Central Administrative Tribunal - Delhi
Rajesh Vashist vs M/O Home Affairs on 11 September, 2023
1
OA No.2276/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.2276/2015
Reserved on: 17.08.2023
Pronounced on:11.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Rajesh Vashist, Deputy Filled Officer, Group B,
Non-Gazetted, Age-46 years
Ex-Employee of Sahastra Seema Bal, [SSB]
Composite Hospital, Gorakhpur,
R/o 48, Ganesh Nagar-II Shakharpur Extension
New Delhi-110092. ...Applicant
(By Advocate : Shri Ajesh Luthra)
Versus
1. Union of India through, the Secretary,
Ministry of Home,
North Block, New Delhi-110011.
2. The Director General
Sahastra Seema Bal [SSB]
East Block-V, R.K. Puram,
New Delhi-110001.
3. Inspector General Frontier Hqrs.
SSB, Lucknow.
4. Director General Narcotics,
Narcotics, East Block,
R.K.Puram, New Delhi-110066. ...Respondents.
(By Advocates: Shri Rajeev Kumar)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The applicant has filed the present OA under Section 19 2 OA No.2276/2015 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"[a] Quash and set aside the order dated 14/11/2014 and 04/02/2014 and 01/04/2013.
[b] Direct the respondents to reinstate the applicant with all consequential benefits.
[c] Grant the cost of the petition.
[c] Any other order this Honourable Tribunal may deem and proper in the facts and circumstances of the case."
2. The facts of the case, briefly as stated in the OA, are that the applicant was appointed in the Sahastra Seema Bal (SSB) on 07.06.1989 in the grade of Pharmacist and promoted to the grade of Deputy Field Officer in March 2003. He was selected for deputation in the Narcotics Control Bureau (NCB) and joined in the said Department on 24.01.2005 for a period of 3 years.
On 20.09.2005, the applicant went to Calcutta on an information that there is a deal of quantity in charas/heroine amounting to Rs.3 crores at Calcutta.
The said information was given to the applicant by an informer. Accordingly, a letter stating that the said information was obtained as per the rules and procedures under the NDPS Act with the signature and 3 OA No.2276/2015 left thumb impression of informer was obtained is as per mandatory procedure. The 20th September, 2005 being a Gazette holiday and next day being Sunday, the applicant could not inform his office about the matter but he informed the Zonal Office, Narcotics Control Bureau at Calcutta. On arrival, the applicant handed over the said letter of the informer to the DCP, Zonal Office at Calcutta which was kept in a sealed cover to be opened after the raid in order to identify the informer.
3. According to the plan given by the informer, the raiding party was to meet one person with a mobile at Haldi Ram VIP Road at 9.30 PM. The raiding party was to raid the room of Parminder Singh at Hotel Host. On reaching Calcutta, the raid was shifted to the next day i.e. Monday. The raiding party accordingly headed by the DSP of Calcutta Zonal Office and three other Inspectors raided the said room of Mr. Parminder Singh and found the complainant with Parminder Singh and two others. The complainant Harbans Lal told the raiding party that he had no connection to any other person and the persons found in the room were set free and there was no seizure memo. The applicant 4 OA No.2276/2015 came back to Delhi on Tuesday evening and reported in the office on Wednesday and remained in the office till 30th September 2005. The entire incident was explained to the concerned authorities in the office.
4. In the meantime, Harbans Lal filed a complaint against Mr. Parminder Singh and Others vide complaint dated 06.09.2005. The aforesaid complaint was filed for the purpose of lodging a FIR and registering the case. However, the applicant's name was not there in the FIR. The said FIR was quashed by the Hon'ble High Court of Delhi on 07.07.2006 in Crl. M.C.No.3273- 86/2006 based on an application moved by Shri Harbans Lal. On 30th September 2005, the applicant was contacted by one of the Inspectors of the Special Branch of Delhi, namely Hari Ram Malik, while the applicant was in the Nirula Restaurant at Connaught Place. The applicant was called out from the restaurant in the mobile by the said Inspector and was retained in police custody. The applicant informed his borrowing department about his detention and judicial custody through his letter dated 03.10.2005. On 04.10.2005, the applicant was placed under deemed suspension by the DG, NCB with effect from 30.09.2005.5 OA No.2276/2015
5. Against the said background, the applicant approached this Tribunal with OA No.2339/2005, as the applicant was apprehensive of his repatriation and against the non-payment of subsistence allowance.
The Tribunal vide its order dated 24.10.2005 directed the respondents as given below:
"Accordingly, OA is disposed of with the direction that the present OA shall be treated as a representation made by the applicant to the respondents for redressal of his grievance pleaded in the OA and the respondent shall decide this representation by a reasoned order with in a period of 2 months from the date on which a copy of the aforesaid representation along with the copy of the order of the Tribunal is received by respondent. Counsel of the applicant undertakes to supply a copy of the order of the Tribunal along with the copy of the aforesaid representation to the respondent within 7 days. OA is disposed of in above terms."
6. As soon as the order was received by the borrowing department, the applicant was repatriated to parent department on 30.11.2005 by the borrowing department.
7. On 07.07.2006, the FIR was quashed by the Hon'ble High Court of Delhi on a petition filed by one of the petitioners involved namely Raju Bengali, titled Raju Bengali & Others vs. Govt. of NCTD & Others. Based on the said order of the Hon'ble High Court, 6 OA No.2276/2015 complainant Harbans Lal moved an application in the trial court and directions were issued to release the amount of Rs.5,00,000 confiscated from the parental home of the applicant to build a fabricated case. On 30.10.2006, the DG SSB issued a letter approving the transfer of the applicant to DIG, Gorakhpur but no transfer order was issued. The applicant was not paid the subsistence allowance and on 12.04.2007 the DG, SSB revoked the order of suspension of DG Narcotics but even after the revocation of the suspension order, the applicant was not paid any subsistence allowance. Though there was no transfer order posting the applicant to DIG Gorakhpur, the DIG Gorakhpur wrote to the applicant asking him to report for duty based on the approval of transfer order. The applicant replied on 12.11.2007 to the DIG Gorakhpur stating that he is unable to report for duty in the absence of payment of subsistence allowance and also stating that there was no order of transfer to Gorakhpur except an approval order of transfer dated 30.06.2006.
8. The applicant challenged the order of repatriation and the non-payment of subsistence allowance in another OA No.359/2006. The same was decided on 7 OA No.2276/2015 11.01.2007 directing the Respondent No.3 to make the payment of subsistence allowance. The Respondent No.3 challenged the said order in WP No.1888/2007 before the Hon'ble High Court of Delhi stating that the DG Narcotics is liable to pay only one month's subsistence allowance i.e. for the period the applicant stayed with them, as the applicant had been repatriated to the parent department on 30.11.2005. Therefore, the subsistence allowance from 30.11.2005 should be paid by the parent department. Accordingly, the parent department SSB made a statement before the court that they are willing to release the subsistence allowance. The Hon'ble High Court of Delhi disposed of the said Writ Petition directing the Respondent No.2 i.e. DG, SSB to release the subsistence allowance to the applicant on reporting to the said office. On said direction of the court, the applicant reported to the parent department and submitted his application on 28.03.2008 but the parent department did not make any payment on the ground that the applicant had not reported to DIG Gorakhpur on the basis of the approval order dated 30.06.2006.
9. The applicant challenged the said order in MA 8 OA No.2276/2015 No.737/2008 in OA No.359/2006 but the Tribunal refused to interfere and dismissed the MA vide order dated 18.07.2008 and subsequently the OA was disposed of as infructuous. The said order of the Tribunal was challenged by the applicant in WP No.6249/2008 in the High Court of Delhi and by this time the respondents have released the subsistence allowance and further agreed before the Hon'ble High Court to release all pending payments immediately. Hence, the applicant expressed his willingness to report to Gorakhpur. Accordingly, the applicant reported to Composite Hospital, Gorakhpur on 30.10.2008.
10. On 23.01.2009, the applicant was served with a charge sheet. This was in continuation of first charge sheet dated 10.04.2008 with the same set of charges which were replied on 21.04.2008. The respondents became silent regarding the first charge sheet which was still pending and a fresh charge sheet was issued which was unlawful according to the applicant. Besides the purported unlawful charge sheet, the applicant has also stated that he has been paid the subsistence allowance partly which is far less than the total entitlement.
9OA No.2276/2015
11. It is further contended that the applicant has been kept under suspension from 01.11.2005 to 12.04.2007 without any reason despite the fact that the FIR in question has been quashed. The applicant never refused to join duties but there was no transfer order ever served on the applicant or the applicant was not paid his subsistence allowance despite reporting to Headquarters office in Delhi. Applicant has also contended that it is an admitted fact that there was no post of Field Officer (M), in Composite Hospital, Gorakhpur. However, the applicant replied to the said charge sheet on 02.02.2009. Following which, the inquiry was started though the applicant had submitted a representation to Respondent No.3 explaining the circumstances. Inquiry culminated into a penalty of reduction of one lower stage in the time scale of pay for a period of two years only by reducing the pay from Rs.11,860/- to Rs.11,540 in the revised pay scale as per the 6th CPC with cumulative effect from 01.06.2009 with further direction that the Government servant was not to earn any increment during the period of reduction and after expiry of the said period, the reduction was not have any effect of postponing of 10 OA No.2276/2015 future increments of his pay. Further the total period of unauthorized absence with effect from 01.11.2005 to 29.10.2008 and 04.11.2008 to 14.11.2008 was to be treated as dies-non for all purpose by the disciplinary authority vide order dated 01.06.2009 and upheld by the appellate authority vide order dated 04.10.2010. The applicant challenged the said order in OA No.259/2010 and the Tribunal was pleased to allow the OA partly upholding the penalty of reduction of pay and set aside the penalty of two spells of dies-non for all purposes.
12. The applicant requested to the DIG Gorakhpur for his transfer from Gorakhpur to Delhi as his father was a cancer patient and the applicant himself is a heart patient or to grant him voluntary retirement but the said representation did not elicit any response. The respondents issued another charge sheet vide memo dated 13.07.2009 based on the registration of FIR in the year 2005 against the applicant though the said FIR had already been quashed by the Hon'ble High Court of Delhi. The said charge sheet reads as follows:
Article of Charge No.1 That the said Sh. Rajesh Vashist, DFO(M) while functioning as Intelligence Officer on 11 OA No.2276/2015 deputation in the Narcotics Control Bureau New Delhi was involved in irregular transaction of a sum of Rs. 1.5 crores which led to filing of a criminal; case. On account of his getting involved in a criminal case, the said Sh. Vashist was prematurely repatriated by the NCB authorities. That the said Sh. Rajesh Vashist has shown lack of integrity which is a grave misconduct on his part and is most unbecoming of a government servant of his rank and status and is a violation of provision of Rule 3(1) 9i) to (iii) of the CCS (Conduct) Rules 1965.
Article of Charge No.2 The said Sh. Rajesh Vashist DFO(M) while functioning as Intelligence Officer on deputation in the NCB, New Delhi had misused his official position and had associated himself in a fake raid under the guise of a team of Delhi Crime Branch thereby committing misconduct and an act of most unbecoming of a government servant of his rank and status hereby violating the provisions of Rule 3(1) (i) to (iii) of the CCS (Conduct) Rules 1965.
Article of Charge No.3 The said Sh. Rajesh Vashist DFO(M) while functioning as Intelligence Officer on deputation in the NCB, New Delhi having repatriated prematurely from the NCB has tarnished the image of the parent organization by getting involved in criminal case. Thereby the said Sh.Vashist has committed misconduct and an act of most unbecoming of a government servant of his rank and status hereby violating the provisions of Rule 3(1) (i) to (iii) of the CCS (Conduct) Rules 1965.
That the Articles of Charges were supported by number of witnesses and documents. A true copy of the said Charge Sheet dated 12 OA No.2276/2015 13/07/2009 is annexed herewith and marked as Annexure A/22 [Colly)."
13. The applicant represented against the charge sheet vide his representation dated 04.01.2011 and the charge sheet was challenged by the applicant before the Allahabad Bench of this Tribunal in OA No.1319/2009 and the Tribunal was pleased to pass an interim order on 21.01.2009 staying the final order subject to the outcome of the OA. On 08.11.2012, the OA was disposed of with the following directions:
"Considering the subsequent development i.e the order passed by the Honourable High Court dated 7.7.2006, whereby the FIR against the applicant i.e. has been quashed, we are of the considered view, that since the disciplinary authority has not proceeded in the matter, therefore, let the applicant move a comprehensive representation before the disciplinary authority taking all the available plea which shall be looked in to by the disciplinary authority thereafter and to pass a reasoned and speaking order. Let the above exercise be carried within two months from the receipt of certified copy of this order. Needless to say that we have not expressed any opinion on the merit of the case. It is made clear before proceeding in the enquiry proceedings that the decision be taken upon the above representation and decision taken thereupon be also communicated to the applicant."
14. But the department continued with the inquiry and concluded it on 17.12.2012. By the time the applicant could represent as directed by the Tribunal, the 13 OA No.2276/2015 Respondent No.2 sent the inquiry report dated 04.02.2013 to the applicant vide memo dated 05.02.2013, granting 15 days' time to represent against the said inquiry report. Accordingly, the applicant made representation but the disciplinary authority imposed the punishment of reducing the pay of the applicant by two stages in the time scale of pay for a period of 1 year with effect from 01.04.2013. The applicant did not represent against the said order as he was broken mentally, physically and financially because of the continuous harassment and victimization of the department and accepted the punishment to get rid out of the department, as the applicant was awaiting the decision on his voluntary retirement. The competent authority had assured the applicant to consider his application for voluntary retirement on conclusion of the departmental proceedings pending against him as per his reply dated 05.11.2012. The applicant has contended that appellate authority who took the reins under his control to impose the punishment of dismissal under the guise of enhancement of punishment through show cause notice. On 30.09.2013, reopened the case with a show cause 14 OA No.2276/2015 notice deciding to dismiss the applicant from service enhancing the punishment. The applicant represented to the appellate authority against the show cause notice quoting the representation to the disciplinary authority challenging the inquiry report but the appellate authority without referring to the points raised by the applicant in the representation passed a non-speaking and unreasonable order without application of mind and without any evidence. The applicant represented against the said order of dismissal vide representation dated 26.02.2014 by filing a review petition but the same was rejected and aggrieved by the same, this OA has been filed.
15. In the OA, the applicant has taken the following grounds:
i) The FIR registered on the complaint of Harbans Lal was quashed by the Hon'ble High Court of Delhi whereas the order of suspension for further disciplinary proceedings was based on the said FIR and once the FIR is quashed there is no scope for disciplinary proceedings against the applicant.
ii) The incident and the FIR is of 2005 to the charge 15 OA No.2276/2015 sheet dated 13.07.2009 is stale.
iii) Inquiry is a sham and the entire proceeding was directed and controlled by the appellate authority and has taken a decision to dismissed him from service.
iv) FIR No.494/2005 and the complaint of Harbans Lal dated 06.09.2005 does not mention the name of the applicant.
v) Ever since the arrest of the applicant and his refusal to report to Gorakhpur without any transfer order and challenging the non-payment of subsistence allowance, the department has become vindictive.
vi) There was no evidence of any involvement of the applicant except the confessional statements of the applicant in police custody and on a false report of the Delhi Police which was never verified/substantiated by the authors of the said report.
vii) The inquiry officer submitted inquiry report proving the charges without any evidence and none of the points raised in the representation dated 04.01.2011 and the oral submissions before the inquiry officer have been considered by the inquiry officer.
viii) Prosecution/inquiry officer has failed to bring any of the witnesses and also failed to substantiate any of the statements of the applicant. The charges are totally baseless and without any inquiry or without any evidence the inquiry officer in his report mentioned that the prosecution 16 OA No.2276/2015 witnesses did not appear before the court.
ix) The inquiry has not been conducted as per the procedure laid down under Rule 14 of the CCS (CCA), Rules, 1965 as none of the statements of any of the witnesses were substantiated nor the applicant was given an opportunity to cross- examined.
x) The so-called documentary evidence cannot be the evidence in the eyes of law unless and until the authors of the documents were examined. It is not understood as to why no witnesses were deposed before the inquiry proceedings as such all the charges leveled against him were not thoroughly enquired into with relevant documents and witnesses.
xi) The other officer suspected in the same manner, who was on deputation in the same department namely Shri Rajeshwar Singh was given a clean chit by the inquiry officer and the DSP Shri Chatterjee under whom raid has been conducted, has not been punished and harassed.
xii) Because in the review application, the applicant challenged the findings of the inquiry and requested to the revising authority to consider his representations and when he did not accept the punishment of disciplinary authority by issuing the show cause notice, the appellate authority opened up the entire case and granted an opportunity to challenge the very order of the inquiry officer.
xiii) The applicant has also cited a catena of judgments 17 OA No.2276/2015 such as Captain M. Paul vs. Bharat Gold Mines Ltd & Another (1999) 3 SCC 679 stating that just because the Government has power to appoint does not mean of the become the master of the body and soul of the employee. The fundamental rights, including the rights to life under Article 21 of the Constitution or the basic rights are not surrendered by the employee. Citing the case of State of Punjab vs. Prem Sarup 2008 (12) SCC 522, the applicant has pointed that the Hon'ble Supreme Court rejected the contentions of the State on the ground that it had not been able to show those witnesses who turned hostile before the criminal court have been examined in the departmental proceedings and no material had been brought to prove the contention. Further drawing our attention to the judgment of the Hon'ble Supreme Court in the case of Union of India vs M.K.Sarkar 2010, 2 SCC 59 it has been contended that when a stale or dead issue/dispute is considered and decided date of such decision cannot furnish a fresh cause of action for reviving the dead issue or time barred dispute. Therefore, allowing the respondents to proceed further when the departmental proceedings at his distance of time will be very prejudicial to the appellant.
16. The respondents in their counter as well as in the written submissions have made the following submissions: 18 OA No.2276/2015
i) The applicant (Sh.Rajesh Vashist), Ex-DFO (Medic) SSB, was appointed as Pharmacist in SSB and was promoted to DFO (Medic) on 22-04-2003, and while on deputation with Narcotic Control Bureau (NCB), w.e.f.
24-01-2005 and functioning as Intelligence officer in NCB Headquarters at New Delhi was involved in a criminal case of cheating of "NAGMANI" upto the tune of Rs.1.5 crores along with 13 other people named in the counter reply affidavit, under a criminal conspiracy of conducting a fake raid at Hotel Host International (Kolkata) on 22-08-2005, in lieu of which an FIR was lodged at P.S. Patel Nagar, U/Sec.420/120-B/34 IPC vide diary no.494 dated 06-09-2005 and Sh.Rajesh Vashist was arrested on 30-09-2005, for the allegation that Mr.Rajesh Vashist had retained Rs.5 Lakhs, which was also admitted by him in front of the Police personnel and the same was also recovered from him. (Copy of the status Report of the Police is enclosed Annexure-1 of the Counter Reply).
ii) The applicant was repatriated to SSB from NCB on 31-10- 2005 for his involvement in the criminal case and subsequent arrest and further upon repatriation he was posted to C.H. Gorakhpur vide order dated 30-06- 2006, but he did not report and remained absent since 01-11-2005 to 29-10-2008 and joined C.H. Gorakhpur on 31-10-2008, while he again absented himself from 04-11-2008 to 14-12-2008. Thereafter, he was relieved from C.H. Gorakhpur to SHQ Gorakhpur on 19-12-2008 against a vacant post of DFO (G). 19 OA No.2276/2015 Subsequently, the applicant was chargesheeted vide SHQ SSB Gorakhpur Memo dated 13- 07-2009 and on the basis of departmental enquiry, the Inspector General FTR HQ SSB Lucknow awarded punishment of reduction in pay by two stages in the time scale of pay for a period of one year, w.e.f. 01-04-2013 and additionally, he will not earn increment of pay during the period of such reduction and on the expiry of such reduction the period of reduction will have the effect of postponing his future increments. Sh. Rajesh Vashist, DFO (Medic), SHQ, SSB Gorakhpur will have the liberty to appeal with appellate authority within 45 days after receiving the order. But the petitioner did not prefer any appeal with Appellate Authority against the said punishment.
iii) As per the provisions contained under Rule-29 of CCS (CCA) Rules, 1965, the Additional Director General, SSB FHQ New Delhi being the Reviewing Authority found that the punishment awarded to the said Sh. Rajesh Vashist, is not commensurate with the gravity of offence committed by him on the grounds that there is ample evidence against him in relation to his involvement in the cheating case amounting to Rs. 1.5 crores for which he had made admission before the Trial Court through an affidavit while praying for bail. In bail application No. 407 of 2007 filed by the applicants alongwith Rajesh Vashist before the Trial Court that the complainant would be paid a sum of Rs. 95 lakhs in all as a full and final settlement of case on account of compromise and being one of the party who has admitted this fact before Court is evident that the 20 OA No.2276/2015 applicants alongwith Rajesh Vashist have deposited the said amount before the Court for settlement and for quashing of FIR No. 494 dated 06/09/2005 lodged against him. In view of the affidavit filed by the applicants, and agreed by the complaint the Court has finally quashed the FIR No. 494 dated 06/09/2015 being settled amicably among the parties. Copy of Affidavit is enclosed as Annexure-2.
iv) The Additional Director General, SSB FHQ New Delhi had decided that the ends of justice would be achieved if the penalty of "Dismissal from Service" be imposed and accordingly he imposed the said penalty upon the appellant vide order No. 13/SSB/Pers- III/2005(6)/764-66 dated 4th February, 2014.
v) The applicant (Sh. Rajesh Vashist) Ex-DFO(Medic) preferred review petition dated 01/03/2014 to the Director General, FHQ SSB New Delhi against the enhanced penalty i.e "Dismissal from Service" which was taken into consideration and rejected the appeal being devoid of merit, and upheld the punishment of "Dismissal from Service" awarded to him by ADG FHQ New Delhi vide order No. 13/SSB/Pers-
III/2005(6)/764-66 dated 4th February, 2014.
vi) The Additional Director General, SSB FHQ, New Delhi being the Reviewing Authority found that the punishment awarded is not commensurate with the gravity of offence committed by the applicant, hence the penalty of "Dismissal from Service" was awarded to him vide order dated 04-02-2014, considering his admission of crime and being detained in police custody from 30- 09-2005 to 05-10-2005.
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vii) On account of the applicant's failure to join the duties at C.H. Gorakhpur, no subsistence allowance was paid to him and further he has not complied with the norms of FR-53, i.e. non-production of non- employment certificate. Although Rs.96,820/- have already been paid to the applicant vide DD No.0523- 781523 dated 07-10- 2008, but still the applicant did not resumed to work. It is submitted that the applicant despite of transfer orders refrained from joining duties for 26 years and remained absent without any sanction of leaves.
viii) It was the duty of the applicant to join at C.H. Gorakhpur, which he did not do and further had been seeking disbursement of subsistence allowance for the entire period and treat his suspension period as the period spent of duty, which is not permissible under the law.
ix) The applicant was given ample opportunity to file his reply before the Reviewing Authority, but he failed to do the same and hence, the orders passed by the Reviewing Authority were given effect under Rule 29 of CCS (CCA) Rules. In fact a copy of inquiry report was provided to the applicant along with the show cause notice, but the applicant didn't preferred any appeal, which reflects that he was satisfied with the quantum of punishment.
x) The nature of offence is in itself of serious nature and the act(s) of the applicant clearly show that he had failed to maintain absolute integrity, devotion to duty and committed an unbecoming act by a Govt. servant.
xi) All the articles of charge have been proved against 22 OA No.2276/2015 the applicant beyond any reasonable doubt by the Inquiring Authority as per Rule-14 of CCS (CCA) Rules and after due examination of facts and circumstances, the quantum of punishment was awarded to the applicant.
xii) The continuation of employment of such employee cannot be considered conducive for the forces like SSB. Hence, dismissal of the applicant by the Appellate Authority is in line with principles of natural justice.
16. We have perused the pleadings on record and also heard Shri Ajesh Luthra, learned counsel for the applicant and Shri Rajeev Kumar, learned counsel for the respondents. Both the parties have also submitted their written submissions which have also been perused. Though learned counsel for the applicant has taken several grounds, his main contention is that the very foundation of the case was the FIR, based on which the charge sheet was framed has been quashed by the competent court and hence the edifice for the disciplinary proceedings collapsed. Further, the departmental inquiry was not conducted as per the procedure laid down under Rule 14 of the CCS (CCA) Rules, 1965, as none of the statements of any witnesses was substantiated nor the applicant was given opportunity to cross examine. The inquiry officer solely relied on the documentary evidence which cannot be the evidence in eyes 23 OA No.2276/2015 of law unless, until the authors of the documents were examined. Therefore, it was a case of no evidence. In fact there were 18 PWs listed in the list of witnesses but none of them appeared in the departmental proceedings. There are averments against the disciplinary and appellate authorities also. It is contended that the disciplinary authority despite the case being a case of no evidence imposed a penalty of reduction of pay by two stages in the time scale of pay for a period of one year with cumulative effect, though the applicant was seeking voluntary retirement. Consequently he did not approach next higher authority by way of submitting any representation. A show cause notice was issued whereby the reviewing authority proposed to enhance the penalty to that of dismissal and despite the applicant's submission that this was a case of no evidence, the penalty was imposed and enhanced to dismissal without any reasoning. Learned counsel for the applicant has drawn our attention to the judgment of the Hon'ble Supreme Court in Roop Singh Negi vs. Punjab National Bank (2009) 2 SCC 570, wherein a charge sheet based on FIR proceedings was quashed as neither any witness was examined nor any document was proved during the inquiry proceedings. The learned counsel for the respondents per 24 OA No.2276/2015 contra has reiterated the claim made in their counter reply pointing out that the applicant was involved in a criminal case of cheating of "NAGMANI" upto the tune of Rs.1.5 crores along with 13 other people under a criminal conspiracy of conducting a fake raid, which resulted into an FIR and ultimately arrest of the applicant. He had retained Rs.5 lakhs illegally out of 1.5 crores deal which was recovered from him. A departmental proceeding was accordingly started wherein the charges were proved which led to the impugned orders. It is further contended that the FIR which was supposed to have been quashed was not because the applicant was not involved in the case but because of a compromise leading to some settlement amicably among the parties.
17. Let us first engage with the issue of FIR against the applicant which was purported to be the foundation of the charge sheet and subsequent departmental inquiry. It is not in dispute that the applicant was not specifically named in the FIR but he was arrested along with many other accused persons named in the FIR because of his presence during the so called raid. It is also evident that the fact of being a co-accused in a criminal case has been admitted by the applicant himself during the course of proceedings 25 OA No.2276/2015 through an affidavit. Further, this is also undisputed that the said case was compounded with the permission of the competent court. The question is what would be the effect of such compounding and whether it tantamount of acquittal. The learned counsel for the applicant has drawn attention to Para 7 of the Hon'ble Delhi Court judgment vide WP(C)No.4051/2012 decided on 13.07.2012 which is as follows:
"7. We do not see any reason to interfere with the impugned order passed by the Tribunal. First of all, the respondent Anil Kumar had clearly disclosed the factum of registration of the criminal case in both his application form as well as in the attestation form. Secondly, the said respondent had also been acquitted by the trial court insofar as the offences under Section 452/506 IPC are concerned and as regards the offence under Section 354 IPC the same had already been compounded with the permission of the court in terms of the provisions of Section 320 CrPC. The effect of all this would be that the respondent stood acquitted of all charges against him."
18. In the light of above, it leaves no doubt in our mind that in the case before us the applicant stands acquitted of the charges against him and hence the very basis of the charge sheet leading to the departmental proceedings appears to be unsustainable. In this context, we also place reliance on the law laid down by the Hon'ble Supreme Court in the cases of Capt. M. Paul Anthony vs. Bharat Gold 26 OA No.2276/2015 Mines Ltd. and another, AIR 1999 SC 1416 and G.M. Tank vs. State of Gujarat, (2006) 5 SCC 446.
19. The second issue before us is the manner of conduct of departmental proceedings and if it is a case of no evidence. This is a matter of record that the charge sheet listed 18 prosecution witnesses which included the officers who were involved at various stages including the investigating officer of the criminal case. None of the PWs appeared in the departmental proceedings despite notice. The report of the IO with regard to first charge reads as follows:
Shri Rajesh Vashist, DFO denied the charge and stated that he was never involved in the case, however, accepted that he was arrested by the Delhi Police, Patel Nagar, P.S. to the same case on 30.09.2005 and got released on regular bail on 06.10.2005. As such, this is corroborated with his own statement. However, not a single prosecution witness could be examined as they did not appear before the IO/Court, despite summon sent to them twice of their respective address as well as through their controlling officer. (Emphasis supplied)
20. With regard to Charge Nos.2 and 3 also, it was submitted by the IO the prosecution witnesses could not be examined as they did not turn up to depose their statements, despite summoning them twice during the course of enquiry. Yet the IO proved all the three charges based on the following documents:
a) Police status report in investigation of FIR No.494 of 27 OA No.2276/2015 2005.
b) Self written statement of Shri Rajesh Vashist dated 30.09.2005.
c) Copy of seizure memo of Rs.5 lacs by Delhi Police (P.S. Patel Nagar) from the residence of Shri Rajesh Vashist duly signed by CGO.
d) Shri Rajesh Vashist 'AFFIDAVIT' in Criminal Misc.No.4035 of 2006 in Delhi High Court in Bail Application No.407 of 2006. While doing so neither author of these documents nor any witness was examined and/or cross examined by the applicant.
21. Rule 14 of CCS (CCA) Rules prescribes the procedure for imposing penalties. Proviso to sub-rule (1) of Rule 14 says that no order imposing any of the penalties specified in clauses (v) to (ix) of Rule 10 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15 or in the manner provided by the Public Servants (Inquiries) Act, 1850 where such inquiry is held under that Act.
22. Sub rule (14) of Rule 14 of CCS (CCA) Rules, 1965 provides that 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 28 OA No.2276/2015 the disciplinary authority. The witnesses shall be examined by or on behalf of the Officer and may be cross-examined by or on behalf of the Government servant.
23. It has been admitted by the inquiry officer himself that no prosecution witnesses out of as many as 18 appeared, denying the opportunity to the delinquent officer to cross examine any of them. In fact, the inquiry officer also never examined any witnesses to prove the documents. The entire action taken by the respondents appears therefore ex facie illegal. The finding of the inquiry officer was not based on any evidence and on the basis of statement of some persons, recorded earlier in the inquiry, the finding of guilt was reached.
24. Learned counsel for the respondents during the hearing has stressed that the guilt of the applicant is established by the fact that he was arrested and if it is shown that the view taken by the authority is reasonably possible view, the court should not sit in appeal over that decision as preponderance of probability is enough in departmental proceeding. We are conscious of the fact that the court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the 29 OA No.2276/2015 question; but we must enquire whether there is any evidence at all in support of the impugned conclusion. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the applicant's grievance is well-founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that the 3 charges are proved against him is based on no evidence.
25. Other than the cases of no evidence, judicial review can also be restored to, to ascertain whether the enquiry has been fairly and properly held or whether the rules of natural justice are complied with.
26. In State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya (2011) 4 SCC 584, the Hon'ble Supreme Court held thus:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out 30 OA No.2276/2015 perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana
- 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil)"
(Emphasis supplied)
27. In the present case, the charge sheet dated 13.07.2009 alleged applicant's complicity in three major charges. It can be seen that in all the three charges no witness was examined and just on the basis of that, earlier the applicant had been arrested based on an FIR in which incidentally his name did not figure, the charge of misconduct was proved. Coming now to the second aspect whether procedure was properly followed in conducting the departmental inquiry, we have already pointed out serious errors of non-examination of any witnesses and not proving of documents. Also we fail to understand that why for a case pertaining 2005 a charge memo would be issued on 13.07.2009 i.e. after a gap of almost four years. No plausible explanation for this delay has been provided.
28. However, notwithstanding the above, on the fact of this 31 OA No.2276/2015 case, we are of the view that the departmental inquiry conducted in this case is totally unsatisfactory and without observing the required procedure for proving the charge, non-compliance of the mandatory provision of sub rule 14 of Rule 14 of CCS (CCA) Rules, 1965 as already discussed, inasmuch as no witnesses appeared.
29. In view of the aforesaid, we do not find force in the argument of the learned counsel for the respondents that despite their best efforts, the presence of the witnesses could not be ensured and the relevant documents produced during the inquiry were enough to prove the charges and in the absence of witnesses, it was not possible for the inquiry officer to examine or for the applicant to cross-examine. The respondents could have adjourned the hearing and tried all possible means to secure the presence of the witness/witnesses should have given an opportunity to cross-examine the witnesses with the applicant. We are also aware that the procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiates the inquiry held or order passed except the cases falling 32 OA No.2276/2015 under no notice, no opportunity and no hearing categories. The complaint of violation of procedural provision should be examined from the point of view whether such violation has caused prejudice to the delinquent officer in defending his case properly and effectively. If no prejudice is established to have resulted, it is obvious that no interference is called for and the test is whether the applicant has received a fair hearing, more specifically in the context of mandatory provisions.
30. In our view the relevant mandatory provision of Rule 14 (14) of CCS (CCA) Rules, 1965 the mandatory provision of CCS (CCA) Rules has been violated, and this is a case of no opportunity and no evidence.
31. In the circumstances, we are inclined to allow the OA and set aside the impugned orders and we order accordingly. Ordinarily, we could have reserved the liberty for the authority to take proceedings afresh in accordance with law, if they would have so decided. However, keeping in view the facts and circumstances of the case including the fact that the alleged incident is of the year 2005, we are of the view the matter needs to be put to quietus. We order accordingly. The applicant shall be reinstated and shall be entitled to all consequential benefits in accordance with the 33 OA No.2276/2015 relevant rules as expeditiously as possible and within 8 weeks from the receipt of this order. No costs.
(Sanjeeva Kumar (R.N.Singh) Member (A) Member(J) /kdr/