Central Administrative Tribunal - Kolkata
Suranjan Modak vs Cpwd on 2 May, 2024
=O tem 20; Court) 1 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/986/2021 M.A. No. 350/663/2023 Date of Hearing : 23.04.2024 Date of Order :02- Jos 2024 Coram: Hon'ble Mr. Anindo Majumdar, Administrative Member Hon'ble Mr. Rajnish Kumar Rai, Judicial Member In the matter of : Suranjan Modak, Son of Late Gopal Chandra Modak, aged about 45 years, residing at 12 Station Road, Fatakgora, Kalitala, P.O.- Chandannagar, District- . Hooghly, Pin-712136. beveenece Applicant -Versus- 1. The Union of India, Service through The Secretary, Government of India, Ministry of Housing and Urban Affairs, F-Wing, 2nd -Floor, Nirman Bhavan, New Delhi 110011. 2. The Chief Controller of Accounts, Principal Accounts Office, Ministry of Housing and Urban Affairs, F-Wing, 2nd Floor, Nirman Bhavan, New Delhi - 110011. 3. The Pay & Accounts Office (Printing), . (C.P.W.D Ministry of Housing & Urban Affairs, CGO Complex, D-Wing, 4th Fioor, DF-Block, Salt Lake City, Sector- |, Kolkata- 700064. Respondents For The Applicant(s): Mr. M.N. Roy, Mr. G. Halder Mr. N. N. Roy For The Respondent(s): Mr. B. B. Chatterjee ORDER Per: Mr, Rajnish Kumar Rai, Member (J)
Heard Ld. Counsel for both sides.
2. The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
Ly " Item 20; Court-Il | ' 2 ; O.A. No. 350/936/2021 "a) An order do issue thereby staying the entire departmental proceeding so initiated against your applicant vide Memorandum No. C-14011/SM/Pr.AO/LC/ S-7/1871-72 dated 21.05.2021 till the disposal of the criminal proceeding, so _ initiated against your applicant, as the charges are same and identical bott in departmental. proceeding as well as in criminal proceedings.
(b) An order do issue directing the respondent quthorities to re- consider the representation dated 07.09.2020 and 10.06.2021 made before them after giving an opportunity of hearing to the applicant herein and to dispose of the same by | passing a speaking and reasoned order, within a stipulated time period.
(c) An order do issue directing the concerned respondent authorities to transmit all the records before this Hon'ble Tribunal in ends of justice.
(d) Any other appropriate order/orders direction/directions as this Hon'ble Tribunal may deem fit and proper to protect the right of the applicants."
3. The applicant herein had joined the Principal Accounts Office under the Ministry of Health & Family Welfare as Accountant on 23.04.2003. After successful completion of his probation period, his service was confirmed on 23.04.2005. Thereafter, after clearing the departmental examination, he was posted as Asstt. Accounts Officer in the office of the Executive Engineer, CCW, AIR, Ministry of Information & Broadcasting, and, thereafter, transferred to the office of Executive Engineer, KCD-II, CPWD, M/o Housing & Urban Affairs, Kolkata on 01.08.2015 due to inter-ministerial transfer. During the period of service at, the office of the Executive Engineer KCD-II, CPWD, Kolkata, the Executive Engineer had filed a complaint dated 27.07.2019 and 29.07.2019 before the Officer In-charge, Bhowanipur Police Station which culminated into FIR No. 241/2019 dated 29.07.2019 under Section 120B, 420, 409 of I.P.C. and Section 66© of the Information Technology Act. The applicant was granted anticipatory bail by the competent Court L~ Item 20; Court-Il 3 O.A. No. 350/986/2021 of law on 15.12.2020 though at a subsequent stage, investigation under the said FIR was continued against applicant.
The applicant submits that, during his incumbency since joining of the office under the respondents, he performed his duties. with utmost sincerity and honesty. However, to his utter surprise, he was put under 'suspension vide order dated 02.08.2019 issued by the Chief Controller of Accounts, Principal Accounts Office, Ministry of Housing & Urban Affairs. Thereafter, a memorandum of chargesheet dated 21.05.2021 was issued by the. respondent no. 2 levelling 6 number of charges alleging various. irregularities during the period from 01.08.2015 to 01.07.2019 while functioning as the Asstt. Accounts Officer at KCD-II, CPWD. Therefore, he is aggrieved on the grounds that the disciplinary proceedings should be stayed till disposal of the criminal proceedings against him.
4. In their reply to the O.A., the respondents have stated that the chargesheet has been issued' on.account of grave misconduct committed by the applicant while he was posted as AAO at KCD- Il, CPWD during the period from 01.08.2015 to 01.07.2019. The respondents have stated that the applicant has committed gross irregularities in various works under KCD-II, Kolkata and many online transactions were made by the applicant transferring various amounts to the bank account held jointly by him with his mother Mrs. Swapna in the Bank Of Baroda, Chandanagar Bratch. The said conduct, along with other unauthorized online L-
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i item 20; Court-ll 4 O.A. No. 350/936/2021 transactions, have been carried out by the applicant ignoring and contravening rule 3(1)(i), 3(1)(ii), 3(1)(iii) and 3(1)(vi) of the CCS(CCA) Conduct Rules.
'Ld. Counsel for the respondents further submits that the instant O.A. against the chargesheet is not maintainable as per Section 19 of the Administrative Tribunals Act, 1985 as it is not an "order" against which the applicant is aggrieved. The final order with regard to the misconduct of the applicant, if proved, will be passed by the Disciplinary Authority. Ld. Counsel submits that, therefore, this O.A. is premature at this stage and hence not maintainable.
6.. Heard Ld. Counsel on both sides at length and perused the material on record.
7. During hearing, on 09.07.2021, an 'ex-parte order was " passed by this Tribunal directing the respondents to dispose of the representation of the applicant dated 29.06.2021. In- consequence thereto, the competent authority has disposed of _ the said representation vide a reasoned and speaking order dated 01.11.2021. Ld. Counsel for the respondents has also submitted that the Hon'ble Apex Court, in the case of Secretary, Min. of Defence vs. Prabhash Chandra Mirdha reported in 2011(11) SCC 565 has held that in case the delinquent employee has any grievance with respect to the chargesheet, he must raise the issue by filing a representation. In accordance with those provisions, the representation of the applicant has L ©) tem 20; Court-ll 5 O.A. No. 350/986/2021 been dealt with on merit regarding stay on the disciplinary proceedings pending a criminal trial so that no prejudice is caused to the applicant in disclosing his defence before conclusion of the criminal proceedings, and, after discussing the entire facts, the respondents have passed the aforesaid speaking order wherein the judgment passed by the Hon'ble Apex Court in the case of Capt. M Paul Anthony Vs Bharat Gold Mines Limited and Another reported in 1999(3) SCC 679 is also relied upon.
7. After perusal of the entire records, the sole question that needs to be adjudicated is that pending a criminal trial, whether | _ the disciplinary proceedings can be stayed, and, in consequence thereof, whether the chargesheet can also be quashed by this Tribunal.
In the case of Prabash Chandra Mirdha (supra), the
- Hon'ble Apex Court has held as under:- ° ' "Law does not permit quashing of chargesheet in a routine manner. In case the delinquent employee:has any grievance in respect of chargesheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon."
The Hon'ble Supreme Court has further observed in the same judgment i.e. Secretary, Min. of Defence vs. Prabhash Chandra Mirdha 2011 (11) SCC 565 as under:
"ORDINARILY a writ application does not lie against a charge sheet 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, L ' Item 20; Court-tI ; 6 ' OLA, No. 350/936/2021 \ s 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."
Further, in the case of Chairman, LIC of India vs. A. Masilamani (SCC 2013 6 530) the Hon'ble Supreme Court has observed as follows:-
"Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that Courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the Same are concluded, on the aforementioned grounds. The Court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercise such Power, it exceeds its power of judicial review at the very threshold. Therefore, a chargessheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by Court. "
8. The submission of Ld. Counsel for the applicant regarding stay/quashing of chargesheet on the ground that Departmental Proceedings has to be stayed till disposal of criminal case is not tenable in law as we are in opinion that criminal proceeding continues on the basis of 'proof beyond doubt' while departmental proceeding is on the concept of 'preponderance of
-probability'. Therefore, highlighting the difference between the proceedings in the criminal case and the departmental proceedings, the Hon'ble Apex Court has adjudicated this issue in various judicial pronouncements. The conclusions that are deducible from various judgments of the Hon'ble Apex Court in this regard have been summarized in the case of Capt. M Paul L OO Iter 20; Court-lI 7 O.A. No. 350/936/2021 Anthony Vs Bharat Gold Mines Limited and Another reported in (1999) 3 SSC 679 as follows:-
"(i) Departmental proceedings and Proceedings in a criminal Case can be proceeded Simultaneously as there is no bar in their being conducted simultaneously, though separately.
fii} If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions law and fact, it would be desirable to stay the departmental Proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicate questions of fact. and law are involved in that case will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at fii) and fiii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed; the departmental proceedings, even if they were stayed on account of the pendency of the criminal Case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty. administration may get rid of him at -the earliest."
Further, in R.P. Kapur Vs. Union of India reported in AIR 1964 SC 787, the question before the Constitution Bench of the Hon'ble Apex Court was that the petitioner therein had been suspended owing to the pendency of criminal proceedings against him which was challenged on the anvil of Article 314 of the Constitution. Thus, this decision is not of much relevance for the resolution of the legal nodus before us, save for the observations that "if the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in the case of acquittal proceedings may follow where the acquittal is other than L Item 20; Court-ll 8 O.A. No. 350/936/2021 1 honourabie." However, on this aspect of the law we need go no further than the recent decision in Inspector General of Police Vs. S. Samuthiram [(2013) 1 SCC 598: (2013) 1 SCC (L&S) / 229] since it contains a comprehensive discourse on all the "prominent precedents. The Hon'ble Apex Court has observed therein as under:-
"This Court has concluded, and we respectfully think correctly, that . acquittal of an employee by a oriminal court would not automatically ; and conclusively impact departmental proceedings. Firstly, this is Because of the disparate degrees of proof in the two viz. beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmentai enquiries.
Secondiy, criminal prosecution is not within the control of the department concerned and acquittal could be the consequence of shoddy investigation or slovenly assimilation eof evidence, or dackadaisical if not collusive conduct of the trial, ete."
9, Considering the above preliminary objection with regard to "non-admissibility of this O.A. under Section 19 of the Administrative Tribunals Act, 1985 as a chargesheet is not considered as an "order" against which the applicant is 'aggrieved, and, in the light of the aforementioned judicial pronouncements on the subject, we are of the opinion that this O.A. against the chargesheet is not maintainable. The present O.A. is therefore premature and the same is accordingly dismissed. All pending M.A.s are also accordingly disposed of.
Interim order granted, if any, stands discharged.
9. This O.A. stands dismissed in the aforesaid terms. There will be no order as to costs.
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: a ¥ (Rajnish Kumar Ra) (Anindo Majumdar) Member (J) Member (A) Us