Central Administrative Tribunal - Delhi
Rajendra Chaudhari vs National Buildings Construction ... on 15 December, 2023
1
O.A. No. 1080/2023
Item No. 34 (C-2)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1080/2023
M.A. No. 1343/2023
This the 15th Day of December, 2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Tarun Shridhar, Member (A)
Rajendra Chaudhari
S/o Lt. Sh. Ram Sharan Chaudhari,
R/o : C-602, Chitrakoot Dham,
Plot No. 2, Sector-19, Dwarka, Delhi - 110075
....Applicant
(By Advocate : Mr. Sanjay Ghosh, Sr. Advocate with Mr.
Harshit Jain, Mr. Rohan Mandal, Ms. Abha Sinha, Mr.
Shoaib Ansari and Dr. S.K. Yadav)
VERSUS
1. Union of India
Through its Secretary
Ministry of Housing and Urban Affairs,
At : Nirman Bhawan, C-Wing, Rajpath Area,
Central Secretariat, New Delhi - 110011
2. NBCC (India) Limited
Through its Chairman / Managing Director,
At NBCC Bhawan, Lodhi Road, New Delhi - 110003
3. Central Vigilance Commission,
Through Chief Vigilance Commissioner,
At : A-Block, GPO Complex, Satarkata Bhavan,
INA, New Delhi - 110023.
.... RESPONDENTS
[By Advocate : Mr. R.S. Rana for R-1, Mr. Soumyajit Pani
with Mr. Aishwarya Bajpai, Mr. Ajay Pandey, Manager
(NBCC)]
2
O.A. No. 1080/2023
Item No. 34 (C-2)
ORDER (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) The applicant holds the position of Senior Executive Director in the National Buildings Construction Corporation Ltd. (NBCC). During his posting as Director (Commercial), he was subjected to disciplinary proceedings under Rule 8 of the NBCC (Discipline & Appeal) Rules, 1993 vide a memorandum dated 26.04.2021. The said memorandum contained two articles of charges against him. In accordance with the provisions of the NBCC (Discipline & Appeal) Rules, 1993, an inquiry was conducted by the Inquiry Officer (I.O.) appointed by the disciplinary authority, who submitted his report on 28.04.2022. However, the disciplinary authority vide an order dated 06.01.2023 directed that the inquiry may be conducted "from the scratch". The reasons given by the disciplinary authority in the said orders are that on account of certain additional documents and a report of IIT, further collaborated by the advice of the CVC "additional lapses" on the part of the applicant, who 3 O.A. No. 1080/2023 Item No. 34 (C-2) was the charged official, had come to notice and taking into account these facts and circumstances, a consolidated inquiry be conducted into fresh charges along with the charges already leveled in the first memorandum. A supplementary charge-sheet was also served upon him, which contained another two charges. The entire dossier, including the Inquiry Report and the associated correspondence, was returned to the I.O. with the direction to conduct the inquiry "from the scratch" taking into account the charges contained in the memorandum dated 26.04.2021 as well as the memorandum dated 26.09.2022, which contained a supplementary charge-sheet.
2. Aggrieved by this action of the respondents, the applicant has preferred this Original Application seeking the following relief(s):-
"i. Quash the order dated 06.01.2023 passed by the Respondent no.1 & 2 consequently quashing the initiation of fresh inquiry from scratch on the charge- sheets dated 26.4.2021 & 26.09.2022 in the interest of justice.
ii. Quash the charge-sheets dated 26.04.2021 & 26.9.2022 being not maintainable and no charge is 4 O.A. No. 1080/2023 Item No. 34 (C-2) made out against the applicant in the given facts and circumstances of the present case in the interest of justice.
iiii. Direct the Respondent no.1 & 2 to supply the copy of the Inquiry report of the enquiry officer dated 28.04.2022 on the charge-sheet/memorandum dated 26.04.2021 in the interest of justice; iv. Award costs of this proceedings in favor of the Applicant;
v. Pass any other such further order/orders as this Hon'ble Court may deems fit and proper in the given facts and circumstances of the present case."
3. Mr. Sanjoy Ghosh, learned Senior Advocate appearing on behalf of the applicant, briefly narrating the history and background of the case submits that the order dated 06.01.2023 vide which inquiry "from scratch" has been ordered along with a supplementary charge-sheet is in contravention to the statutory provisions governing disciplinary proceedings as set forth in NBCC (Discipline & Appeal) Rules, 1993. He draws attention to Rule 9 which outlines the steps which are to be taken by the Disciplinary Authority after the I.O. has submitted the report of the inquiry. For the sake of clarity, the said Rule 9 is reproduced below :-
9. ACTION ON THE INQUIRY REPORT 5 O.A. No. 1080/2023 Item No. 34 (C-2) (1) [The disciplinary authority, if it is not itself the inquiry authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for fresh or further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provision of Rule-8 as far as may be.
1-A. The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiriing authority to the employee concerned who shall be required to submit, if he so desired, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the employees concerned.
1-B. The disciplinary authority shall consider the representation, if any, submitted by the employee concerned before proceeding further in the manner specified in sub rules (2) to (4).
(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for purpose.
(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion, that any of the penalties specified in clauses
(a) to (e) of Rule-7 should be imposed on the employee it shall, notwithstanding anything contained in Rule-10, make an order imposing such penalty.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, and on the basis of evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (f) to (i) of Rule 7 should be imposed on the employees, it shall make an order imposing such penalty and it shall not be necessary to give the employee any opportunity of making representation on the penalty proposed to be imposed.
6O.A. No. 1080/2023 Item No. 34 (C-2) (5) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned.]"
4. He argues that no doubt the Disciplinary Authority enjoys the power and authority to remit the case to the I.O. for fresh or further inquiry and thereafter the I.O. is obliged to proceed further to hold fresh or further inquiry, however, this power does not extend to issuance of a fresh or a supplementary charge-sheet. What the respondents have done by way of the impugned order is an amendment/modification of the charge-sheet against the applicant which is beyond the powers conferred upon them under the relevant rules. He further argues that the Rules also cast an obligation upon the Disciplinary Authority to communicate the report of the inquiry to the charged official and proceed for any further action only after obtaining the reply/representation of the said official. In case the advice of the CVC/CVO has been obtained, there is a further obligation to share such advice too with the charged official and obtain his 7 O.A. No. 1080/2023 Item No. 34 (C-2) comments/representation before passing any orders in the matter.
5. In the instant case, not only has the Disciplinary Authority issued a supplementary charge-sheet which could not have been done as there is no such provision in the Rules, even further or a fresh inquiry could not have been ordered until and unless the inquiry report was shared with the charged official, i.e, the present applicant and his response thereto obtained. He has further submitted that the two charges contained in the supplementary charge-sheet are identical to the charges initially issued and go on to elaborate the allegation already served upon the applicant and upon which a detailed inquiry had been done. Such de-novo exercise is not permissible, and, he reiterates that the only power the Disciplinary Authority enjoys is fresh or further inquiry and certainly not an additional or supplementary charge-sheet.
6. Learned counsel for the respondents has strongly contested the averments made in the Original Application as argued by the learned counsel for the 8 O.A. No. 1080/2023 Item No. 34 (C-2) applicant. At the outset, he draws attention to the facts which have been narrated and detailed in the counter reply pointing out that the charges against the applicant pertain to serious financial irregularities running into crores of rupees involving huge loss of public money.
7. Learned counsel draws attention to the vigilance manual of the CVC and submits that para 7.20.2 unambiguously states that amendment to the charge- sheet is permissible, however, while doing so, a fresh opportunity is required to be given to the charged official in respect of amended and supplementary charge-sheet. He submits that the Disciplinary Authority has adhered to this provision in letter and spirit and the order which is impugned, in fact, gives precisely this opportunity to the charged official to respond appropriately to the supplementary charge- sheet. He further argues that this provision of the Vigilance Manual read with Rule 9 would clarify the issue beyond doubt that the Disciplinary Authority enjoys vast powers for ordering a fresh or further 9 O.A. No. 1080/2023 Item No. 34 (C-2) inquiry after issuing an amended or a supplementary charge-sheet. Para 7.20.2 of the Vigilance Manual reads as under:-
"7.20.2 During the course of Inquiry, if it is found necessary to amend the charge sheet, it is permissible for the DA to do so, provided a fresh opportunity is given to the CO in respect of the amended / supplementary chargesheet. The Inquiring Authority may hold the inquiry again from the stage considered necessary so that the CO should have a reasonable opportunity to submit his defence or produce his witness in respect of the amended charge sheet. If there is, however, a major change in charge-sheet, it would be desirable to hold fresh proceedings on the basis of amended charge-sheet." [
8. Learned counsel argues that inquiry does not culminate merely at the time of submission of the report. The completion of the inquiry is only after acceptance or rejection of the inquiry report and thereafter passing of appropriate orders thereon. Submission of the inquiry report is only one of the interim stages in the disciplinary proceedings. Therefore, there could be no ambiguity with respect to the powers which the Disciplinary Authority enjoys in terms of para 7.20.2 of the Vigilance Manual which has been reproduced in the preceding paragraph. 10 O.A. No. 1080/2023 Item No. 34 (C-2)
9. We have heard the arguments put forth by the learned counsels for the parties. We have also meticulously gone through the voluminous documents on record. We have also considered the preliminary objection made by the respondents in their counter reply that it would not be permissible for the courts to examine the merits of the charges as that is solely the prerogative of the I.O. and Disciplinary Authority.
10. In our considered view, at this stage, based upon the arguments put forth by the parties, the issue for consideration is whether the statutory rules governing disciplinary proceedings have been adhered to or not. The arguments put forth by the learned counsel for the applicant also centre around this issue. We have quoted the relevant provisions of Rule 9 and the provisions contained in para 7.20.2 of the Vigilance Manual above. In addition to that, we would also like to record the provisions contained in Rule 8 (19) (i) and (ii) of NBCC (Discipline and Appeal Rules, 1993 as we consider them to be of relevance to the issue at hand.
"8. PROCEDURE FOR IMPOSING MAJOR PENALTIES 11 O.A. No. 1080/2023 Item No. 34 (C-2)
19) (i) After the conclusion of the inquiry, report shall be prepared and it shall contain;
(a) A gist of the articles of charge and the statement of the imputations of misconduct or misbehavior.
(b) A gist of the defence of the employee in respect of each article of charge.
(c) An assessment of the evidence in respect of each article of charge.
(d) The findings of each article of charge and the reasons therefor.
EXPLANATION :
If in the opinion of the inquiring authority the proceedings of the inquiry establish any articles of charge different from the original articles of the charge, it may record its findings on such article of charge. Provided that the findings on such articles of charge shall not be recorded unless the employee has either admitted the facts on which such articles of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The inquiring authority, where it is not itself the disciplinary authority shall forward to the disciplinary authority the records of inquiry which shall include :
(a) The report of the inquiry prepared by it under sub-
clause (i) above.
(b) The written statement of defence, if any, submitted by the employee referred to in such-rule (13).
(c) The oral and documentary evidence produced in the course of the inquiry.
d) Written briefs referred to in sub-rule 916) if any; and
(e) The orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.
12O.A. No. 1080/2023 Item No. 34 (C-2)
11. In fact all these provisions in the NBCC (Discipline and Appeal) Rules have been framed following the provisions of CCS (CCA) Rules. It would also be appropriate for a holistic understanding of the issue to reproduce verbatim the impugned order dated 06.01.2023:-
"ORDER Whereas an inquiry under Rule 8 of the NBCC (Discipline & Appeal), Rules 1993 is being held against Shri Rajendra Chaudhari, the then Director (Commercial), NBCC, now Sr. ED, NBCC, for his lapses in "Construction of Group Housing Residential Apartments, namely, NBCC Green View at Sector 37-D Gurugram, Haryana".
Whereas vide Order No. C-14019/1/2020-O/o US (AV-I), the Disciplinary Authority (DA) appointed Shri Vij. SDG (Retired), CPWD as Inquiring Authority to inquire into the charges against Shri Rajendra Chaudhari, Director (Commercial), NBCC and Shri Anil Yadav, General Manager (Engg.), NBCC as the Presenting Officer to present the case on behalf of the DA.
Whereas vide letter dated 28.4.2022, the Inquiring Authority submitted the inquiry report for consideration of the DA. The Inquiry report was not accepted by the DA as further investigation into the case after receipt of the report of IIT, Delhi has revealed some additional lapses on the part of the CO, Shri Rajendra Chaudhari.
And whereas the DA decided to serve supplementary charge-sheet to the CO, Shri Rajendra Chaudhary for his additional lapses after seeking advice of CVC and have a consolidated inquiry report taking into account he charges of both charge-sheets, i.e., the earlier charge-sheet dated 26.04.2021 and 13 O.A. No. 1080/2023 Item No. 34 (C-2) those contained in supplementary charge-sheet. Vide Memorandum dated 26.09.2022, the supplementary charge-sheet was served to the CO, Shri Rajendra Chaudhari in continuation of earlier charge-sheet dated 26.04.2021.
Now, thereafter, the Inquiring Authority is hereby directed to conduct the inquiry from the scratch taking into account the charges contained in Memorandum dated 26.04.2021 as well as Memorandum dated 26.09.2022 and submit a consolidated inquiry report for consideration of the DA. The inquiry report of the IA along with the following documents/files attached therewith is returned in original:
(i) A file containing Inquiry Report
(ii) General correspondence file (Pages 1 to 71)
which includes Examination, Cross
examination of prosecution witnesses, Examination of CO by IO and Examination of PW1 by IO and Date Order Sheets.
(iii) CO's brief and PO's brief.
(iv) Prosecution documents and Defence documents, i.e., P1, P2, P3, D1, D2, PD1 & PDs.
By Order and in the name of the President."
12. We have heard the learned counsel for the parties at great length on more than one occasion, besides carefully going through the voluminous pleadings on record. If this is not enough, both the learned counsels have also submitted written submissions. A perusal of written submissions indicates that to a great extent, 14 O.A. No. 1080/2023 Item No. 34 (C-2) these are rather a replication of the oral arguments which have been put before us. In addition, learned counsel for the respondents has also drawn our attention to a memorandum of the Central Pay Commission indicating the various timelines/schedule etc. to be adhered to in disciplinary proceedings. We have taken note of the same.
13. Both the oral and written submissions by the learned counsel for the respondents elaborate the charges against the applicant and the merits of the same. But we have consciously not touched upon them for the reasons we are going to record below. The entire argument put forth on behalf of the applicant hinges upon the relevant rules governing disciplinary proceedings and the learned counsel for the applicant has emphatically argued that on account of gross contravention of the statutory provision of rules, the entire disciplinary proceedings are vitiated ab initio.
14. Therefore, at this stage, little purpose would be served in dwelling upon the merits of the charges 15 O.A. No. 1080/2023 Item No. 34 (C-2) against the applicant or upon the findings of the Inquiry Officer. We have quoted the relevant rules verbatim extensively in the preceding paragraphs of this order.
15. Admittedly, the Inquiry Officer had conducted the inquiry into the charges which were framed against the applicant and submitted his report to the disciplinary authority. Rule 9 of the National Buildings Construction Corporation (NBCC) Discipline and Appeal Rules, 1993, deals with the action which the disciplinary authority is obliged to initiate pursuant to the receipt of the inquiry report. This provision is identical to the relevant provision in CCS (CCA) Rules. In fact, by and large, the NBCC Discipline and Appeal Rules are a mirror image of the CCS (CCA) Rules in terms of the main provisions. There is no ambiguity as far as the provisions of Rule 9 are concerned. On receipt of the inquiry report, the disciplinary authority is supposed to forward a copy of the inquiry report to the employee concerned, who is offered liberty to submit a written representation or submission to the disciplinary authority within a period of 15 days 16 O.A. No. 1080/2023 Item No. 34 (C-2) thereafter. After this opportunity is afforded and if any representation is received, the disciplinary authority shall pass an appropriate order after considering the report and the representation so furnished.
16. Rule 9 further stipulates that the report of the inquiry is to be furnished to the employee irrespective of the fact whether it is favourable or not to the employee concerned. Rule 9 is to be read along with Rule 11 of the said rules and Rule 11 stipulates that the order made by the disciplinary authority shall be communicated to the employee concerned.
17. It is not in dispute that this procedure has not been adopted in the present case. The issue before us is whether the disciplinary authority has correctly interpreted the Rule by issuing the impugned memorandum whereby further inquiry along with the supplementary charge-sheet has been issued or not. Before proceeding further, it would be pertinent to read Rule 8 of the said rules once again; this Rule has been reproduced verbatim in one of the preceding paragraphs. Rule 8 provides that after conclusion of 17 O.A. No. 1080/2023 Item No. 34 (C-2) the inquiry, a report shall be prepared which shall contain the following :
(a) Gist of articles of charges and statement of imputation;
(b) Gist of defence;
(c) Assessment of evidence &
(d) Finding on each article of charge and reasons
thereof.
18. In the instant matter, we do not know whether this has been done or not because the inquiry report submitted by the Inquiry Officer has not been shared with anyone, including the applicant who should have been the first person to have been served the said report after perusal of the disciplinary authority.
19. We do appreciate that the learned counsel for the respondents has drawn our attention to the relevant provisions of the vigilance manual which authorize and empower the disciplinary authority to amend the charge sheet or issue a supplementary charge sheet.
With respect to the contention that a fresh opportunity is to be given to the charged official, he has correctly argued that such an opportunity has been afforded to 18 O.A. No. 1080/2023 Item No. 34 (C-2) the applicant who was the charged official, by serving a copy of the supplementary charge-sheet upon him and also communicating the intention of the disciplinary authority to conduct fresh inquiry into the earlier charges.
20. Now, the relevant provisions of the vigilance manual relied upon by the learned counsel has been reproduced below :
"During the course of Inquiry, if it is found necessary to amend the charge sheet, it is permissible for the DA to do so, provided a fresh opportunity is given to the CO in respect of the amended / supplementary charge sheet. The Inquiring Authority may hold the inquiry again from the stage considered necessary so that the CO should have a reasonable opportunity to submit his defence or produce his witness in respect of the amended charge sheet. If there is, however, a major change in charge-sheet, it would be desirable to hold fresh proceedings on the basis of amended charge- sheet"
21. No matter how many times we read, we do not find any provision in the said para which authorizes the disciplinary authority to issue a supplementary or fresh charge-sheet after the inquiry is over and when 19 O.A. No. 1080/2023 Item No. 34 (C-2) the Inquiry Officer has already submitted his inquiry report. The language of the said paragraph is unambiguous and it states that the amended or supplementary charge-sheet can be issued only "during the course of inquiry" and that too if it is found necessary to amend the charge-sheet.
22. Learned counsel has interpreted this provision by stating that inquiry is considered to be complete only after that disciplinary authority has passed appropriate orders thereupon. We emphatically hold that we cannot agree with this interpretation. We do recognize that disciplinary proceedings would culminate once the disciplinary authority has passed the order, but as far as inquiry is concerned and also, so far as the role of Inquiry Officer is concerned, the same is over once the report is submitted, as at that stage the disciplinary authority will assume its role. There is no ambiguity in the provisions of the rules which have been quoted in one of the preceding paragraphs. In nutshell, the only power which the disciplinary authority enjoys was to direct the Inquiry Officer to conduct "further" inquiry 20 O.A. No. 1080/2023 Item No. 34 (C-2) and 'further' can definitely not be interpreted as a fresh "de novo inquiry".
23. We have deliberately kept the term "de novo inquiry" in " " because the learned counsel has argued that vide the impugned memorandum, what the disciplinary authority seeks is only further inquiry in terms of the powers enjoyed by him under the rules and the supplementary charge-sheet is permissible in terms of the provisions of the vigilance manual. But when we read the impugned memorandum, we find that what the disciplinary authority orders is inquiry "from the scratch". This is surely beyond the purview of the powers enjoyed by the disciplinary authority under the NBCC Discipline and Appeal Rules.
24. In view of what has been elaborately discussed and detailed above, we have no hesitation in holding that the statutory provisions of the NBCC Discipline and Appeal Rules have been compromised at every stage and hence, the proceedings stand vitiated ab initio. Further, the disciplinary authority, in issuing the supplementary charge sheet dated 26.09.2022, has exercised jurisdiction not vested in him. 21 O.A. No. 1080/2023 Item No. 34 (C-2)
25. Curiously, the supplementary charge memorandum dated 26/9/2022 was served upon the applicant on 16.01.2023, that is, after a gap of more than 3 months. The impugned memorandum vide which it was served i.e. 06.01.2023 mentions that inquiry report was not accepted by the disciplinary authority as further investigation into the case was required and there were some additional lapses on the part of the charged official. If there were some additional lapses, they could always have formed the part of separate proceedings, but could not be included in the ongoing proceedings as this would vitiate them.
26. The action of the disciplinary authority being unsustainable in terms of the relevant rules are hereby quashed and set aside. To clarify, while allowing the OA, we quash and set aside, the memorandum dated 06.01.2023, the orders dated 26.09.2022 and the initial charge sheet dated 26.04.2021 which has been amended vide the later memorandum of 06.01.2023 along with the charge memorandum dated 26.09.2022. 22 O.A. No. 1080/2023 Item No. 34 (C-2)
27. We clarify that since the original charge-sheet of 26.04.2021, which had been inquired into and an inquiry report too was submitted, has been amended by way of a supplementary charge-sheet, the same also cannot be sustained at this stage. Accordingly, the entire proceedings stand quashed and set aside.
28. The OA stands allowed against the background of the aforesaid directions.
29. Since we have quashed and set aside the entire disciplinary proceedings on the ground of non- adherence to the provisions of the Rules and have not dwelt upon any of the merits, the respondents are at liberty to act in accordance with the law.
30. Pending MA, if any, stands disposed of accordingly.
There shall be no orders as to costs.
(Tarun Shridhar) (R.N. Singh)
Member (A) Member (J)
/NISHA/