to pray for bail upon notice to the State / CBI.
By considering the said representation/request of the applicant, the Disciplinary Authority directed the applicant to remain present on 23.05.2018 for personal hearing. Again, on behalf of the applicant, his wife had submitted representation dated 23.05.2018 before the Disciplinary Authority requesting to postpone the date of personal hearing since the appeal filed before the Hon'ble High Court and an application for bail as well for grant of stay order on the sentence imposed upon him is pending and due to summer vacation, the case could not be taken up and was likely to be taken up by 07.06.2018. 10.3. In the meantime, the Disciplinary Authority in light of power conferred upon him in terms of provisions of Rule 19(1) of the CCS (CCA) Rules and 19 O.A. 350/00824/2020 various instructions issued by DoP&T notwithstanding anything contained in Rule 14 to Rule 18 of CCS (CCA) Rules (for dispensing with inquiry in cases of conviction and other special circumstances) and by referring to the law laid down by the Hon'ble Apex Court in the case of K.C. Sareen v. CBI, Chandigarh (2001) 6 SCC 584 had imposed major penalty of 'Dismissal' from service upon the applicant vide speaking order dated 01.06.2018 (Annexure A/6 collectively refer).
11. At this stage, it is required to mention that in the meantime, the Hon'ble High Court at Calcutta vide order dated 26.06.2018 passed in CRAN 2015/2018 in CRA 95 of 2018 with CRA 96 of 2018 had suspended the sentence of the applicant as awarded by Spl. Court, CBI till the hearing of the appeal and was released on bail on certain conditions.
12. The applicant herein being aggrieved with the major penalty order dated 01.06.2018 passed by the Disciplinary Authority in terms of Rule 19 of the CCS (CCA) Rules had filed an appeal on 03.08.2018 under Rule 23 of the CCS (CCA) Rules and had brought to the knowledge of the Appellate Authority about the order of suspension of sentence / conviction of the applicant passed by the Hon'ble High Court at Calcutta vide order dated 27.06.2018 and by mentioning other grounds requested the Appellate Authority to quash and set aside the impugned order dated 01.06.2018 passed by the Disciplinary Authority.
However, the Appellate Authority though had referred the submission of the appellant i.e. applicant herein, however, for reason based known to him, had ignored the order passed by the Hon'ble High Court at Calcutta dated 27.06.2018 whereby the sentence of the applicant has been suspended and the applicant was released on 20 O.A. 350/00824/2020 bail. In other words, the sentence imposed on the conviction of the applicant by Spl. CBI Court has been suspended by the Hon'ble High Court at Calcutta.
12.1. The impugned order dated 01.06.2018 whereby the Disciplinary Authority imposed major penalty of 'Dismissal of Service' upon the applicant was solely based on the conviction order passed by the Spl. CBI Court. However, as noted hereinabove, the order dated 27.06.2018 passed by the Hon'ble High Court suspending the sentence of the applicant ought not to have been ignored by the Appellate Authority while deciding the appeal filed by the applicant.
Therefore, in our considered view, the Appellate Authority had erred in not considering the order passed by the Hon'ble High Court as referred hereinabove. Since, the conviction and sentence of the applicant was suspended by the Hon'ble High Court, we are of the firm opinion that the impugned order passed by the Appellate Authority dated 05.12.2019 upholding the punishment imposed upon the applicant by the Disciplinary Authority dated 01.06.2018 is not tenable.
13. At this stage, we cannot ignore the fact that subsequently vide judgment dated 10.06.2022 in CRA 95 of 2018 (Nand Kishore Rai v. Central Bureau of Investigation) the Hon'ble High Court at Calcutta while allowing the appeal of the applicant had quashed and set aside the order dated 06/07.02.2018 of conviction and sentence passed by the CBI Spl. Court in Spl Case No. 12/2015.
13.1. In this regard, it is brought to the knowledge of this Tribunal that being aggrieved with the judgment of Hon'ble High Court at Calcutta, the SLP (Crl.)/Criminal Appeal No. 142-143/2023 filed by the CBI came to be dismissed by the Hon'ble Apex Court vide judgment dated 21 O.A. 350/00824/2020 18.04.2023 wherein the Hon'ble Apex Court by agreeing with the finding recorded by the Hon'ble High Court at Calcutta in the impugned judgment held that:
" Heard learned counsel appearing for the appellant and learned counsel for the respondent.
The impugned order is right in eschewing the evidence which formed part of the different crime number which was in fact closed.
Additionally, it rightly found fault with the approach of the trial Court in not considering the defence witnesses.
We find no reason to interfere with the impugned order(s).
Accordingly, the appeals stand dismissed."
14. It can be seen that the Hon'ble Apex Court while dismissing the appeal filed by the CBI and upholding the order passed by the Hon'ble High Court at Calcutta had held that the impugned order is right in eschewing the evidence which formed part of the different crime number which was in fact closed. Additionally, it rightly found fault with the approach of the trial Court in not considering the defence witnesses.
Thus, the judgment passed by the Hon'ble High Court had attained finality. At this stage, it is apt to mention that the Hon'ble Apex Court had taken into consideration that the crime case registered earlier by the CBI is closed i.e. RC- 01(A)/2013-AC-IIII.
22 O.A. 350/00824/2020
15. In light of what has been discussed above, in our considered view, the order passed by the Appellate Authority dated 05.12.2019 is not tenable and thus the same is quashed and set aside. Consequently, the order dated 01.06.2018 passed by the Disciplinary Authority in terms of Rule 19(i) of the CCS (CCA) Rules also does not hold the field and accordingly same is quashed and set aside. The impugned suspension order dated 23.03.2018 also does not survive and the same is quashed and set aside. Accordingly, the applicant is entitled to all the consequential benefits as per the extant rules.
16. So far, submission of Ld. Counsel for the applicant that since the Hon'ble Apex Court held that the Hon'ble High Court was right in avoiding / eschewing the evidence which formed part of the different crime number which was in fact closed, according to the applicant, the said closed case being No. RC-1(A)/2013-AC-III has been held to be closed, therefore, the disciplinary proceedings which were instituted against the applicant vide charge memorandum dated 23.09.2016 and 09.12.2016 based on crime registered by CBI being RC-01(A)/2013/AC-III and the said RC- 03(A)/2013 is required to be cancelled / rescind / withdrawn / set aside, is concerned, in our considered view, the disciplinary proceeding instituted against the applicant under Rule 14 of CCS (CCA) Rules vide impugned charge memorandum which are undisputedly based on the investigation carried out by the CBI in No. RC- 01(A)/2013/CBI-AC-III and same has been held to be closed by the Hon'ble Apex Court in Criminal Appeal No. 123-124/2023 decided on 18.04.2024. It is settled principle of law that the nature and scope of criminal case are very different from those of departmental proceeding and an order of acquittal, cannot conclude the departmental proceeding as held by the Hon'ble Apex Court in the case of Nelson 23 O.A. 350/00824/2020 Motis v. Union of India reported in (1992) 4 SCC 711 : (1993) SCC (L&S) 13. The Hon'ble Apex Court in the case of SBI v. P. Zadenga reported in (2023) 10 SCC 675 held that as a principle of law, a departmental proceeding pending criminal trial would not warrant an automatic stay unless, a complicated question of law is involved. Further, an acquittal in a criminal case ipso facto would not tantamount to closure or culmination of proceedings in a departmental inquiry.
Therefore, keeping in mind the dictum laid down by the Hon'ble Apex Court with regard to limited scope of judicial interference in pending disciplinary proceedings instituted against an incumbent, we are of the view that the pending disciplinary proceeding against the applicant under Rule 14 of CCS (CCA) Rules needs to reach a logical end by order of the Competent Authority/Disciplinary Authority taking into consideration the material available on record including the judgments rendered by the Hon'ble High Court at Calcutta dated 10.06.2022 in CRA No. 95 of 2018 as well the judgment passed by the Hon'ble Apex Court in Criminal Appeal No. 142-143/2023 decided on 18.04.2024 and the Competent Authority/Disciplinary Authority is accordingly directed to take a final decision in respect to the pending disciplinary proceeding against the applicant within two month from receipt of a certified copy of this order.
17. In view of the aforesaid discussion, the O.A. is partly allowed. There shall be no orders as to costs.
(Suchitto Kr. Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sp 24 O.A. 350/00824/2020