Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Union Of India on 26 March, 2015
Central Administrative Tribunal Principal Bench OA No. 2477/2013 Order Reserved on: 07.11.2014 Order Pronounced on:26.03.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Dr. Madhup Mohta, Director, M.E.A., A-108, Shivalik, Sector 35, NOIDA-201301 -Applicant (By Advocate: Shri Naresh Kumar Sharma for Sh. Raj Kumar Sherawat) VERSUS 1. Union of India, Through its Foreign Secretary, Ministry of External Affairs, South Block, New Delhi 2. Joint Secretary (CNV), Ministry of External Affairs, South Block, New Delhi -Respondents (By Advocate: Shri Rajinder Nischal) O R D E R Dr. B.K. Sinha, Member (A):
The instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against the charge-sheet dated 08.11.2012 relating to the proposed inquiry and the memorandum dated 19.02.2013 passed by the respondents rejecting the representation of the applicant dated 31.01.2013 providing him final opportunity to submit his written defence within a period of 10 days from the date of afore memorandum.
2. The applicant vide this OA has prayed for the following reliefs:-
a. quash/set aside the charge-sheet/charge memorandum dated 08.11.2012 issued by the respondents and also subsequent inquiry proceedings of MEA File No.Q/Vig/843/02/2010 including memorandum No.Q/Vig./843/02/2010 dated 19.02.2013;
b. allow the cost of litigation;
c. pass any other or further order which this Honble Court may deem fit and proper in the facts and circumstances of this case.
3. The case of the applicant, briefly, stated is that he is an Indian Foreign Service Officer of 1985 Batch and all his batch mates have already been elevated to the post of Ambassador/High Commissioner in various countries. The applicant also claims to be a writer, poet and scholar of international fame having authored various internationally acclaimed books, poems etc..
4. On 20.05.2002, the applicant was posted as Director, ICCR, on deputation from Indian Foreign Services vide Office Order dated 20.05.2005 of the respondent organization.
5. It is the claim of the applicant that he had not been assigned any financial or administrative powers in the ICCR. Subsequently one S.M. Matloob filed a Writ Petition bearing no. 2463/2006 before Honble High Court seeking mandamus to CBI to register a case against the persons responsible, including the then President of ICCR, who had got her photograph morphed with that of late Maulana Abul Kalm Azad, a veteran freedom fighter, in a book titled Journey of a Legend on Maulana Abul Kalam Azad published by ICCR.
6. The applicant alleges that the purpose of this photograph getting morphed was to create a political legacy for the President of ICCR, namely, Najma Heptulla. The said S.M. Matloob, a self-proclaimed whistle blower made further allegations relating to corruption in the respondent organization. The CBI appeared before the Honble High Court of Delhi and apprised the court that they were already investigating the issues which were subject matter of the writ petition under consideration.
7. On 23.06.2008, the CBI registered an FIR bearing No. RC-DAI-2008-A-0022 under section 120-B read with section 420 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. It was alleged in the FIR that one Rakesh Kumar, the then Director General, ICCR and the applicant, the then Director, ICCR, New Delhi, entered into a criminal conspiracy with each other and also with a private firm while awarding two projects under the multimedia head, by abusing their official position as public servants, either by corrupt or illegal means by giving the work without following the tender procedures prescribed. The two accused officers awarded the contract in respect of two projects, namely (i) the Promotional Audio-Visual Clips for Websites for India on theatres of India and (ii) promotional Audio-Visual Clips for websites on folk and classical dances, both at a cost of Rs. 9 lakhs each to co-conspirator, one M/s. Anju Visuals New Delhi on 30.03.2005 on the basis of false and forged quotations managed by the accused persons.
8. The inquiry revealed that no cost estimates as warranted under the procedure prescribed was prepared for executing the aforementioned project nor were open tenders invited through the advertisements as it has been required under the GFR Rules. The work has been decided on the basis of the 3 quotations received from three firms, namely, M/s Panalink Infotech, K-128, Ranjit Sadan, Mohammad Pur, Bhikaji Cama Place, New Delhi vide quotation dated 14.03.2005, M/s Anju Visuals, F-1183, Chittaranjan Park near Market No.2, New Delhi-110019 vide quotation dated 21.03.2005 and M/s Vans Media Services Pvt. Ltd., 234, Defence Colony, Flyover Complex, New Delhi-110024 vide quotations dated 15.03.2005. The quotations were called by the applicant vide his letter dated 10.03.2005 addressed to the three firms.
9. The inquiry further brought to light that the work consisted of converting the tapes of various programmes available in the ICCR Library into Internet Ready Format, i.e., in the digitalized data and that M/s Anju Visuals, an Audio & Video Studio owned by one Deepak Gulati which quoted the rate as Rs.15,000 per capsule was awarded the work. The total cost of the project in the budget was shown to be Rs.9 lakhs. However, a total payment of Rs.10,90,980 was made to the party. The other two firms which submitted their quotations were M/s Panalink InfoTech at Rs.19,500 per capsule and M/s Vans Media Services Pvt. Ltd. at Rs. 18,000 per capsule. All the quotations were received by the applicant and handed over in open state to one Ms. Meenakshi Mishra, Programme Director, who prepared a comparative statement on 30.03.2008 on the direction of the applicant. The work was awarded to the co-conspirator M/s Anju Visuals by the said Rakesh Kumar on the recommendation of the applicant.
10. It is the case of the applicant that the CBI after investigation failed to find any criminality in the allegations in the FIR and filed a closure report before the CBI court. However, contrary to the facts, the CBI while filing closure report, recommended departmental action against the said Rakesh Kumar and the applicant. Since the said Rakesh Kumar, the former Director General of the respondent organization had already superannuated, no proceedings were initiated against him.
11. The applicant further submits that the CBI had registered another case bearing RC No. DAI-2008-A-0021 dated 23.06.2008 pursuant to the writ petition and filed charge-sheet against the said Rakesh Kumar and the applicant. The CBI court having heard the parties on the charge, returned a finding vide order dated 30.11.2011 that the CBI had not taken prior approval under mandatory section 6-A(I)(b) of Delhi Special Police Establishment Act, (DSPE Act, for short) and directed CBI to approach the Central Government to seek approval for investigation against the said Rakesh Kumar (A-1) and the applicant (A-2). The special CBI court was further pleased to direct that in the case, the approval was recorded, the matter was to be reinvestigated as per mandate of law. The special CBI court finding that the investigation had been made without prior approval of the competent authority, held the departmental proceedings conducted by the CBI as illegal and non est.
12. The applicant submits that the FIR No.RC-DAI-2008-A-0022 was also registered in violation of mandatory provisions of 6-A(I)(B) of DSPE Act. Therefore, the CBI has committed gross error of law while investigating the case against the applicant and thereafter recommending departmental proceedings against him is in gross violation of mandatory provision of law and principles of natural justice and therefore, the recommendation of CBI is illegal and non est.
13. It is the contention of the applicant that the Ministry of External Affairs, through its Joint Secretary (CNB) issued a charge-sheet/charge memorandum dated 08.11.2012 containing two charges, which are subject matter of aforesaid FIR No. RC-DAI-2008-A-0022. On 19.11.2012, the MEA issued an order thereby appointing one Gautam Bambawala, Jt. Secretary (EA), Ministry of External Affairs as inquiring authority to inquire into charges framed against the applicant. One Viraj Singh, Director (Projects), MEA was appointed as presenting officer by afore order dated 19.11.2012. On 21.12.2012, the applicant submitted a representation seeking quashing of the departmental proceeding to the Honble Minister, MEA and Honble Minister of Law & Justice. On 31.01.2013, the applicant sent another representation to the Foreign Secretary stating therein that CBI had not taken approval of Central Government under 6-A(1)(B) of DSPE Act and proposed inquiry was therefore bad in law.
14. On 19.02.2013, the applicant was conveyed rejection of his aforementioned representation dated 31.01.2013 and further that protection under Section 6-A(1)(B) of the DSPE Act was not available to him.
15. The applicant thereafter submitted yet another representation to the Foreign Secretary on 25.02.2013 in reference to memorandum dated 19.02.103 issued by Joint Secretary (CNV). The Foreign Secretary was apprised that stand taken by him in rejecting the representation dated 31.01.2013 is contrary to judgment of the courts.
16. On 28.02.2013, the applicant without prejudice to his representation dated 25.02.2013 to Foreign Secretary submitted his statement of defence stating therein that whatever he had done was in discharge of his official duties and on instructions of the competent authority in ICCR, namely Governing Body of ICCR, External Affairs Minister, President-ICCR, FS& Vice President, ICCR and DG (ICCR) in a manner consistent with CCS (Conduct) Rules, 3.2(ii), 3.2(iii) and 3.2 (iv). It is also stated in the reply that the main issue before Delhi High Court in the Writ Petition had been about photo morphing and the applicant has been victimized so as to distract the public and media attention from the main issue. In the meantime, a new inquiry officer was appointed in place of the said Gautam Bambawala to inquire into the matter. The impugned order dated 19.02.2013 passed by the Foreign Secretary, MEA, is illegal in view of the rulings of the CBI court and, therefore, the memorandum dated 25.02.2013 is also illegal and liable to be set aside.
17. The applicant has adopted the following principal grounds in support of his OA:-
(i) In the first place, the applicant being on loan from the ICCR did not have any administrative and financial powers nor was he the competent authority to enter into any contract or to sanction any award of work. Therefore, he could not possibly be held either guilty of commission of any irregularity which might have taken place. All his actions had been taken in pursuance of the decisions of the Governing body of ICCR, EAM, President (ICCR), FS and Vice President (ICCR) and DC and DG (ICCR) in a manner consistent with CCS (Conduct) Rules.
(ii) In the second place, the applicant alleges mala fide stating that the he was the officer who had detected the case of morphing photograph of Dr. Maulana Abul Azad and the evidence against the said Dr. Najma Heptullah had been examined personally by one Pavan Verma, former Director General, ICCR, one Anand Sharma, former Minister of State of External Affairs, Dr. Karan Singh and Dr. Pranab Mukherjee, the former Minister of External Affairs. The applicant alleges that one Shyam Saran, the then Foreign Secretary, with a view to protect Dr. Najma Heptullah, the then President, ICCR, authorized the transfer of file to CBI without approval of the then EAM, Central Bureau of Investigation and also to preempt legal action through a defamation suit. The applicant further alleges that the said Shyam Saran also instructed to transfer him to High Commission of India, London, while he avoided taking action against Dr. Najma Haptullah. The applicant submits that he is an upright officer who is being punished for having done his duty with the purpose to divert the attention of public and media from the photograph morphing case.
(iii) In the third place, the Foreign Secretary had rejected his representation dated 31.1.2013 without proper appreciation of the facts and material. His order is in direct conflict with the order passed by the CBI court and he tried to overreach the court order by giving a different interpretation to Section 6A(1)(B) of DSPE Act.
(iv) In the fourth place, the charge-sheet is a reproduction of the allegations in the FIR registered by CBI which has since been held illegal. Therefore, any action emanating from the same is also illegal and non est.
(v) In the fifth place, there are no direct allegations of any financial misappropriation or bribe taking against the applicant.
(vi) The applicant has also heavily relied upon the decided case of this Tribunal in Neeraj Singh Vs. Union of India (OA No. 3550/2012 decided on 30.05.2013 to contend that a person cannot be proceeded against departmentally if on same set of allegations/charges he is exonerated by the criminal/CBI Court.
18. The respondents have filed a counter affidavit stating that major penalty proceedings were initiated against the applicant vide Charge Memo dated 8.11.2012 on account of the following Articles of Charges:-
ARTICLE I Dr. Madhup Mohta, Director, while functioning as Director (P&C), in the Indian Council for Cultural Relations (ICCR), New Delhi, during the year 2005, colluded with Shri Rakesh Kumar the then DG, ICCR, and also with M/s Anju Visuals, F-1183, Chittaranjan Park, New Delhi with the object to cause undue favour to M/s Anju Visuals, by awarding two contracts viz. (i) Audio-Visual clips for ICCR website on folk dances of India and (ii) Audio-Visual clips for ICCR website on Indian Folk theatres to M/s Anju Visuals, at a total value of Rs.21,81.960/- @ Rs. 10,90,980/- per contract, without following the open tender procedure, for works with value exceeding Rs.5,00 lakhs, as required under the provisions of General Financial Rules, 1963.
By the above act, the said Dr. Madhup Mohta, Director, failed to maintain absolute integrity and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rule 3 (1)(i) and Rule (1)(iii) of CCS (Conduct) Rules, 1964.
ARTICLE-II Dr. Madhup Mohta, Director, while functioning as Director (P&C), in the Indian Council for Cultural Relations (ICCR), New Delhi, vide his letter dated 10.03.2005, obtained a forged and false quotation from M/s Panalink INfotech Limited K-128, Ranjit Sadan, Mohammadur, Bhikaji Cama Place, New Delhi-16, in order to cause undue favour to M/s Anju Visauls by awarding two contracts referred to in Article I, above, to the said firm, and to merely complete the formality of having three quotations on paper.
By the above-act, the said Dr. Madhup Mohta, Director, failed to maintain absolute integrity and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rule 3 (1)(i) and Rule (1)(iii) of CCS (Conduct) Rules, 1964.
19. The respondents further submit that the applicant does not enjoy the protection of Section 6A(1)(b) of DSPE Act, as he is an officer in the rank of Director and thus, the action of the respondents is guided by the inputs received from the DoP&T as also that of legal affairs.
20. It is also the case of the respondents that though no charge-sheet was filed by the CBI in the designated court, departmental proceedings have been initiated against the applicant and the same have been initiated on the basis of appraisal of evidence. In this regard, the degree of proof required in a departmental proceeding is different from that in a criminal case and acquittal in a criminal case does not imply acquittal in departmental proceedings ipso facto as the purpose of the two are different.
21. The respondents submit that no reliance can be placed upon the case of Neeraj Singh (supra), as the facts were different and the department had taken seven years to reach the conclusion that the departmental proceeding should be launched against the applicant in that case.
22. The applicant has submitted rejoinder followed by written synopsis. It is alleged that no misconduct has been committed by the applicant, as he was not having any financial and administrative powers. It is further alleged that the grounds adopted in the OA have not specifically been denied by the respondents. The applicant further alleges that the charge-sheet is arbitrary and in violation of Article 14 of the Constitution.
23. We have carefully examined the pleadings of the parties as also the documents submitted by them and also listened the oral submissions made by their respective counsels. To our mind, the following issues need to be adjudicated in this case:-
(i) What is the scope of judicial intervention in the instant case?
(ii) Whether the case of Neeraj Singh (supra) can be held to be a valid and binding legal precedent to the facts of the instant case?
(iii) What reliefs, if any, can be granted to the applicant?
24. In respect of the first issue, we find that this issue has been examined in a number of decisions by this Tribunal. In the case of K.V.M. Abdunnafih Vs. Union of India (OA No. 2055/2010) decided on 24.12.2014, this very Bench of the Tribunal examined the issue and relying upon the cases of S.R. Tewari Vs. Union Of India & Anr. Vs. R.K. Singh & Anr. 2013 (6) SCC 602, GAIL India Vs. Gujarat State Petroleum Corporation [2014 (1) SCC 329], Arun Kumar Agrawal v. Union of India and others (2013) 7 SCC 1, Bihar State Government Secondary Teacher Association Vs. Bihar State Education Service Association, 2012(11) SCALE 291 and Union of India Vs. Upendra Singh, (1994)3 SCC 357., H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority Kamal Vs. Gopinath and Sons, 1992 Supp.(2) SCC 312, held that the scope of judicial intervention in the departmental proceedings is indeed limited and circumscribed by the pronouncements by the Honble Supreme Court and Honble High Court from time to time. For the sake of greater clarity, paragraph 8 of the decision is being extracted as below:-
8. Insofar as the first of the issues is concerned, it is well settled legal proposition that the principles of natural justice need to be complied with and the employee has to be treated fairly in departmental proceedings which may culminate into imposition of a punishment. However, it is appropriate that the scope of judicial intervention in departmental proceedings be defined at the very outset. The role of judicial intervention in departmental proceedings is indeed limited and circumscribed by pronouncements of Honble Supreme Court and Honble High Courts from time to time. During departmental proceedings, the inquiry officer is face to face with the charged officer and also has the benefit of examination of the documents on which reliance has been placed in the inquiry. He is also a privy to examination of witnesses and their cross-examination as well as proving of the documents adduced as evidence. This benefit is not there either in the appellate court or in tribunal/high courts, which have to rely upon the evidence recorded during the course of departmental proceedings. It is well settled law that the scope of judicial review is limited and is permissible to the extent of finding whether the process in reaching the decision has been observed correctly, and not the decision as such. However, we cannot reappraise the evidence on record and are to confine ourselves to the main issues concerned with the exercise of jurisdiction, namely, whether departmental proceedings are vitiated on account of mala fide or infringement of any statutory provisions relating to conduct of departmental inquiry or proceedings being barred by some gross procedural laches. In case of S.R. Tewari Vs. Union Of India & Anr. Vs. R.K. Singh & Anr. 2013 (6) SCC 602], the Honble Supreme Court has held that where the findings are perverse i.e. they have been arrived at by ignoring and excluding relevant material or taking irrelevant inadmissible material into account, the findings of the inquiry are likely to be set aside. For better illustration, it is apt to quote paras 22 and 24 from the judgment of the Honble Supreme Court in this very case:-
22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala, (2010) 9 SCC 189).
This view has been further supported in GAIL India Vs. Gujarat State Petroleum Corporation [2014 (1) SCC 329]:-
28. In Arun Kumar Agrawal v. Union of India and others (2013) 7 SCC 1, this Court was called upon to consider the scope of judicial review of complex economic decision taken by the State or its instrumentalities. The Government of India, ONGC and Shell entered into a production sharing contract with a private enterprise for exploration and exploitation of crude oil and natural gas in respect of the Rajasthan Block. After due deliberation, the Government of India endorsed the decision taken by ONGC. While refusing to interfere with the decision of the Government, this Court observed:
We notice that ONGC and the Government of India have considered various commercial and technical aspects flowing from the PSC and also its advantages that ONGC would derive if the Cairn and Vedanta deal was approved. This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives. Similar views find echo in the judgments of Honble Supreme Court in Bihar State Government Secondary Teacher Association Vs. Bihar State Education Service Association, 2012(11) SCALE 291 and Union of India Vs. Upendra Singh, (1994)3 SCC 357. In the decision of Upendra Singh (supra), the Honble Supreme Court has emphasized that the Tribunal cannot take over the function of the disciplinary authority. The truth or otherwise of charges is a matter for the disciplinary authority to go into and it has no jurisdiction to go into the truth of the charges or the correctness of the findings recorded by the disciplinary authority or the appellate authority, as the case may be. In the case of H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority Kamal Vs. Gopinath and Sons, 1992 Supp.(2) SCC 312, the Honble Supreme Court reaffirmed that the judicial review is not directed against the decision, but is confined to the decision making process. It cannot extend to the examination of the correctness or reasonableness of the decision as a matter of fact. The purpose of judicial review is to ensure that individual would receive fair treatment, but not test the correctness of the decision taken by the competent authority. It is not an appeal from the decision but rather a review of the manner in which the decision is made. The Honble Supreme Court was, at pains, to dispel the impression that the court sits in judgment not in respect of the correctness of the decision but of the decision making process. It flows from the above that the Honble Supreme Court has drawn a Laxman Rekha, which this Tribunal cannot venture to cross. We, therefore, cannot go into reappraisal of the facts and the evidence adduced before us and into questions of identity and motives. This issue is accordingly answered.
25. In yet another case i.e. Secretary, Ministry of Defence & Ors. Vs. Prabhash Chander Mirdha, (2012) 11 SCC 565, the Supreme Court after having examined 29 of its previous decisions, including some of the decisions like State of Madhya Prakesh Vs. Bani Singh & Anr. JT 1992 (2) SC 54 and Transport Commissioner Madras Vs. A.Radhakrishan Muthy, JT 1994(7) SC 744, clearly laid down that the disciplinary proceeding or the charge-sheet cannot be quashed at an initial stage, as it would be a premature stage to deal with the issues. Proceedings are liable to be quashed on the grounds that they have been initiated at a belated stage or could not be concluded within a reasonable period unless the delay causes prejudice to the delinquent employee. There is no rigid yardstick laid down for judging the quantum of delay and it has been left to the good judgment of the court/Tribunal to determine the same for which factors like the gravity of the charges, the circumstances under which the alleged misdemeanor has taken place, its impact on the organization and the society, the factors leading to the delay etc have to be considered.
26. Here, delay is not one of the grounds which has been pleaded. The Honble Supreme Court has held that instead gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. This issue has been further examined in Pala Singh Tanck versus Union of India [OA No.1111/2011 decided on 05.01.2015]. For the sake of clarity, we would like to revisit the scope of judicial intervention in a reason based matrix:-
(a) Judicial intervention in departmental proceedings is akin to quashing the charge-sheet in a criminal case.
(b) Such intervention is to be confined to the rarest of the rare cases. The courts should not be in a hurry to assume the role of inquiry officer.
(c) Judicial intervention can be undertaken only where either the charge-sheet has been issued by the incompetent authority or the same does not make out any misconduct on the part of the officer proceeded against or where malafide is alleged and proved to the satisfaction of the Tribunal/court.
(d) The Tribunals/courts are not to enter into appraisal or re-assessment of evidence.
(e) The Tribunal/court has also to examine the gravity of charges involved while deciding the matter.
(f) There is no hard and fast rule or mathematical formula to determine when a charge-sheet can be quashed, and much is left to the discretion of the court for decision.
(g) In case the departmental proceeding is concluded, judicial intervention is warranted where the punishment is totally disproportionate to the gravity of the proven act of misconduct, contrary to rules or shocking to the judicial conscience of the court [Dhirendra Khare Vs. Central Board of Direct Taxes (OA No. 1606/2014 decided on 16.01.2015].
27. Now, we come to the second of the issues that whether the prosecution of the applicant is on account of malafide. We have already noted that the applicant has made serious allegations against one Shyam Saran, who wanted to protect Dr. Najma Haptullah, the then President of the respondent organization, in a case of morphing of photograph of Dr. Maulana Abul Kalam Azad. However, we find that mere allegations are not sufficient to establish mala fide and proof of mala fide hangs heavy upon the party which alleges the same, and in absence of such proof, accusations remain mere accusations. In State of Punjab & Another versus Gurdial Singh & Others [(1980) 2 SCC 471] while discussing that what is malafide and how it is to be proved, held that malafide is easy to allege but difficult to prove, relevant para whereof is extracted herein below for easy reference:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
28. Further, this Tribunal has gone into the question of malafide in the matter of R.K. Rai Vs. Union of India & Ors. (OA No. 3132/2012 decided on 12.01.2015) and held that the applicant had alleged malafide but had done nothing to discharge the onus of proof and hence, the plea of malafide would not become a basis for a decision.
29. In Ravi Yashwant Bhoir versus District Collector, Raigad [2012 (4) SCC 407], the Honble Supreme Court took into account 47 decisions in the previous cases and held as under:-
MALICE IN LAW :
37. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law.Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. Legal malice or malice in law means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745).
In the instant case, we note that the State is trying to school the employees who are suspected to be involved in a massive fraud committed on its resources. We also find that there is prima facie evidence to proceed with the charges and the charges bear out a commission of breach of departmental liabilities. Therefore, the respondents cannot be blamed altogether for trying to do their duty and protecting their own resources. To our mind, the learned counsel for the applicant has failed to establish as to what rules and laws have been disregarded in ordering departmental proceeding against the applicant. To the contrary, the facts and circumstances are arrayed against the applicant inasmuch as he has not impleaded either the said Shyam Saran or the former President of ICCR Dr. Najma Haptulla, against whom serious allegation of malafide has been made, as respondents in their personal capacity. Hence, we repeat that mere allegations will not take place of proof and that the allegation of malafide fails to sustain.
30. Now we finally come to the issue that whether the instant case is covered by the decision of the Tribunal in Neeraj Singh. In the case of Neeraj Singhs (supra), we note that the issues were entirely different. Here, there was a delay of about 7 years only to decide whether any case is established against the applicant. The alleged acts are supposed to have taken place in the year 1998. The department spent a very long period to decide whether the charges were getting established or not. In the meantime, the applicant had been afforded as many as 3 promotions and the debate was that whether there could be a case against the applicant or a warning would suffice. There was an abrupt change at the end and the officer was ordered to be departmentally proceeded against; whereas all the notings and examination within the department pointed to the contrary. These conditions are not attracted in the instant case.
31. In the case of S. K. Taqi vs. Cement Corporation of India [WP(C) NO.7748/2010 decided on 31.1.2013], the Honble High Court of Delhi had examined a similar issue and held that an employee might not have been proceeded against in criminal case but there is no reason to hold that he could also not have been departmentally proceeded against. For the sake of clarity, we extract as under:-
11. I find merit in the submission of learned counsel for the respondent. Merely because the CBI did not find the case strong enough to be taken to trial because the evidence collected by them during enquiry could not have substantiated the charges beyond reasonable doubt, it does not mean that the respondent could not have undertaken the departmental enquiry where the required standard of proof is based on preponderance of probability. Therefore, only because the petitioner may not have been proceeded against in a criminal court, is no reason to hold that the petitioner could not have been departmentally proceeded. Accordingly, we reach the conclusion that the case of Neeraj Singh (supra) would be of no help to the applicant as the two are dissimilar in circumstances. It is well established that not every decision of the court forms a binding legal precedent. In Bank of India and Another versus K. Mohan Das & Others [2009 (5) SCC 313], the Honble Supreme Court relied upon the decision in State of Orissa vs. Sudhansu Sekhar Misra [AIR 1968 SC 647] wherein it had been observed A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it."
32. Now we come to the last of the issues as to what relief, if any, can be provided to the applicant. In answering this query, we take note of our findings on the previous issues. We find that the scope of judicial intervention is in a very narrow focus and is confined to only three issues, i.e., whether the charge-sheet has been issued by the incompetent authority; whether it does not bear out misconduct; and whether it is hit by mala fide. We find none of the conditions occurring in the present case. Though malafide has been alleged against Dr. Najma Heptullah, former President of the respondent organization and one Shyam Saran, former Secretary, however, neither has been impleaded as party respondent nor are they present before us. We further find that no proof has been adduced on behalf of the applicant to support the charges of mala fide which fall flat in the absence thereof.
33. We further find that there is no bar to conduct departmental proceeding against the delinquent employee even after the criminal case on the similar lines may have been dismissed. To the contrary, we find that the allegations are grave and the evidence has been carefully marshalled. Moreover, it is not even the case of the applicant that he has been acquitted in the criminal case. The learned CBI court vide its order dated 30.11.2011 having noticed that necessary approval of the Central Government, as required under Section 6-A of the DSPE Act, had since not been taken, directed to keep the charge-sheet in abeyance and gave liberty to CBI to approach the Central Government seeking approval of investigation against the applicant and his co-accused. The learned court further directed that in the event approval is accorded, the matter shall be re-investigated in accordance with law and the material so gathered would be placed before the CBI court for further proceeding in the matter. Therefore, the criminal proceeding is yet to be finalized. This necessitates in the interest of public probity that the departmental proceeding should be gone through. We have also taken into consideration that the applicant is a senior officer of the Indian Foreign Service and is liable to represent the nation abroad. Therefore, it is all the more necessary that the department should carefully assess the charges leveled against him and send him out on foreign posting only when he has been exonerated in respect of all of them. Therefore, we find no merit in the contention of the applicant and dismiss the OA. However, taking into account the fact that a considerable time has elapsed, we direct the respondents to conclude the departmental proceedings subject to the cooperation of the applicant, positively within a period of six months from production of certified copy of this order.
34. With the above order, the OA is dismissed but without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/