Central Administrative Tribunal - Jabalpur
Gorakh Nath Singh vs M/O Finance on 3 May, 2024
O.A.No. 200/00044/2019 CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH JABALPUR Original Application No.200/00044/2019 Jabalpur, this Friday, the 3rd day of May, 2024 HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER Gorakh Nath Singh, S/o Late Inderjit Singh, DOB: 13/11/1962, Mob NO. 9425571010, Post- Jt. Commissioner of Income Tax (Exemption), O/o Commissioner of Income Tax (Exemption), Bhopal R/o BKD-20, Sector 9, Bhilai - 490006 (CG)
-Applicant (By Advocate - Shri Akash Choudhary) Versus
1. Union of India, Ministry of Finance, Through its Secretary, Department of Revenue, Central Board of Direct Tax, North Block, New Delhi 110001
2. The Under Secretary (V&L)-I, Government of India, Ministry of Finance, Central Board of Direct Tax, North Block, New Delhi 110001
3. The Chairman, Ministry of Finance, Department of Revenue, Central Board of Direct Tax, North Bock New Delhi 110001
4. Director General (Vigilance), Government of India, Second Floor, Jawaharlal Nehru Statdium, new Delhi 110003
5. The Commissioner of Income Tax (Exemption), E5 Arera Colony, Metro Walk Building, Bhopal 462016 (M.P.)
- Respondents (By Advocate- S K Mishra) (Date of reserving order: 29.01.2024) Page 1 of 11 O.A.No. 200/00044/2019 Order By Shri Kumar Rajesh Chandra, AM.
The Original application has been filed by the applicant against the major penalty charge memorandum dated 13.12.2018 (Annexure A/1) served upon him under provisions of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
2. Briefly, the case of the applicant is that the applicant while working under the respondents was served with a major penalty charge sheet dated 13.12.2018 (Annexure A/1). The impugned charge memorandum Article I, II and III would make it clear that no misconduct could be attributed towards the applicant and the respondents in an unjustified manner have framed the article of charges by taking into account an old incident of April, 2012. The action of the respondents in belatedly issuing charge sheet is illegal and objectionable and is liable to be quashed. The applicant gave reply to the said charge memorandum vide his detailed representation dated 10.01.2019 (Annexure A/2). The applicant submitted that for the incidence of 2012, he was issued show cause notice on 28.06.2017 which was served upon the applicant vide communication dated 19.07.2017 (Colly. Annexure A/3). The applicant after receiving show cause notice was shocked and surprised to know that allegations were levelled regarding survey proceedings which started on Page 2 of 11 O.A.No. 200/00044/2019 16.04.22012 while applicant was holding the post of Asst. Commissioner of Income Tax, Circle-1 (2), Raipur. The applicant has humbly submitted before the authorities by preferring a representation dated 31.07.2017 (Annexure A/4). As the allegations for which he was served show caused were more than 5 years old, the applicant sought the copy of relevant documents but the request of the applicant was denied vide order dated 29.08.2017 (Annexure A/5). The applicant filed his reply on 30.11.2017 (Annexure A/6) along with the relevant documents. The respondents after a period of about 1 year served the major penalty charge sheet dated 13.12.2018 which is under challenge in this O.A.. The applicant is nearing the age of superannuation and being an officer of Group A services, the applicant's promotional aspects are at sharp edge. The applicant vide office order No. 220/2017 dated 29.12.2017 (Annexure A/&) is being appointed and promoted in the grade of Jt. Commissioner of Income Tax (JCIT) on Ad-hoc basis in Level 12 w.e.f. 01.01.2018.
3. In their reply, the respondents have stated that the applicant failed to maintain absolute integrity, devotion to duty and he was charge sheeted vide charged memorandum dated 13.12.2018 accordingly. It is further stated that the applicant had requested Addl. Director General (Vigilance) West vide his letter dated 31.07.2017 (Annexure 4 of the OA) to arrange for supply of copies of relevant Page 3 of 11 O.A.No. 200/00044/2019 documents relied upon. In this connection, ADG (V) WZ had brought to the applicant's notice vide his letter dated 29.08.2017 (Annexure A/5) that in view of the para No. 4.4 (g) Chapter IV of the CVC Manual Vol 1, it was not possible to give a copy of the records sought by the applicant at this stage. However, it was also conveyed to the applicant that the relevant records maintained could be inspected by the applicant. Sufficient opportunity was provided to the applicant to furnish his version after inspecting the concerned records and the applicant submitted his reply to the department on 30.11.2017 pursuant to issuance of show cause notice. The respondents in reply to issuance of charge sheet in the year 2018 submitted that the same was issued after considering the version of the applicant after providing him adequate opportunity. It is stated that CBI had registered a Regular Case against Shri P W Athalye, the then JCIT, Raipur and others. After investigation into the matter, CBI forwarded a report in respect of the applicant to ADG (V) WZ for examination and sending report in respect of the applicant. The applicant was issued a version letter dated 28.06.2017. In response to the request made by the applicant to arrange for supply of copies of some documents, ADG (V) WZ vide letter dated 29.08.2017, conveyed to the applicant that he can only inspect them. The applicant submitted his reply and after examining the same, ADG (V) WZ submitted his report vide letter Page 4 of 11 O.A.No. 200/00044/2019 dated 16.04.2018. After analysis of the same, a reference was made to the CVC for first stage advice vide communication dated 08.08.2018 which was responded to by CVC vide its OM dated 22.10.2018. As such there is no inordinate delay in issuance of charge memo. The respondents also denied the submission of the applicant that a single charge is split into three separate charges as the charges are different as explicitly stated in the charge memorandum dated 13.12.2018. The applicant was appointed to the grade of JCIT on ad-hoc basis along with IRS officers of 2008 batch and leftover officers of earlier batches vide order dated 29.12.2017 w.e.f. 01.01.2018 for a period of one year in terms of DOP&T OM dated 30.03.1988. Subsequently, the Department also processed a proposal for convening a meeting of the DPC for regular promotion of IRS officers of 2008 batch. Since the terms of ad-hoc appointment were upto 31.12.2018 only and the DPC for regular was expected upto 31.12.2018, it was considered to extend the terms of above officers by 3 months. Accordingly, the department obtained the opinion of DOPT vide their I.D. Note dated 16.01.2019 for further extension of ad-hoc appointments to the grade of JCIT in respect of IRS officers of 2008 batch and leftover officers of earlier batches for a period from 01.01.2019 to 31.03.2019 or the date of effect of regular promotion whichever is earlier. However, before issuing extension order as per OM dated 10.04.1989, the vigilance Page 5 of 11 O.A.No. 200/00044/2019 status of these officers had been ascertained. All the officers were clear from vigilance angle except two officers namely Shri G N Singh (applicant) & Shri Nayanjyoti Nath. Therefore, with the approval of competent authority, further extension order was issued in respect of 236 IRS officers except Shri G N Singh and Shri Nayanjyothi Nath. In the meantime, a DPC for regular promotion in respect of IRS officers of 2006, 2007 & 2008 Batches and leftover officers of earlier batches for the vacancy year 2016-17, 2017-18 and 2018 was held in UPSC. Since the vigilance status of the applicant was withheld, his name was kept in sealed cover by said DPC. Further, since he was not clear from the vigilance angle, the appointing authority decided not to extend the term of ad-hoc appointment to the post of JCIT. Therefore, he was reverted to his substantive post prospectively w.e.f. 14.02.2019, i.e. date of issuance of order. Since the applicant had already worked as JCIT from 01.01.2019 to 13.02.2019, the term of ad-hoc appointment was extended for that period.
4. The applicant has also filed rejoinder to the reply filed by the respondent wherein the applicant has taken his earlier stand and denied the averments made by the respondents in their reply. The applicant further submitted that so far as he is concerned no action was considered necessary between April 2012 and 30.06.2016 either by his immediate seniors or by the Disciplinary Authority. The Page 6 of 11 O.A.No. 200/00044/2019 impugned charged memo was issued only after the receipt of CBI report dated 30.06.2016 at the instance of CBI and not at the instance of the Disciplinary authority. The applicant also relied upon the judgment passed by the Hon'ble High Court of Madhya Pradesh in W.P. No. 17642 of 2012 in the case of Union of India vs Rajesh Kumar Verma dated 13.08.2013 wherein the High Court upheld the order of the CAT, Jabalpur Bench quashing the charge sheet issued at the instance of Vigilance department of Railways in that case. In the instant case as well, initiation of impugned proceedings after such long delay is contrary to established legal position and the splitting of the charges is only intended to harass the applicant.
5. The respondents have also filed additional reply to the rejoinder wherein they reiterated the submissions made in the reply and further the averments made by the applicant in the rejoinder are denied.
6. This Tribunal has considered the matter and perused the documents annexed herewith the Original Application. The judgments relied upon by the counsel for both the parties and the written submissions supplied by them are also taken into consideration.
7. The submission of the applicant is two fold. Firstly, there is an inordinate delay in issuing the charge sheet and secondly the Page 7 of 11 O.A.No. 200/00044/2019 charge sheet has been issued at the dictate of CBI. Regarding first submission, it is a settled principle that merely delay in initiating departmental proceedings does not automatically vitiate the whole inquiry proceedings. The applicant has been served with a show cause for the incidence pertaining to year 2012. We find that before issuing charge sheet to the applicant, the matter was referred to the CVC and CVC vide OM dated 22.10.2018 (Page 30 of the paperbook) has advised for initiation of major penalty proceedings against the applicant. Thus, both the plea of the applicant cannot be accepted as neither there is any delay in issuance of charge sheet nor the charge sheet has been issued at the instance of CBI.
8. Learned counsel for the applicant also pointed out that the respondents have deliberately split singular charge into three article of charges whereas on bare reading of all three charges it would reveal that only one article of charge could have been leveled against the applicant. However, on perusal of the charge sheet, we find that all the three charges are although corroborated with each other but the act/misconduct of the applicant is detailed in all the three article of charges. In any case, there is no pleading in the Original Application that the charges do not constitute misconduct or under instruction from CBI. It is the assertion of learned counsel for the applicant that even there is no specific pleadings in this regard but as per CAT Page 8 of 11 O.A.No. 200/00044/2019 Rules of Practice 1993, his arguments also get included in the definition of pleadings. Even if we assume so, it cannot be a good ground to quash the charge sheet.
9. We are conscious of the fact that the departmental proceedings are not liable to be quashed on the grounds that the proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee and the gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. We are in full agreement with this proposition of law propounded by the Hon'ble Apex Court in so many cases.
10. In B C Chaturvedi vs. Union of India & Ors, again a three judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:
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O.A.No. 200/00044/2019 "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
The counsel for the respondents has also submitted that inquiry has been concluded, UPSC advice has been obtained and punishment of 20% deduction of monthly pension has been imposed. Page 10 of 11
O.A.No. 200/00044/2019
11. We do not find any illegality in the procedure adopted by the respondents in issuance of charge sheet to the applicant and the same does not warrant any interference from this Tribunal.
12. Accordingly, in view of the observations made above, this Original Application is dismissed. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
VK/-
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