Central Administrative Tribunal - Delhi
Yuvraj Gupta vs Union Of India on 17 February, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1529/2012 Order reserved on: 10.02.2013 Order pronounced on: 17.02.2014 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Yuvraj Gupta Retd. Commissioner Central Board of Custom & Excise Age-63 years S/o Late Shri Munish Gupta, R/o 858, Sector-A, Pocket B&C, Vasant Kunj, New Delh-110070. ..Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Union of India Through Secretary (Revenue), Ministry of Finance, North Block, New Delhi. 2. The Chairman, Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi. 3. The Pay & Accounts Officer, Pay & Accounts Office, Directorate General of Inspection, Custom and Central Excise, Drum Shape Building, I.P. Estate, New Delh-110002. 4. The Under Secretary To the Government of India, AD V(B), 612, 6th Floor, Hudco Vishala Building, Bhikaji Cama Place, R.K. Puram, New Delhi-110066. ..Respondents (By Advocate: Shri R.V. Sinha) ORDER
By Honble Mr. G. George Paracken, Member (J) The Applicants grievance is that even though he was served with the Memorandum dated 30.10.2008 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965, the Disciplinary Authority did not take any steps to conduct the enquiry and to conclude the same during the last over 5 years. As a result, he has been denied the retirement benefits from 31.10.2008, i.e., the date of his superannuation. Hence he has filed this Original Application seeking the following reliefs:-
(i) To set aside the order at Annexure A-1 dated 30.10.2008 along with Article of Chare and imputation of misconduct and order dated 22.10.2009 at A-2 and to further direct the Respondents to release the Applicant his pensionary benefits along with regular pension w.e.f. the date of superannuation, i.e., 31.10.2008 with 24% rate of interest on the entire amount till the date of actual payment.
(ii) Any other relief which this Honble court deems fit and proper may also be awarded to the Applicant.
2. The brief facts of the case are that the Applicant was served with the following Article of Charge, 39 documents and Nil witnesses to sustain them as under:-
Articles of Charge:
Shri Yuvraj Gupta, Commissioner, while working in different capacities in Customs and Central Excise Department, during the period 01.01.1987 to 01.03.2004 had received gifts in the name of his family members, i.e., wife, children and Yuvraj Yashash Gupta (HUF), as detailed in Annexure-A and failed to intimate the transactions in respect of said gifts to the prescribed authority within the prescribed period.
Thus, Shri Yuvraj Gupta, Commissioner failed to maintain absolute integrity and acted in a manner unbecoming of a public servant. By the above acts of omission and commission, Shri Yuvraj Gupta, Commissioner committed gross misconduct and contravened provisions of Rules 3(i) & (iii) and Rule 13 of CCS (Conduct) Rules, 1964.
3. The Statement of Imputation of Misconduct and Misbehaviour in support of the Articles of Charge is also reproduced as under:-
It is revealed during the course of investigation conducted by the CBI against Shri Shri Yuvraj Gupta, Commissioner that in respect of gifts received in the name of his wife, children and Yuvraj Yashash Gupta (HUF), no intimation was filed or reported to the prescribed authority as required under the CCS (Conduct) Rues, 1964.
2. Gifts received in the name of his children from his mother and relatives were deposited in HUF account. The said HUF had two adult co-parceners namely Smt. Anjana Gupta and Shri Yuvraj Gupta and the other co-parceners being their three minor children. Shri Gupta claimed that over a period of time gifts amounting to Rs.4,32,868/- were given by various relatives to three minor co-parceners of HUF. Details of amount received as gifts are as under:-
(i) Smt. Raksha Gupta (mother of Yuvraj Gupta) Rs.1,90,000/-
(ii) Shri J.K. Mittal (uncle of Sh. Yuvraj Gupta) Rs.1,50,000/-
(iii) Smt. Puspawati Anand Rs. 20,000/-
(iv) Satyavrata (Maternal Uncle) Rs. 14,468/-
(v) Shri A.K. Anand (Maternal Uncle) Rs. 6,100/-
(vi) Shri Santosh Kumar (grandfather) Rs. 28,100/-
(vii) Cash received from friends and relative
On birth of Yashash Gupta Rs. 25,200/-
2.1 These gifts were placed in individual SB A/c of the minor children and were later transferred to fixed deposit in their name. Subsequently, all these accounts were transferred to the said HUF account. Thus, total balance in the said account was Rs.8,14,032.57. All the gifts were received vide cheques. Major amount, i.e., Rs.1,90,000/- and Rs.1,50,000/- were received from Smt. Raksha Gupta (mother of Yuvraj Gupta) and from Shri J.K. Mittal (Grandfather, i.e., uncle of Shri Yuvraj Gupta).
2.2 At the time of receipt of the gifts, all the three children of Shri Yuvraj Gupta were minor and hence he was required to give intimation to the department under the CCS (Conduct) Rules, 1964. Shri Yuvraj Gupta being, Karta of HUF has not intimated the receipt of the said gifts to the Department as is mandatory under CCS (Conduct) Rules, 1964.
3. Aakansha Gupta claimed her income from different sources viz. gifts, interest on FDRs, profit from shares, interest on bonds, dividend from shares etc. Statement of capital formation by Aakansha Gupta, submitted during investigation is as under:-
Sl.No. Source of income 1988-1999 1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 Total
1. Gifts 211950 210000 400000 23187 845137
2. SB Interest 3172 23961 27471 23256 6841 84700
3. FDR interest 20391 25767 23760 18152 12261 100691
4. Profit from shares 428909 23474 296709 753432 1503963
5. Interest from bonds 8186 8326 7316 23828
6. Dividend from shares 125000 8275 58517 191792 Total 211950 662472 451167 231078 355077 838367 2750111
7. Income tax paid 100707 2596 3832 81731 1227 190093
8. Income tax payable -69819 211950 561765 448571 227246 273346 837140 256018 3.1 As indicated in the table above, during 1998-99 to 2003-04 Ms. Aakansha Gupta claimed to have received gifts amounting to Rs.8,45,137/-. Though, all the above said gifts were received vide cheque/DDs, these were not intimated by Shri Yuvraj Gupta to department under CCS (Conduct) Rules. In this regard investigation revealed that though, during the time when the gifts were received, Ms. Aakansha was major, she was not gainfully employed and, therefore, had no independent source of income. Shri Yuvraj Gupta has not intimated the Department about her daughter having her independent sources of income.
4. Details of gifts in respect of which no intimation was filed by Shri Yuvraj Gupta as required under Rule 13 of CCS (Conduct) Rules, 1964 is enclosed as Annexure-A.
5. Thus Shri Yuvraj Gupta, Commissioner, has failed to maintain absolute integrity and acted in a manner unbecoming of a public servant, and has contravened provisions of Rule 3(i) and (iii) and Rule 13 of CCS (Conduct) Rules, 1964.
The list of documents 1. Statement of SB A/c 32435 in the name of Yuvraj Gupta in Bank of India, Ballard Estate, Mumbai.
2. Statement of SB A/c 33079 in the name of Smt. Anjana Gupta in Bank of India, Ballard Estate, Mumbai.
3. Statement of SB A/c 14901010004718 in the name of Shri Yuvraj Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
4. Statement of SB A/c 14901010004725 in the name of Smt. Anjana Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
5. Statement of SB A/c 14901010006040 in the name of Ms. Aakanksha Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
6. Statement of SB A/c 20141 of Shri Yuvraj Gupta in UTI Bank, Fort, Mumbai.
7. Statement of SB A/c 20109 of Smt. Anjana Gupta in UTI Bank, Fort, Mumbai.
8. Statement of SB A/c 18724 of Ms. Aakanksha Gupta in UTI Bank, Fort, Mumbai.
9. Statement of TD-QIC A/c 14901040003056 in the name of Smt. Anjana Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
10. Statement of TD-QIC A/c 14901040003063 in the name of Smt. Anjana Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
11. Statement of TD-QIC A/c 14901040004992 in the name of Smt. Anjana Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
12. Statement of TD-QIC A/c 14901040003094 in the name of Ms. Aakanksha Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
13. Statement of SB A/c 30010 in the name of Shri Yashash Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
14. Statement of SB A/c 40257 in the name of Ms. Unnati Gupta in UTI Bank Ltd., Napean Sea Road, Mumbai.
15. Letter dated Nil, 2006 of Shir P. Sriniwasan, Asstt. Vice President Operations), UTI Bank Ltd., F.M. Road, Fort Mumbai along with statement of OD A/c 5093 of Smt. Anjana Gupta and details of FDRs in the name of Aakanksha Gupta, Yuvraj Gupta and Anjana Gupta and interest certificates of different accounts in UTI Bank Fort, Mumbai.
16. Statement of ODCC A/c 149010100000125 of UTI Bank Ltd., Napean Sea Road, Mumbai.
17. Letter No.UTIB/OPS/ABR/2004-05/008 dated 07.04.2005 of Shri Babu Raj a Manager (Operations), UTI Bank Ltd. and seizure memo dated 8.4.2005 for seizure of true copies of account opening forms of FD 667346 and SB A/c Nos. 20141, 20109 and 18724.
18. Accounts opening of SB A/c No.__1718 of Shri Yuvraj Gupta, 4725 of Smt. Anjana Gupta 6040 of Aakashna Gupta 40027 of Unnati Gupta and 30010 of Yashash Gupta and A/c No.149010400004992 of Smt. Anjana Gupta.
19. Seizure memo dated 18.8.2006 for seizure of account opening forms of different accounts of Shri Yuvraj Gupta and his family from State Bank of Patiala, Meerut Cantt.
20. Account opening form of SB A/c Nos. 5888/44 of Ms. Aakanksha Gupta and Anjana Gupta of State Bank of Patiala, Meerut Cantt. and statement of this account.
21. Account opening form of SB A/c Nos.5898/44 of Yashash Gupta U/G Mrs. Anjana Gupta of State Bank of Patiala, Meerut Cantt. and statement of this account.
22. Account opening form and statement of account of SB A/c No.5889/44 of Ms. Aakanksha Gupta U/G Smt. Anjana Gupta of State Bank of Patiala, Meerut Cantt.
23. Account opening form and statement of account of SB A/c No.5890/44 of Ms. Unnati Gupta U/G Smt. Anjana Gupta of State Bank of Patiala, Meerut Cantt.
24. Account opening form and statement of account of SB A/c Nos.5869/44 of Yuvraj Yashash Gupta HUF of State Bank of Patiala, Meerut Cantt. and statement of this account.
25. Letter dated 17.08.2006 of Shri S.R. Sehrawat, Branch Manager, State Bank of Patiala, Meerut Cantt.
26. Statement of SB A/c No.28843 in the name of Smt. Anjana Gupta in UTI Bank ltd., Barakhamba Road, New Delhi.
27. Statement of SB A/c No.0120-008579-006 28843 in the name of Shri Yuvraj Gupta, Smt. Anjana Gupta in HSBC Bank Ltd., New Delhi.
28. Statement of SB A/c No.051-291284-006-006 in the name of Shri Yuvraj Gupta and Smt. Anjana Gupta in HSBC Bank Ltd., New Delhi.
29. Statement of SB A/c No.5511 in the name of Shri Yuvraj Gupta in Bank of Baroda, Meerut.
30. Statement of SB A/c No.12281 in the name of Smt. Anjana Gupta in Bank of Baroda, Meerut.
31. Statement of SB A/c No.0152939715 (Old)/32410083872 (New) in the name of Sh. Yuvraj Gupta in Standard Chartered Bank, Kolkata.
32. Statement of FD A/c No.32430075670 in the name of Sh. Yuvraj Gupta in Standard Chartered Bank, Kolkata.
33. Statement of FD A/c No.32430075662 in the name of Sh. Yuvraj Gupta in Standard Chartered Bank, Kolkata.
34. Statement of SB A/c No.15412(Old)/60527(New) in the name of Smt. Anjana Gupta and Yuvraj Gupta in State Bank of India, Church Gate, Mumbai.
35. Statement of SB A/c No.16210(Old)/60538(New) in the name of Ms. Aakansha Gupta @ Cherry in State Bank of India, Church Gate, Mumbai.
36. Service Book and Personal filed of Shri Yuvraj Gupta.
37. Seizure memo dated 8.4.2005, letter dated 7.4.2005 of Syndicate Bank, Tardeo, Mumbai along with enclosure, i.e., three original cheques bearing No.950237, 947466 and 947401 and certified copy of cheque 948492 of Syndicate Bank, Tardeo, Mumbai.
38. Copies of Income Tax Returns filed by Smt. Anjana Gupta.
39. Copies of Income Tax Returns filed by Ms. Aakansha Gupta.
4. According to the Applicant, the Disciplinary Authority has purposely issued the aforesaid Memorandum of Charges only to deprive him of the terminal benefits due to him. He has also submitted that after issuing the aforesaid charges, the Disciplinary Authority simply abandoned further proceedings in the enquiry and left the Applicant in suspended animation. He has also submitted that from the Articles of Charge itself, it can be seen the alleged incidents mentioned therein occurred in the years 1995, 1996, 1997, 1998, 1999 and 2000 and without any explanation, the Disciplinary Authority took more than 8 years to 13 years to frame them as charges against him. Further, according to him, even after issuing the aforesaid Articles of charge, there was no efforts whatsoever on the part of the Disciplinary Authority to proceed with the enquiry for the last over 5 years.
5. The learned counsel for the Applicant has also submitted that the Disciplinary Authority itself has no evidence to prove the allegations made against him as not even a single prosecution witness has been listed to prove the list of 39 documents furnished to him along with the Articles of Charge. In this regard, the learned counsel for the Applicant has relied upon the recent judgment of the Honble High Court of Delhi in Writ Petition ( C) No.4245/2013 - Union of India and Another Vs. Hari Singh decided on 23.09.2013. The Respondent in the said case was also an employee of the Directorate of Revenue Intelligence (DRI for short) under the Customs Department. He had earlier filed OA 1844/2010 before this Tribunal challenging the decision of the Petitioners therein to hold a departmental enquiry against him on the ground of inordinate delay in commencement of disciplinary proceedings. The alleged incident was with regard to availing of duty drawback on export of chief quality junk UPFC pipes during the years 1998 and 1999 by M/s. Aravali (India) Limited, Hissar which culminated in issuance of show cause notice to the exporter. However, no notice was issued to the Applicant therein as nothing adverse was found against him. However, Disciplinary Authority vide memorandum dated 25th February, 2011 issued the Articles of charge to him and the Enquiry Officer has also submitted his report. The contention of the Respondent therein was that after a lapse of 13 years of the alleged transaction which was also the subject matter of the aforesaid show cause notice, the Disciplinary Authority has issued the Articles of Charge. The Tribunal, after detailed discussion of the case, passed an order on 08.01.2013 holding that there was inordinate and unexplained delay in commencement of the disciplinary proceedings against the Applicant and the same was quashed and set aside. The Respondents challenged the aforesaid order before the High Court and the High Court, vide judgment in W.P. (C ) No.4245/2013 (supra) dated 23.09.2013, dismissed it finding no merit in it and an amount of Rs.20,000/- was also imposed upon the Petitioner as cost. The relevant part of the said judgment is as under:-
59. We find that the courts have even held that delay in initiating disciplinary proceedings could tantamount to denial of a reasonable opportunity to the charged official to defend himself and therefore be violative of the principles of natural justice. In this regard, reference may usefully be made to the pronouncement of the Kerala High Court reported at 2001 (1) SLR 518 Meera Rawther Vs. State of Kerala wherein it has been held as follows:-
3. The court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar vs. Y.B. Zala and Others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-today diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a prevision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice.
60. So far as the prejudice is concerned, the long period which has lapsed between the alleged transaction and issuance of charge sheet would by itself have caused memory to have blurred and records to have been lost by the delinquent. Therefore, the respondent would be hard put to trace out his defence. The prejudice to the respondent is writ large on the face of the record. The principles laid down by the Supreme Court as well as by this court in the judgments cited by the respondent and noted above squarely apply to the instant case.
While considering the aforesaid case, the High Court have taken into consideration the various judgments passed by the Apex Court in State of M.P. Vs. Bani Singh and Another 1990 Supp. SCC 738, P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SC 636 and State of A.P. Vs. N. Radhakishan JT 1998 (3) SCC 123 etc. wherein it was held that that on the ground of inordinate and unexplained delay prejudicial to the delinquent employee, the Articles of Charge are liable to be quashed and set aside. It has also considered the judgments of the Apex Court in the cases of The Government of Andhra Pradesh and Others Vs. Appala Swamy 2007 (3) SCALE 1 and Chairman, LIC of India and Others Vs. A. Masilamani JT 2012 (11) SC 533 wherein it has been held that no hard and fast rule can be laid on the effect of delay in concluding disciplinary proceedings or on the aspect of its impact on the Government servant. In the said judgment, the High Court has also considered its earlier judgment in Writ Petition (C ) No.4757/2007 Union of India Vs. V.K. Sareen decided on 03.07.2009 wherein it has been held as under:-
13. It is trite law that disciplinary proceedings should be conducted soon after the alleged misconduct or negligence on the part of the employee is discovered. Inordinate delay cannot be said to be fair to be Delinquent Officer and since it would also make the task of proving the charges difficult. It would also not be in interest of administration. If the delay is too long and remains unexplained, the court may interfere and quash the charges. However, how much delay is too long would depend upon the facts of each and every case and if such delay has prejudiced or is likely to prejudice the delinquent in defending the enquiry ought to be interdicted.
6. He has also relied upon an order of this Bench in OA No.3032/2013 Constable Gandharv Singh Vs. Govt. of NCTD & Others. The operative part of the said order reads as under:-
15. We have heard the learned counsel for the Applicant, Shri Sachin Chauhan and the learned counsel for the Respondents, Shri Amit Anand. We have also perused the judgments relied upon by the Applicant as well as the records produced by the respondents. First of all, we see the allegations made against the Applicant are based on false premises. As per the record, FIR 37/2002 was registered against Shri Balbir Singh, Shri Sunil Kumar Gupta and the Applicant under Sections 306 and 420 of IPC on 20.1.2002. The offence under Section 306 of IPC is abetting the commission of suicide and the offence under Section 420 is cheating and thereby dishonestly inducing delivery of property, or the making, alterations or destructions of a valuable security. Both are cognizable and non-bailable offences. While the punishment for the former is imprisonment for 10 years and fine and for the latter it is imprisonment for 7 years and fine. However, the trial court under vide order dated 04.08.2005 charged Shri Balbir Singh and Shri Sunil Gupta under FIR 37/2002 only under Section 420 IPC and the Applicant was charged under Section 384 IPC. The offence under the said section is extortion which is cognizable and non-bailable carrying the punishment of imprisonment for 3 years or fine or both. Therefore, the statement of the Disciplinary Authority while initiating the departmental enquiry against the Applicant vide FIR 37/2002 u/s 306/420 IPC was pending against him was without application of mind and factually incorrect. While initiating the Disciplinary Proceedings against Applicant on 09.12.2009, the Disciplinary Authority was not even aware that the charge against the Applicant in the criminal trial was only u/s 384 of IPC and not under Section 306 and 420 of IPC. Even the Enquiry Officer continued with the enquiry on the presumption that the charge against the Applicant continued to be under Sections 306 and 420 IPC in his report, he has, therefore, stated that it was established that a criminal case vide FIR 37/2002 under sections 306 and 420 IPC was registered against the Applicant. It is a well settled legal preposition that in a case, if the foundation is removed, the entire superstructure would fall. In Badrinath Vs. Government of Tamil Nadu 2000 (8) SCC 395 the Apex Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically. It is, therefore, seen that the Disciplinary Authority has ordered departmental enquiry against the Applicant without proper application of mind. The allegations/charges were vague. The findings of the Enquiry Officer are also factually incorrect. On this important ground alone the order initiating the departmental proceedings against the Applicant, the charge made against the Applicant in the departmental proceedings, the Enquiry Officers report, the Disciplinary Authoritys order and Appellate Authoritys order are liable to be quashed and set aside.
16. Further, it is seen that the alleged incident of torture by the Applicant has taken place on 19.01.2002 as per the copy of the FIR 37/2002 registered on 20.01.2002 available on the record. There is no explanation as to why there was inordinate delay of nearly 8 years on the part of the Respondents in initiating the departmental proceedings against the Applicant u/s 21 of the Delhi Police Act, 1978 vide Memo dated 09.12.2009. In Kundan Lal Vs. Delhi Administration (1976 Lab.IC 811), the Honble High Court of Delhi held that unexplained delay in issuing charge sheet amounts to denial of reasonable opportunity for defence and the order of the disciplinary authority is liable to be quashed on that ground alone. Same is the principle held by the Apex Case in the case of State of M.P. Vs. Bani Singh and Another 1990 Supp. SCC 738, State of A.P. Vs. N. Radhakishan JT 1998 (3) SCC 123, P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SC 636 and M.V. Bijlani Vs. Union of India 2006 (5) SCC 88. In the present case the prejudice caused to the Applicant due to unexplained delay in initiating the disciplinary proceedings is writ large on the face of it. Again, we consider that there is merit in the contention of the Applicants counsel that there is no evidence against the Applicant. Except PW-2 SI Ranjan Kumar Singh, all others were formal witnesses. They do not say anything about the charge against the Applicant. PW-2 was the Investigating Officer in both FIR 36/2002 and FIR 37/2002 and he is an interested witness. According to him, he met the complainant Shri Balbir Singh. He recorded his statement. He also arrested the accused Shri Sunil Gupta. Further, according to PW-2 he arrested the Applicant who disclosed and helped to recover the two cheques issued in favour of Shri Balbir Singh. However, Shri Sunil Gupta himself has stated before the Enquiry Officer that he gave the cheques to Shri Balbir Singh and not to the Applicant. It is a well settled law that there should be some credible evidence in the departmental enquiry to prove the charge. They should also be legally admissible. The only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the Applicant before PW-2 which is not sufficient. The examination and cross-examination of Shri Balbir Singh and Shri Vinod Kumar only would have revealed whether the Applicants alleged involvement was there or not. We, therefore, do not find any credible evidence to support the charge against the Applicant. As the Enquiry Officer has held that the charge against the Applicant was proved in spite of the above position, we can treat the said report only as perverse.
17. According to PW-2, he has seized the suicide note of Shri Bablbir Singh and produced it as Exhibit PW-2/C. It is a well settled principle that mere tendering a document is not sufficient in a departmental proceeding. The contents of the documentary evidence have to be proved by examining the witness. As held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 without examining and cross-examining the witness, his statement cannot be taken into consideration. Again as held by the Apex Court in the said judgment, the confessional statement alleged to have been made by the Applicant before the Police Officer is also not sufficient to prove the charge. Further, as held by the Apex Court in Hardwari Lal Vs. State of U.P. & Others 1999 (8) SCC 582, in the absence of other material evidence it is not sufficient to come to the conclusion arrived at by the Enquiry Officer. Failure to examine the material witnesses Shri Balbir Singh and Shri Vinod Kumar is a serious flaw in the entire enquiry proceedings. The Enquiry Officer, while discharging his function as a quasi-judicial authority must have arrived at his conclusion only after analysing the documents and holding that there had been a preponderance of probability to prove the charges on the basis of some admissible and credible evidence. We are, therefore, of the considered view that the Enquiry Officers report is perverse and it has to be rejected as the same is based on no evidence against the Applicant to substantiate the allegations made against him. The Disciplinary Authoritys order and the Appellate Authoritys order based on the said enquiry report also cannot be sustained.
18. In view of the above position, the OA is allowed. Consequently, the impugned order dated 09.12.2009 whereby a departmental enquiry was initiated against the Applicant in respect of the allegation in FIR 37/02 dated 10.01.2002 u/s 306/420 IPC PS Paharganj, Delhi, the order of Disciplinary Authority dated 03.06.2011 whereby the extreme punishment, i.e., dismissal from service is imposed upon the Applicant and the order dated 16.11.2011 whereby the appeal of the Applicant against the order of dismissal from service is rejected by the Appellate Authority thus causing great prejudice to the Applicant are quashed and set aside. Further, it is directed that the Respondents shall reinstate the Applicant back in service immediately with all consequential benefits except back wages. The Respondents shall also pass appropriate orders in compliance of the aforesaid directions within a period of one month from the date of receipt of a copy of this order.
19. There shall be no order as to costs.
7. Respondents in their reply have submitted that the present case is an off-shoot of the CBI investigation in the case No.RC AC I 2004 A 0001 registered against the Applicant wherein he was found in possession of assets which were disproportionate to his known sources of income by approximately Rs.29 lakh. Sanction for his prosecution has already been accorded vide order No.11/2008 dated 30.08.2008. Simultaneously, RDA for major penalty proceedings was also initiated against him vide Charge Memo No.42/2008 dated 30.08.2008 for failing to inform about the cheques/DDs received as gifts by his family members in violation of the provisions of Rule 13 of the CCS (Conduct) Rules, 1964. The Applicant has preferred this OA challenging the aforesaid Charge Memo. They have also submitted that this OA is not maintainable as the same is without any cause of action inasmuch as it is trite law that issuance of notice/memorandum, no final order may be construed. The challenge to the charge sheet and subsequent inquiry is regulated and governed by a complete set of rules and instructions and the Applicant will have abundant opportunity of defence and, therefore, this Tribunal may not like to grant the relief while exercising the power of judicial review. They have also placed reliance on the law laid down by the Apex Court in Union of India and Another Vs. Ashok Kacker 1995 (Supp.1) SCC 180, Union of India Vs. Upender Singh JT 1994 (1) SC 658, Union of India Vs. Kunit Setty Satyanarayana 2007 (1) SCT 452, State of Punjab and Others Vs. Ajit Singh 1997 (11) SCC 368 and DIG of Police Vs. K. Swaminathan 1996 (11) SCC 498.
8. They have further submitted that delay occurred in issuing the charge sheet to the Applicant is neither willful nor deliberate. They have also stated that they have not condoned the alleged omission and commission on the part of the Applicant. Moreover, the Applicant has not been able to prove any prejudice caused to him due to the delay. The Applicant is, rather required to prove the prejudice, if any, on account of such time consumed before the Inquiry Officer and not before this Tribunal at the threshold of the proceedings. In this regard they have placed reliance on the law laid down by the Apex Court in State of A.P. and Others vs. Appala Swamy 2007(1) SCALE 1 and Honble High Court of Delhi in MCD Vs. R.V. Bansal 2006 (130) DLT 235.
9. We have heard the learned counsel for the Applicant Shri Sachin Chauhan and the learned counsel for the Respondents Shri R.V. Sinha. Admittedly, the charge against the Applicant is that while he was working in different capacities in Customs and Central Excise Department during the period from 01.01.1987 to 01.03.2004, had received gifts in the name of his family members, i.e., wife, children and Yuvraj Yashash Gupta (HUF). The Respondents issued the aforesaid charge sheet after several years ranging from 4 to 23 years after occurrence of the alleged incidents. Moreover, they have chosen to issue the Articles of Charge just one day before the date of superannuation of the Applicant. Even after issuing the charge sheet, the Disciplinary Authority did not bother to bring it to its logical conclusion. It was only after the Applicant has filed this OA, the Disciplinary Authority has just woken up from its slumber and appointed the Enquiry Officer and the Presenting Officer. As rightly argued by the learned counsel for the Applicant, there is inordinate and unexplained delay not only in initiating the disciplinary proceedings against the Applicant and in also holding the enquiry and bring it to a logical conclusion. As far as prejudice caused to the Applicant is concerned, it is seen that the Applicant being a retired employee has been deprived of the DCRG and other retirement benefits for all these over five years.
10. In fact the conduct of the Disciplinary Authority shows that it was not at all interested in holding the enquiry but it was interested only to keep the Applicant under the cloud of disciplinary proceedings thereby denying him his retirement dues. While 39 documents are listed along with the Articles of Charge to sustain them, the Disciplinary Authority failed to list even a single witness to prove the charge against the Applicant. It is a well settled position of law that unless the charge is proved in the disciplinary proceedings, giving an opportunity to the delinquent employee to cross-examine the witnesses, the enquiry cannot be held as proved. As held by the High Court in the case of Hari Singh (supra) that mere tendering of documents is not sufficient but they have to be proved during the enquiry. Further, as held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 without examining and cross-examining the witness, his statement cannot be taken into consideration.
11. In the above facts and circumstances of the case, we allow this Original Application. Consequently, the impugned Annexure A-I Memorandum dated 30.10.2008 is quashed and set aside. Further, the Respondents are directed to release all the withheld terminal/pensionary benefits to the Applicant with interest at GPF rate till the entire arrears are paid to him. He is also entitled for his regular pension w.e.f. the date of superannuation, i.e., 31.10.2008. The aforesaid direction shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
12. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh