Central Administrative Tribunal - Delhi
Mrs. Supriya Suresh Kenjale vs The Union Of India on 26 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3969/2012 Reserved On:05.09.2014 Pronounced on:26.09.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Mrs. Supriya Suresh Kenjale Widow & W/o (Late) Suresh S. Kenjale (Retd. Asst. Commissioner from the Customs Commissionerate, Head Quarters, Pune), Age 52 years Residing at Flat eNo.408, F-Building, Sonigara Aangan, Next to PCME Water Tank, Ravet, Pradhikaran, Pune, Maharashtra State Pin-412101. Applicant By Advocate: Shri Sudhir Kumar C.S. Versus 1. The Union of India Represented by the Secretary, The Union Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi-110001. 2. The Chairperson, Central Board of Excise and Customs, The Union Ministry of Finance, Government of India, North Block, New Delhi-110001. 3. The Joint Secretary (Admn.), Central Board of Excise and Customs, The Union Ministry of Finance, Government of India, North Block, New Delhi-110001. 4. The Under Secretary, The Union Ministry of Finance, Government of India, North Block, New Delhi-110001. 5. The Commissioner of Customs, Office of the Chief Commissionerate of Customs, Customs Commissionerate Head Quarters, The Union Ministry of Finance, Government of India, North Block, New Delhi-110001. Respondents By Advocate: Shri R.N. Singh. ORDER
G. Geroge Paracken, Member(J) The Applicant in this Original Application is the widow of Shri Suresh S. Kenjale, retired Assistant Commissioner, Customs Commissionerate, Headquarters, Pune. After his retirement, on attaining the age of superannuation on 31.05.2008, Shri Kenjale unfortunately expired on 17.07.2012. One day before his retirement, the Respondents, vide their Memorandum F.No.II/39-12/Vig/Cus/07-Pune dated 16.10.2007, charge sheeted him under Rule 14 of the CCS (CCA) Rules, 1965. The statement of Articles of Charges framed against him were as under:-
That the said Shri S.S. Kenjale, while working as Superintendent during the period from 28/08/2007 to 15.01.2007:
Article of Charge I:
Shri S.S. Kenjale, the then supdt. now Assistant Commissioner, did not declare the purchase of property at A-2/9, Shuham Park, Sector No.26, Samarth Nagar, Pradhikaran, on 24.08.1999, in his IPRs prior to 18.07.2007, within the time limit prescribed in the Rules.
Shri S.S. Kenjale did not declare the department regarding the sources of funding and purchase of such property. By this act of omission, Shri S.S. Kenjale appears to have contravened the provisions of Rule 18(2) of the CCS(Conduct) Rules, 1964.
Article of Charge 2:
Shri S.S. Kenjale, then Superintendent and now Assistant Commissioner, did not declare in his previous IPRs, until he filed fresh IPR on 18.07.2007 after the department went into correspondence with him, regarding the property at H.No.2152, Gat No.1298, Laxmi Society, Chickley, Pune.
Shri S.S. Kenjale did not declare to the department regarding the sources of funding and purchase of such property within the time limit prescribed in the Rules.
By this act of omission, Shri S.S. Kenjale appears to have contravened the provisions of Rule 18(2) of the CCS(Conduct) Rules, 1964.
Article of Charge-3:
Shri S.S. Kenjale, the then supdt. now Assistant Commissioner did not intimate the department regarding purchase of TATA Safari Vehicle on 27.08.2004 in the proper form and within the time limit prescribed under the Rules.
By this act of omission, Shri S.S. Kenjale, Assistant Commissioner, appears to have contravened the provisions of Rule 18(3) of the CCS(Conduct) Rules, 1964.
2. The aforesaid charges were proposed to be sustained on the basis of 5 listed documents but without any witnesses. The Applicant submitted his replies dated 12.12.2007 and 18.12.2007 enclosing therewith copies of the documents in respect of the transactions held for the immovable property/movable property mentioned at point Nos.II & III of Annexure-I to the Article of Charges. However, finding that the aforesaid Articles of Charges were not approved by the competent authority who is the President in his case, the Respondents vide Order No.F.No.II/39-12/Vig/Cus/07/134/R-Pune dated 14.01.2008, withdrew the same without prejudice to any other action which may be considered by the Government, in the facts and circumstances of the case. Thereafter, the Respondent sought information from the Applicant with regard to his immovable house property and the Tata Safari Vehicle. The Applicant, vide his letter dated 02.05.2008, gave the details and the source of income for purchasing them. However, the Respondents, vide F.No.C-14011/22/2008-Ad.V(B)/2765 dated 30.05.2008, again charge sheeted the Applicant under Rule 14 of the CCS (CCA) Rules, 1965. The statement of Articles of Charges issued to him were as under:-
1. Article of Charge I:
Shri S.S. Kenjale, Assistant Commissioner of Customs, Pune, while working as Superintendent of Central Excise, during the period from 1999-2004 did not intimate the prescribed authority before purchasing a Flat No.A2/9, Shubam Park Apartment, Pradhikaran, Nigdi, Pune, for Rs.7,94,000/- in his own name as envisaged in Rule 18(2) of the CCS(Conduct) Rules, 1964.
2. Article of Charge II:
Shri S.S. Kenjale, Assistant Commissioner of Customs, Pune, while working as Superintendent of Central Excise, during the said period did not intimate the prescribed authority the purchase of one Tata Safari Vehicle for Rs.7,03,158/- in his own name as envisaged in Rule 18(3) of the CCS (Conduct) Rules, 1964.
3. Article of Charge III:
Shri S.S. Kenjale has not been able to explain satisfactorily or produce any reliable documents to indicate authentic sources of funds utilized for repayment of the loan taken for the purchase of Tata Safari vehicle.
By the above acts of omission and commission, Shri S.S. Kenjale, Assistant Commissioner of Customs, Pune has failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant thereby violating Rule 3(1)(i) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.
Those Articles of Charges were also proposed to be sustained by the very same documents as listed with the earlier OM dated 16.10.2007 but again without any witnesses.
3. The Applicant vide his letter dated 06.06.2008 requested to grant him two months time to submit his written statement or personal hearing. As the Applicant did not submit his written statement within the said period of two months, the Respondents appointed an Enquiry Officer and a Presenting Officer on 27.08.2008. The enquiry proceedings commenced on 11.12.2008. On that date, the Inquiry Officer asked Shri Kenjale whether he had accepted the Charges given in Memo dated 30.05.2008 or not. Shri S.S. Kenjale (CO) replied that he accepted the first Article of Charge and he did not intimate the prescribed authority before purchasing the flat. He also submitted that he forgot to given information and that was his mistake. As regards the second Article of Charge is concerned, he again informed the Enquiry Officer that he did not intimate the prescribed authority before purchasing the Tata Safari vehicle and that was also his mistake for which he should be pardoned. He further informed the Enquiry Officer that he was not accepting the third Article of Charge and he will explain his defence but was not able to give any documentary evidence. He further informed that he had not given reply to the Charge Memo till that date. Thereafter, the Enquiry Officer asked him whether he wanted to engage any defence assistant. However, he informed the Enquiry Officer that he would argue his case himself. Again, on being asked by the Enquiry Officer, whether he received the copies of the listed documents Enquiry Officer, he replied in the affirmative. Further, according to the said order sheet, regarding the charge of payment of Rs.1.94 lakhs in cash Shri Kenjale deposed that initially he made cash payment of Rs.50,000/- + Rs.10,000/- = Rs.60,000/- in cash from the sales proceed of the jewellery of his wife. He has stated that the Jewellers then did not issue any receipt for the said sale and due to the urgency in purchasing the flat he gave the sales proceed so received to the builder in cash. The remaining amount of Rs.1.34 lakh he stated that he had not paid in cash but paid by cheque was from his savings account in the State Bank of India in Chinchwad Branch Pune. He has also agreed to produce the savings bank pass book showing the said transaction. Regarding the purchase of the Tata Safari vehicle also he agreed to produce the necessary documents on the next date of hearing. Though the next date of hearing was fixed on 16.12.2008 but it was held on 30.12.2008. On that date, the PO furnished the copies of the listed documents and the Applicant sought some more time to submit his documents. Last proceedings were held on 02.01.2009. On that date, the Applicant informed that the Enquiry Officer that out of Rs.1.94 lakhs paid to the builder Rs.60,000/- (Rs.50,000/- + Rs.10,000/-) paid in cash and the remaining Rs.1.34 lakhs were paid to the builder M/s Vishnoi Construction Co. Chinchwad, Pune, vide cheque No.822428 dated 16.09.1999 drawn on Cosmos bank extension counter Thermax, Chinchwad Pune (photocopy of all the three receipts duly signed by Shri S.S. Kenjale (CO) informed that he has no other documents to give any documentary evidence regarding sale of jewellery and deposition of the amount in the bank. He further informed that the jewellery was sold in Chiplun and no documents were provided by the jeweller. Further, since the Bank account was closed in the Cosmos about eight years back, no documents were readily available. As regards re-payment of Rs.2,07,204/- per year against purchase of Tata Safari Vehicle, he informed the Enquiry Officer that though the Tata Safari car was purchased by him and it was used as a private tourist taxi and it was running on rent and he was dealing directly with the customers, collecting about Rs.25,000/- p.m. as the fuel was arranged by the customers. He was also paying Rs.4000/- to the driver and the maintenance charges for car. However, he categorically informed that he had no documentary evidence in support of his submission that he was getting Rs.25000/- p.m. for the car as all transactions were made in cash. He has also informed the Enquiry Officer that they were five brothers and their Agriculture land of 8.5 Acres at Satara was common to all of them and the individual share was about 1.7 Acres. He also did not have any details of income and expenditure concerning the Agriculture land as entire work looked after by his elder brother. He has also stated that though there was a mistake of not intimating the department about the purchase of flat and Tata Safari vehicle yet it was due to his serious head injury he suffered in the accident in October, 1990 and subsequent two road accidents. Even as on that date, his memory was disoriented. Hence, he requested to ignore his technical lapse of not intimating the department about the purchase of flat and Tata Safari car.
4. Thereafter, the Inquiry Officer submitted his report on 20.02.2009 holding that all the three aforesaid Articles of Charges have been proved/confirmed. The relevant part of the said report reads as under:-
12.Shri S.S. Kenjale finally concluded that though there was a mistake of not intimating the department about the purchase of flat and Tata Safari it remained to be declared to the department because of my serious head injury during accident in October, 1990 and subsequent two road accidents. Even as on date my memory is disoriented hence I sincerely request to ignore my technical lapse of not intimating the department about the purchase of flat and Tata safari car. As regards source of income we have sold the gold jewellery and have used the Tata safari as private tourist taxi. Further the purchased flat was also given on rent to repay the loans. Unfortunately, in the circumstances explained above I do not have any documentary evidence in support of what is stated above. The lapses as above may kindly be condoned. I have nothing more to add.
13. Since the enquiry is completed in respect of all the three charges and CO has nothing more to add and PO also have nothing more to add, Shri Yogesh Kumar (PO) was directed to give his report by 09.01.2009.
14. The presenting officer Shri K. Yogesh Kumar submitted his report vide his note dated 27.01.2009 received on 28.01.2009. In his report the presenting officer has narrated the facts and confirmed that Shri S.S. Kenjale CO has admitted the Article of Charge I and II and subsequently have confirmed that Shri Kenjale is not in a position to produce any documentary evidence for sale of jewellery worth Rs.1.94 lakhs and establish the source of such an amount. In respect of Tata Safari vehicle Shri Kenjale has not been able to produce any land Revenue records form which he received a steady agriculture income. No documentary transactions was produced by Shri S.S. Kenjale to explain satisfactorily and authenticate the sources of funds raised by him.
15. I have carefully gone through the records of the case submissions made by the CO at the time of Personal Hearing and the report of the Presenting Officer.
16. Shri Kenjale CO vide his letter dated 08.05.2007, a document at Sr. No.3 of annexure-III of memorandum have inter alia confirmed that flat No.A-29, Shubham Park, Sector 26, Smarth Nagar, Pradhikaran, Nigdi, Pune-44 is purchased by him and the vehicle second hand Tata Safari is purchased by his wife in his name and have further confirmed that he has committed mistake for non-declaring the above properties in IPR. Shri Kenjle CO during the personal hearing as discussed above have categorically confirmed that he accept the Article of Charge-I and Charge-II as he ahs not intimated the prescribed authority before purchasing the flat and also he has not intimated the prescribed authority regarding purchase of one Tata Safari vehicle and he was requested to pardon the same. As regards the Article-III Shri Kenjale CO has not accepted the same. During the personal hearing on 11.12.2008. Shri Kenjale CO have inter alia confirmed that for payment of Rs.1.94 lakhs the flat in cash Rs.60,000/- have paid from sale proceeds of the jewelers of his wife. However, the jeweller has not produced the receipt of the same. The CO further confirmed that the remaining amount of Rs.1.34 lakhs was paid from the saving account in State Bank of India Chinchwad branch Pune by issue of a cheque and have further stated that he will produce the saving bank passbook in the said transaction. Subsequently during the hearing on 2.01.2009 he stated that as regards source of Rs.1.94 lakhs he paid Rs.60,000/- in cash and Rs.1.34 lakhs vide cheque NO.822428 dated 16.9.1999 drawn on Cosmos bank extension counter Pune, he has no other documents to give any documentary evidence regarding sale of jewellery and deposition of the amount in the bank. Since the bank account is closed in Cosmos Bank about 8 years back no documents are readily available. He further confirmed that during the hearing on 11.12.2008 the name of the bank was given as State Bank of India it was not State Bank of India but Cosmos Bank.
17. As regards repayment of Rs.2,07,204/- per year against purchase of Tata Safari vehicle it was stated by the CO that the said vehicle was used at private tourist taxi and it was running on rent and we were dealing directly with the customers and were collecting about Rs.25,000/- p.m., the fuel was arranged by the customers only and has subsequently confirmed that they have no documentary evidence to this effect. As regards income from agriculture land CO informed that they are five brothers and the agriculture land at Satara is common in five brothers name and the individual share is about 1.7 Acres, he has no details of income and expenditure concerning the agriculture land since the entire work is looked after by his elder brother.
18. The total land is reported to be 8.5 Acres amongst the five brothers no details were given regarding the income from the said land and the share of the CO Smt. Supriya Kenjale is also having a plot and house constructed out of agriculture income. Even if this is taken out of the purview of this case no documentary evidence have been produced regarding source of income to pay Rs.2,07,204/- per year towards vehicle loan and payment of Rs.1.94 lakhs. The EMI of the flat in Shubham Park is paid from the salary of Shri Kenjale CO. During the enquiry no satisfactory evidence/explanation was produced to counter the Article of Charge-III as given in Annexure-I and statement of imputation of misconduct or misbehaviour in support of the Articles of Charge in Annexure-II though sufficient opportunity/time was given to CO for the same. Based on the above facts and discussion I conclude that Article of Charge III is also proved/confirmed.
In view of the above facts, findings and discussion the Article of Charge-I, Article of Charge-II and Article of Charge-III given in Annexure-I of the memorandum No.16/2008 issued from F.No.14011/22/2008-Ad.V(B)/2765-2783 dated 30.05.2008 are proved/confirmed.
5. Based on the aforesaid report of the Inquiry Officer, the President who was the Disciplinary Authority, vide its order No.F.14011/22/2008-Ad.V/8938 dated 27.12.2011, imposed upon him the penalty of 50% cut in the monthly pension on permanent basis and forfeiture of the entire gratuity while otherwise admissible to him. The relevant part of the said order reads as under:-
AND Whereas the IO in his report dated 22.02.2009 held all the charges as proved.
AND Whereas after taking tentative approval of the Honble FM for a decision to impose a suitable penalty under Rule 9 of CCS (Pension) Rules, 1972 against Shri S.S. Kenjale, AC (Retd.) for the proven grave misconduct a reference was made to UPSC for their statutory advice.
AND Whereas UPSC in their advice vide letter dated 05.02.2011 regarding Article of Charge-I have observed that during the personal hearing before the IO, the CO had admitted that he did not give written reply to the Charge Memo till that date to the Department regarding the purchase of the flat. He further requested that he may be pardoned. He thus admitted the charge. Therefore, this charge is proved. Regarding Article of Charge-II UPSC has observed that though initially the CO denied the charge, during the course of the hearing before the IO, the CO categorically confirmed that he accepts the Charge-II as he had not intimated the prescribed authority before purchasing of one Tata Safari vehicle and has requested to pardon the same. Thus, based on the admission of the CO and statement before the IO, this charge stand proved. Regarding Article-III, UPSC inter alia has observed that the Tata Safari was purchased in the year 2004 for Rs.7,03,158/- in the name of the CO and a loan of Rs.7,00,000/- was obtained from Indrayani Bank by him. The contention of the CO that the vehicle actually belong to his wife and purchased in his name because his wife was having agricultural income and so bank loan to her would have been difficult, is not convincing and appears to be an after thought. It was actually the CO who own agricultural land measuring 1.7 acres. Therefore, treating agricultural income as of COs is legally not permissible. The CO failed to submit any evidence regarding any agricultural income of his wife by way of Income Tax Returns filed by her or through any other document. UPSC has also observed that this have been created to thwart any disciplinary proceedings against the CO and to cover up his illegal earnings. UPSC further observed that the misconduct of the CO not informing to the Department about the acquiring of the immovable/moveable properties is proved. More serious is that the CO has not been able to given any satisfactory explanation to prove the authentic source of income for purchase of the vehicle and all his explanations were misleading. This raises grave doubts about the COs integrity. In view of this, the charge under Article-III is, proved. In view of these details UPSC has advised that the end of justice would be met if a penalty of 50% cut in the monthly pension on permanent basis and forfeiture of the entire gratuity, otherwise admissible to the CO, is imposed on the CO, Shri S.S. Kenjale, AC (Retd.).
AND Whereas, taking into consideration IO report, submissions of CO, and all other relevant factors of the case the President considers that the advice of UPSC seems to be fair and appropriate and he has decided to accept the same.
Now, therefore, the President, after careful examination of all relevant facts of the case and the advice of the UPSC hereby imposes a penalty of 50% cut in the monthly pension on permanent basis and forfeiture of the entire gratuity, otherwise admissible on Shri S.S. Kenjale, AC (Retd) and accordingly.
(BY ORDER IN THE NAME OF THE PRESIDENT).
6. The Applicant has challenged the aforesaid order in this Original Application on the ground that the third Article of Charge was not an independent charge as it co-relates to the first two Charges. She has also stated that even though her husband has admitted the first two Charges and explained the reasons that it was due to partial loss of memory, neither the Inquiry Officer nor the Disciplinary Authority has considered it. Her further contention was that when her husband was not in a fit condition to explain the position satisfactorily or to produce any reliable documents to indicate authentic sources of funds utilized for repayment of the loan taken for the purchase of Tata Safari vehicle, the Inquiry Officer should not have held that he failed to explain the position satisfactorily or produce any reliable documents. Therefore, the third Article of Charge itself was redundant. In fact, the admission of the charges made by him was because of his partial loss of memory suffered by him following a near fatal road accident. The Inquiry Officer took advantage of the said admission and held that the charges have been proved. On the other hand, the Inquiry Officer ought to have taken cognizance of the Annexure A-3 series of medical certificates of the Applicants husband and pardoned his fault on medical grounds or to have imposed a minor penalty of censure or increment cut rather than going for a unduly harsh penalty of 50% cut in the monthly pension on permanent basis and forfeiture of the entire gratuity amount, otherwise payable to him.
7. The other contention of the Applicant was that except for the admission of her husband with regard to the first two Articles of Charges for which reasons have been given by him, no independent prosecution witnesses were there to prove the charge. Further, she has also stated that author of the listed documents No.2 and 4 was the Inquiry Officer himself. Therefore, it cannot be presumed that the Inquiry Officer has acted independently with free mind and without bias. It was also stated that by not having any list of prosecution witnesses, the Applicants husband was denied his valuable right to cross-examine them so that the real facts behind the charges could have been brought out.
8. The other contention of the Applicant is that the Inquiry Officer has conducted the enquiry in violation of the principles of natural justice. According to her, there was no enquiry at all but there was only verifications of the listed documents. There was neither any Examination-in-Chief nor cross-examination of anyone during the enquiry proceedings. The Presenting Officer has nothing to offer or to do any job during the regular hearing of the inquiry proceedings for want of any prosecution witnesses and he was sitting idle during the regular hearing of the enquiry. Except for reading out for the charges he did nothing else. The Enquiry Officer alone was questioning her husband.
9. Another ground taken by the Applicants counsel is that there was unexplained delay in initiating the enquiry proceedings against her husband. While the allegations mentioned in the charge sheet dates back to the year 1999, the Memorandum of Charges was issued to him only on 30.05.2008, i.e., after a period of more than 9 years and the enquiry proceedings also took considerable time as the same has ended only in 2012. Therefore, the total delay of nearly 13 years in concluding the disciplinary proceedings against him caused considerable prejudice, great mental agony and suffering to him not only in proving his innocence but also in getting his retiral benefits. In this regard the Applicant has relied upon the judgment of the Apex Court in the case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board 2005 (6) SCC 636 wherein it has been held that considering mental agony and sufferings caused to the employee concerned due to protracted enquiry, the charge was not sustainable. The relevant part of the said judgment reads as under:-
The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
10. The Applicant has also submitted that, admittedly, there was no case of embezzlement of any Government fund or loss of public money caused by her husband. Moreover, non intimation of the purchase of flat or the vehicle to the prescribed authority was only a minor fault for which the extreme punishment is not called for. Therefore, the punishment given to the Applicants husband is quite disproportionate to the gravity of the allegation levelled against him, unduly harsh, grossly in excess, irrational, shocking and outrageous in defiance of any logic. The Applicant has also submitted that the Respondents have no authority to penalize her by denying the family pension.
11. She has, therefore, filed this Original Application seeking the following reliefs:-
(i) To call for the records leading to the issuance of the Annexure A-1 Penalty Order and the Annexure A-2 Charge Sheet and to declare it as illegal and to quash them with all the consequential benefits thereof, as if none of the impugned order/charge sheet was ever in existence.
(ii) To direct the Respondents to release all the retiremental dues including the Leave Encashment and the Pension in full to the Applicant and also to release the retiremental benefits of her thereof, with a further direction that the arrears of the payment of the reitremental dues of the Applicants husband, be immediately paid to the Applicant stipulating a time frame, with an interest at the rate of 9.5% per annum on her husbands withheld reitremental dues.
(iii) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
12. The Respondents have filed their reply stating that the Applicants husband was charge sheeted on 30.05.2008 under Rule 14 of the CCS (CCA) Rules, 1965 for his acts of omission and commission committed by him while he was working as Superintendent of Central Excise during the period 1999 to 2004. He did not intimate the prescribed authority before purchasing flat No.A-2/9, Subham Park Apartment, Pune in his own name for Rs.7,94,000/- out of which Rs.6,00,000/- was taken from LIC Housing Finance and balance Rs.1,94,000/- was allegedly accounted for through sales of the jewellery belonging COs wife/Applicant. Thus, he violated sub-rules (2) and (3) of Rule 18(2) of the CCS (Conduct) Rules, 1964. He also did not intimate the prescribed authority of the purchase of one Tata Safari vehicle in his own name as envisaged in Rule 18(3) of the above Rules for Rs.7,03,158/- out of which Rs.7,00,000/- was obtained as loan from Indryani Bank. He was also not able to explain satisfactorily the sources of funds utilized for repayment of the loan taken for purchase of the vehicle as above. They have also stated that the proceedings were held as per prescribed procedure and it culminated in the competent authoritys order imposing the penalty of 50% cut in the pension of Applicants late husband on permanent basis and forfeiture of his entire gratuity otherwise admissible to him, vide order dated 27.12.2011.
13. They have also stated that when Memorandum dated 16.10.2007 proposing to initiate enquiry proceedings against the Applicants husband was issued, he did not submit his written statement of defence even though, vide his letter dated 6.6.2008, he sought two months time for submitting his reply, on medical grounds. However, he did not submit any written statement of defence even after the expiry of two months. Therefore, the Inquiry Officer and the Presenting Officer were appointed by the Disciplinary Authority on 27.08.2008 for expeditious completion of the proceedings as the inquiry could not have been kept in abeyance for long. Regarding, Applicants allegation that no prosecution witnesses were listed and thereby her late husbands right of cross examining them was denied, the Respondents have submitted that the charges were not intended to be sustained on the basis of any statements of witnesses but they were to be sustained only on the basis of the documents relied upon. Besides, the authenticity of such documents has never been challenged or disputed by the deceased delinquent official. They also denied the Applicants contention that her husband had admitted the Charges I & II because he had lost his memory partially, as baseless and misleading. According to them, such a contention has been raised as an attempt to dishonour and disregard the findings of the Inquiry Officer which undisputedly are based on facts on record.
14. As regards the submission of the Applicant that Sh. A.K. Kaushal [Addl. Commissioner (P&V)] was appointed as Inquiry officer despite the fact that the listed documents 2 & 4 mentioned in the Annexure-III to the Charge Memo were generated by him, the Respondents have stated that it did not deserve any comments except that those letters were issued by Sh. A.K. Kaushal in his official capacity as Addl. Commissioner (P&V) and the contents thereof only reflected matters of fact and nothing else. However, out of the five relied upon documents, documents 1, 3 and 5 were submitted by the charged officer himself. They have also denied the contention of the Applicant that the enquiry was not impartial and submitted that it was nothing but a last ditch effort of making wild and unsubstantiated allegations against the Enquiry Officer. But the daily order sheets would reveal that the Applicants husband was given fair chance to defend his case during the enquiry. He was also suitably accommodated by grating enough and more time to collect documents etc. in his defence. In this regard, they have referred to the statement of the Applicants husband made during the course of the last hearing held on 2.1.2009 which says: Unfortunately in the circumstances explained above, I do not have any documentary evidence in support of what is stated above. The lapses may kindly be condoned. I have nothing more to add. On the issue of alleged denial of opportunity to her husband to cross examine the witnesses, they have reiterated that the case was document based only and it was, therefore, not intended to be sustained on the basis of statements of any witnesses. If the Charged Official had any documentary evidence or defence witnesses, he was free to produce them during the inquiry but he did not do so, as he had none. Therefore, raising such an objection over an issue which was non-existent during the inquiry proceedings, after his death is not sustainable as the same is neither logical nor reasonable. The Applicants husbands letter dated 13.09.2010 requesting the Disciplinary Authority to expedite the proceedings further bears testimony that he was fully satisfied with the inquiry which took almost five months to conclude. Therefore, the question of vitiation of the proceedings does not arise. They have also denied the other allegation of the Applicant that her husband was given the IOs report after a deliberate delay of nine months. According to them, IOs report in any disciplinary proceedings, before being forwarded to the Charged Officer, is to be examined threadbare and thereafter it was forwarded to CVC for its 2nd stage advice. Therefore, the period of nine months time taken for the same was purely on account of administrative reasons. They have also stated that the Applicants husband failed to explain as to how he was able to pay successfully the annual EMI of Rs.2,07,204/- and another Rs.1,94,000/- towards payment of flat without having any known sources of income other than his salary. Under the circumstances, even a person of average understanding would not have reached a conclusion different from the one arrived at by the IO, the UPSC and finally by the DA. Even assuming that the Charged Official had put his vehicle to commercial use, he should have declared so. As he did not do so, it can safely be inferred that he had not put that vehicle to commercial use. Even if he had done so, he was constrained not to reveal its source of income because the purchase of the vehicle itself was made through illegal means in violation of the Conduct Rules. Therefore, IOs findings are based on sound observations vis-a-vis facts on record.
15. As regards the delay in holding the enquiry and the alleged prejudice caused to the Applicants husband in proving his innocence are concerned, the Respondents have submitted that Applicant should appreciate that the case against her late husband was an offshoot of the alleged unaccounted money earned by him through unfair means. In other words, it was a case of possessing assets disproportionate to his income and such a case is nothing but a manifestation of ill gotten money/properties accumulated over a period of time. Obviously, they will come to light only when there is a complaint against the public servant to the Department/police/CBI. So the delay in initiating disciplinary proceedings in such cases is certainly not dependent on the period when such movable/immovable properties were acquired by the Government servant but depends entirely on when such possessions are complained against or are investigated by the police/CBI as has happened in the case of the applicants husband. The CBIs report dated 14.12.2007 in the instant case was available with the department only in the first half of 2008 and the Disciplinary Authority, in accordance with the set procedure, was able to issue the Charge Memo on 31.10.2008. In this regard, the Respondents have relied upon the Honble Apex Courts judgment in the case of B.C. Chaturvedi Vs Union of India in Civil Appeal No.9830 of 1995 (decided on 1.11.1995) wherein it has been held as under:-
In the cases involving disproportionate assets the public servant during his tenure may not be known to be in possession of disproportionate assets or pecuniary resources. He may hold either himself or through some body on his behalf, property or pecuniary resources. Snap of any link may prove fatal to the whole exercise, care and dexterity are necessary. Delay thereby necessarily entails. Therefore delay by itself is not fatal in these types of cases. So, the delay by itself cannot be regarded to have violated Articles 14 or 21 of the Constitution.
16. We have heard the learned counsel for the Applicant Shri Sudhir Kumar C.S. and the learned counsel for the Respondents Shri R. N. Singh. We have also thoroughly perused the relevant records produced by the Respondents. We are aware that the scope of judicial review is very limited. It is not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. However, it is meant to ensure that the individual receives fair treatment and to determine whether the enquiry was held according to the prescribed procedure after complying with the principles of natural justice. The Court/Tribunal may also interfere if the finding reached by the Disciplinary Authority is based on no evidence (B.C. Chaturvedi Vs. Union of India (1996) 6 SCC 749). Further, where a statutory authority is required to do something in a particular manner, the same shall be done in that manner only. The State and other authorities, while acting under the statute, are the creatures of the statute and they must act within the four corners of the Statue (Bhavnagar University Vs. Palitana Sugar Mills Pvt. Ltd. 2003 (2) SCC 111).
17. As regards the submission of the Applicant that there was inordinate and unexplained delay in initiating the disciplinary proceedings is concerned, we do not find any merit. The first and second charges against the Applicants husband was that while he was working as Superintendent of Central Excise, during the period from 1999-2004, he did not give prior information regarding his purchase of Flat No.A-2/9, Shubam Park Apartment, Pradhikaran, Nigdi, Pune, for Rs.7,94,000/- and one Tata Safari Vehicle for Rs.7,03,158/- in his name in violation of Rule 18(2) and 18(3) of CCS (Conduct) Rules, 1964. The third charge was he was not able to explain satisfactorily or produce any reliable documents to indicate authentic sources of funds utilized for repayment of the loan taken for the purchase of Tata Safari Vehicle. For the aforesaid alleged misconduct, he was charge sheeted only on 30.05.2008, may be just one day before his superannuation. But as rightly relied upon the judgment of the Apex Court in B.C. Chaturvedis case (supra) by the Respondents, delay in initiation of disciplinary proceedings against the delinquent Government servant in such cases necessarily entails. In this case, it is seen that the departmental enquiry was initiated against the Applicant based on the report of CVC dated 14.12.2007. Thereafter, the Respondents issued the charge memo within eight months and the Enquiry Officer submitted his report on 20.02.2009. After consultation with the CVC and the UPSC, the Disciplinary Authority has passed its order imposing the penalty upon the Applicant on 27.12.2011. Therefore, the question of any inordinate and unexplained delay does not arise in this case.
18. However, we find merit in some of the other submissions of the Applicant. Admittedly, the Disciplinary proceedings against the Applicants late husband were initiated in terms of Rule 14 of the CCS (CCA) Rules, 1965. The departments file shows that the Respondents have obtained the approval of the President (Disciplinary Authority of the Applicants late husband) to initiate the disciplinary proceedings against the Applicant on 28.05.2008 but charge drawn against him has never been got approved by the appointing authority. In fact, the charge was drawn up and issued by the Under Secretary in the Department of Revenue on 30.05.2008. The Apex Court in its judgment in the case of Union of India and Others Vs. B.V. Gopinath JT 2013 (12) SC 392 rejected the contention of the Union of India that once the Disciplinary Authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up and issued by an authority other than the disciplinary authority and held that such a procedure would destroy the underlying protection guaranteed under Article 311(1) o the Constitution of India and would also do violence to the protective provisions contained under Article 311 (2).
19. Secondly, it is seen that the enquiry was held in violation of principles of natural justice. Out of the listed documents, two of them were issued by the Inquiry Officer himself. In other words, the Enquiry Officer should have been the prosecution witness in this case to prove those documents. Instead of doing so, he himself conducted the enquiry which is unbecoming of a quasi-judicial authority. It is a basic requirement of any disciplinary proceedings that the Inquiry Officer shall be a neutral person and he shall conduct the enquiry in a fair and reasonable manner. No man shall be a judge in his own cause. This aspect has been considered and explained by the Apex Court in its judgment in Mohd. Yunus Khan Vs. State of Uttar Pradesh and Others 2010(10) SCC 539 wherein it has been held as under:-
23. A Constitution Bench of this Court in State of U.P. v. Mohd. Noor, AIR 1958 SC 86, rejected a submission made on behalf of the State that there was nothing wrong with the Presiding Officer of a Tribunal appearing as a witness and deciding the same case, observing as under:
"The two roles could not obviously be played by one and the same person.......the act of Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri. B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding."
24. A similar view was taken by this Court in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School & Ors., AIR 1993 SC 2155, observing that a person cannot be a witness in the enquiry as well as the inquiry officer.
25. The legal maxim nemo debet esse judex in propria causa (no man shall be a judge in his own cause) is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof is treated as a violation of the principles of natural justice. (Vide Secretary to Government, Transport Department v. Munuswamy Mudaliar & Anr., AIR 1988 SC 2232; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and Mineral Development Ltd. v. The State of Bihar & Anr., AIR 1960 SC 468).
26. This Court in A.U. Kureshi v. High Court of Gujarat & Anr., (2009) 11 SCC 84, placed reliance upon the judgment in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., (1985) 4 SCC 417, and held that no person should adjudicate a dispute which he or she has dealt with in any capacity. The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision.
27. The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. (Vide: S. Parthasarthy v. State of Andhra Pradesh, AIR 1973 SC 2701; and Tilak Chand Magatram Obhan v. Kamla Prasad Shukla & Ors., 1995 Supp. (1) SCC 21).
20. Further, there was not a single witness to lead evidence against the Applicants husband. According to sub-rule (3) of Rule 14 of the CCS (CCA) Rules, 1965, the statement of imputations of misconduct or mebehaviour shall contain a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained. The said rule reads as under:-
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
The Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 has held that departmental proceedings are quasi-judicial proceedings and mere production of documents is not enough but their contents have to be proved by examining witnesses. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
21. Further, the Inquiry Officer conducted himself in an unfair manner. He held that the first and the second charges have been proved as the Applicants husband admitted his guilt. However, the Inquiry Officer conveniently avoided mentioning in the conclusion of his report that the aforesaid admission of guilt was not unequivocal or unconditional whereas Applicants husband had given reasons as to why he was admitting those charges. He stated clearly that he met with severe fatal accident due to which he had a partial memory loss. He had also produced his medical records before the Enquiry Officer. Fairness in holding the enquiry would demand that the Inquiry Officer should have considered the aforesaid submissions and render his findings as to whether, in the aforesaid facts and circumstances, the non-intimation of the acquiring of the flat as well as the Tata Safari Vehicle was intentional or not. In fact in the daily order sheet dated 30.12.2008, the Inquiry Officer himself has recorded the submission of the delinquent Government servant that he did not inform the authorities regarding his acquisition of the flat and the vehicle due to his memory failure occurred due to the serious head injury suffered by him in October, 1990 and the subsequent two road accidents. The Inquiry Officer, in his report, has also mentioned about the aforesaid submissions of the Government servant. But he did not give his finding in his conclusion. On the other hand, the Enquiry Officer made a factually incorrect finding that the Applicants husband categorically confirmed that he accepted Articles I & II. The aforesaid assertion of the Enquiry Officer is nothing but a distortion of the facts. It is a well accepted principle of jurisprudence that if one wants to act on admissions, such admissions should be taken in toto. It is not permissible to isolate some part of sentences and treat it as categorical admission of guilt. In other words, the Inquiry Officer has not rendered a definite finding that the Charged Officer had accepted the charge in unequivocal terms and in a unqualified manner. Again, as far as the third charge is concerned, it is very much related to the first two charges and it says that the Applicant was not able to explain satisfactorily or produce any reliable documents to indicate authentic sources of funds utilized for repayment of the loan taken for the purchase of Tata Safari Vehicle.
22. It is also well settled principle that the Enquiry Officer shall not shift the burden of proof upon the delinquent employee. However, in the present case, the Enquiry Officer, from the day one of the enquiry itself started questioning the Applicants husband. The said procedure adopted by the Enquiry Officer was in total violation of sub-rule (14) of Rule 14 of the CCS (CCA) Rules, 1965 which reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
23. In fact the Enquiry Officer did not conduct the proceedings with an open mind whereas maintaining impartiality in a domestic enquiry is an essential element of the principle of natural justice as well as affording "Reasonable Opportunity" to the delinquent contemplated by Article 311 (2) of the Constitution. The "Bias" in favour of the Department was writ large in the conduct of the Enquiry Officer. He acted so arbitrarily as he found the appellant guilty in such a coarse manner. In its judgment in the case of Uttar Pradesh & Others Vs. Saroj Kumar Sinha 2010 (2) SCC 772, the Apex Court has held as under:-
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
24. Further, it is seen that the Disciplinary Authority has imposed the penalty at the prescription of the Union Public Service Commission. It is also seen that the advice of the UPSC has never been furnished to the Applicant which caused great prejudice to him as the Disciplinary Authority simply followed it without any application of mind. In this regard, the judgment of the Apex Court in the case of Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589 is quite significant. The court held that it is violation of the principle of natural justice as it amounts to denial of opportunity to the Government employee to rebut advice of the UPSC based on which the Disciplinary Authority has imposed the punishment. The relevant part of the said order reads as under:-
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs.
25. In the above facts and circumstances of the case, we are of the considered view that the enquiry against the applicants husband was conducted in an improper and unfair manner. The Inquiry Officer has arbitrarily held that the charges against the Applicants husband were proved. He suppressed the relevant facts and his findings were not based on any evidence on record. Therefore, the said report is perverse. Accordingly, we quash and set aside the Enquiry Officers report dated 20.02.2009. We also quash and set aside the order of the Disciplinary Authority dated 27.12.2011 as the same was based on the aforesaid report and it has been passed in violation of the principles of natural justice. Consequently, this OA is allowed and we direct the respondents to forthwith release the entire withheld pension and other benefits including the entire gratuity payable to the Applicants husband to the Applicant without any further delay. The Respondents are also liable to pay interest at 9% per annum on the withheld pension, gratuity and other retirement benefits from the date they were due till the date they are paid. The aforesaid directions shall be carried out within a period of 2 months from the date of receipt of a copy of this order and file compliance affidavit.
26. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh