Central Administrative Tribunal - Allahabad
Sanjay Kumar Tiwari vs Central Board Of Indirect Taxes A& ... on 9 December, 2024
Reserved on 18.11.2024
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 09th day of December, 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 782 of 2023
Sanjay Kumar Tiwari aged about 48 years, S/o Subhash Chandra
Tiwari, Superintendent, CGST & Central Excise, Varanasi.
........... APPLICANT
By Advocate: Shri Pradeep Kumar Mishra and Shri Rishikant
Rai
Versus
1. Union of India through Secretary, Ministry of Finance,
Department of Revenue, New Delhi.
2. Chairman, Central Board of Indirect Taxes, New Delhi.
3. Principal Chief Commissioner, CGST & Central Excise Lucknow
Zone, 7-A, Ashok Marg, Lucknow.
4. The Commissioner of Customs (P) U.P. & Uttarakhand, 5th and
11th Floor, Kendriya Bhawan, Sector - H, Aliganj, Lucknow.
5. The Commissioner, CGST and Central Excise Commissionerate,
09 Maqbool Alam Road, Varanasi.
..........RESPONDENTS
By Advocate: Shri Manoj Kumar Sharma
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri Pradeep Kumar Mishra, learned counsel for the applicant and Shri Manoj Kumar Sharma, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"i. To set aside the impugned order dated 04.03.2020 passed by the Commissioner, CGST and Central Excise,
1|Page Varanasi and Appellate Order dated 04.01.2021 passed by Chief Commissioner, CGST & Central Excise Lucknow Zone, Lucknow (annexure no. A-1 and A-2 to the compilation - I) ii. To pass such other order or direction as may be deem fit proper and expedient in the interest of justice.
iii. To award exemplary cost to the applicants for causing tremendous physical and mental harassment to the applicants."
3. A compendium of the facts as have been narrated in the present original application has been filed by the applicant who is a permanent employee of the respondents, being aggrieved by the order dated 04.03.2020 passed by the Commissioner, CGST and Central Excise, Varanasi (Disciplinary Authority) wherein it was ordered that the pay of the applicant be reduced by two stages from his present pay of Rs. 72,100/- in pay level - 8 to Rs. 68000/- in pay level 8 for a period of two year with direction that the applicant will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of his pay in terms of major penalty as specified under the provisions of Rule 11(v) of the CCS CCA Rules, 1965. Applicant had challenged the aforesaid order dated 04.03.2020 before the Appellate Authority but the said authority upheld the order of the disciplinary authority vide its order date 04.01.2021 and thus the applicant is aggrieved by that order also.
Applicant has contended that he was wrongly framed for the misconduct which he did not commit and the same was adequately recognized by the inquiry officer subsequent to a full-fledged inquiry. However, the observation of Disciplinary Authority against the opinion of the inquiry authority that the applicant had falsified the records is absolutely baseless as the said records the defacement of which is being alleged, was not in the possession of the applicant who was posted in the other branch of the Division and he only acted as per the order of the superior officers. Applicant has also alleged that there are no cogent facts or legally sustainable evidences against
2|Page him and he has just been targeted for unknown reasons. Further allegation of the applicant is that the whole facts as set out in the memorandum is concocted and entirely based on rumors and hearsay of disgruntled element to settle personal scores with the applicant.
4. We have heard learned counsels for the parties and perused the documents on record.
5. Initiating his arguments, learned counsel for the applicant submitted that it is a case of no evidence. The disciplinary proceedings were started on the basis of rumors only. To substantiate this fact, learned counsel for the applicant referred to the annexure A- 3 of compilation - II (RUD-3) and further argued that Additional Commissioner Custom (P) Lucknow himself has mentioned in the letter dated 10.07.2015 that "It is being widely a rumor that out of the Rs. 93 lacs recovered, Rs. 25 lacs was pocketed by the Customs officials." It is also argued that persons from whose possession Indian currency is said to have been recovered have not made any complaint nor they were examined during the inquiry. It is also argued that when both the persons in whose respect information had been received were intercepted and only Indian currency were recovered from their possession and same were returned to them after preparing the notesheet. It is also argued that since foreign currency have not been found in possession of those persons, Indian currency said to have been recovered from the possession of them had been handed over to them, therefore, there was no necessity to prepare the seizure memo (Panchnama).
6. Learned counsel for the applicant further argued that four witnesses were examined during the inquiry. The inquiry officer has relied upon the previous statement made by the witnesses examined during the inquiry but the same were not confronted during the inquiry and thus the said statement cannot be relied upon and it cannot be described in the category of admissible evidence. Referring to the inquiry report, it was further argued that K P Singh who has reported leveling allegations against the applicant was not present on
3|Page the spot where one Vivek Agarwal and Rupesh Seth were intercepted. Statement of KP Singh is also not supported by any reliable evidence. He claimed himself to met with Rupesh Seth and Vivek Agarwal at Radisson Hotel at Varanasi on 09.07.2015 and as per his version they have disclosed regarding the recovery of Indian currency amounting Rs. 93 lacs from their possession but as per the statement of K P Singh himself, they did not lodge any complaint nor they were examined by the inquiry officer. It is also argued that inquiry officer has also not examined the person in whose presence recovered Indian currency was returned to the aforesaid persons. It was next argued that other witnesses D K Mishra has also not supported the prosecution case. Referring to the inquiry report, it was also argued that there was no occasion to examined the delinquent employee before cross examination of the prosecution witnesses. Referring to the Rule 14(9) of CCS (CCA) Rules, 1965, it was further argued that the applicant himself had denied all the charges leveled against him in the reply submitted on the chargesheet and thus there was no stage to examine the CO by the PO. Thus, fair procedure for conducting the inquiry has not been followed in the matter. Other witness Himanshu Gupta who is also not a witness of the incident, his statement is based on the statement of witness K P Singh and thus statement of this witness has no relevance in respect of the allegation leveled against the applicant. Next witness Keshav Singh although has admitted that search was made by the delinquent employee without authorization in his presence but nothing has come out from his statement to support that Rs. 93 lacs were recovered from the possession of Vivek Agarwal and Rupesh Seth.
7. Learned counsel for the applicant further argued that procedure prescribed under Rule 14 for conducting the regular inquiry have not been followed in the matter. Statement of the delinquent employee under Sub Rule 18 of Rule 14 of CCS (CCA) Rules has not been recorded. Incriminating material said to have been relied upon by the CVC/CVO were not put before the applicant complying with the provision of aforesaid Rule and thus, inquiry proceedings on this
4|Page ground itself stands vitiated. It was further argued that inquiry officer after concluding the inquiry found the charges not proved. The Disciplinary Authority without forming any opinion on the inquiry report forwarded to the CVC/CVO for second stage advice. Referring to the advice given at the level of the CVC, it is also argued that same is not based on evidence collected during the inquiry. Since no foreign currency or incriminating material was recovered from the possession of the Vivek Agarwal and Rupesh Seth therefore the applicant has rightly returned the recovered Indian currency to them preparing the note sheet. Non-preparation of the Panchnama cannot be taken as misconduct defined under CCS (CCA) Rules.
8. Learned counsel for the respondents vehemently opposed the submissions of the applicant's counsel and by way of counter affidavit, he argued that on receiving report from the prosecution witness K P Singh, Additional Commissioner Custom (P) Lucknow a fact finding inquiry was ordered wherein it was found that the applicant who was posted at Lal Bahadur Shastri Airport, Varanasi, exceeding his jurisdiction intercepted Vivek Agarwal and Rupesh Seth. Although information to his superiors is said to have been given as per the version made by the delinquent employee but entire proceedings adopted by him was not akin to the procedure prescribed under the relevant provisions of the customs act. If the version taken by the delinquent employee is taken into consideration then also the panchnama (Seizure Memo) ought to have been prepared and non- preparation of seizure memo itself revealed that amount of Rs. 93 lacs had been recovered from the possession of Rupesh Seth and Vivek Agarwal out of which, Rs. 25 lacs was pocketed by the applicant. This fact is proved from the previous statement made by the delinquent employee as well as witness D K Mishra. Opinion formed by the inquiry officer was against the evidence collected during the inquiry therefore vigilance department CVC has rightly formed opinion for imposing the punishment upon the applicant on the basis of evidence available in it. It is also argued that opinion formed by the vigilance department was served to the applicant and
5|Page he has made reply thereto and thereafter the disciplinary authority has imposed punishment and the appellate authority has also considered the entire case in correct manner and has rightly affirmed the punishment imposed upon the applicant. Procedure prescribed for conducting the inquiry has been followed and there is no deviation from any rule. Statement of the delinquent employee has been recorded. Incriminating materials have been placed before it. Thus, there is no illegality / infirmity in the punishment imposed upon the applicant. It was further argued that after intercepting the aforesaid persons namely Rupesh Seth and Vivek Agarwal, they were taken to the customs office and there search was made. Thus, it was mandatory for the search party to prepare the panchnama. Non- preparation of panchnama itself places the applicant committing the breach of provision of customs act. Opinion formed by the disciplinary authority is supported by the evidence available on record and thus the instant OA lacks merit and is liable to be dismissed.
9. Rejoinder has been filed by the applicant's counsel reiterating the averments as given in the OA. To substantiate his case further, learned counsel for the applicant has also relied upon following case laws:
(i) Arun Kumar Gupta Vs. Union of India and others decided on 24.09.2024 in Writ A No. 3089 of 2024 by Hon'ble Allahabad High Court (Lucknow).
(ii) Union of India and others Vs. H.C.Goel reported in 1964 AIR 364
(iii) Roop Singh Negi Vs. Punjab National Bank & others reported in AIR 2008 SC (Suppl) 921
(iv) Ministry of Finance Vs. S.B. Ramesh reported in LAWS (SC0 1998 2 28.
(v) Union of India and another Vs. D.S. Manchanda reported in LAWS (DLH) 2011 3 587
(vi) Rajesh Kumar Tiwari Vs. Union of India and others decided on 2.9.2024 in OA No. 357 of 2022 by C.A.T., Allahabad Bench.
(vii) Subal Makhal Vs. Indian Red Cross Society & others decided on 28.08.2024 in WPCT No. 225 of 2023 by Hon'ble High Court of Calcutta.
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10. We have considered the rival submissions and gone through the entire records and carefully perused the judgments relied upon by the contesting parties.
11. Before discussing the issue raised by the parties in their written submissions as well as during oral hearing, we find it expedient to quote the relevant case laws relied upon by the parties.
(i) In Arun Gupta (supra), Hon'ble High Court of Allahabad (Lucknow Bench) has held that power of the Tribunal to go into the facts of the case is not restricted if for just decision of the case circumstances necessitated so.
(ii) In the case of H.C. Goel (supra), Hon'ble Supreme Court has held that suspicion cannot be treated as evidence. It has also been held that mere suspicion should not be allowed to take the place of proof even in domestic enquiry. It may be that the technical rules which govern criminal trial in courts may not necessarily apply to disciplinary proceeding, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules.
(iii) In Roop Singh Negi (supra) case in para 17, Hon'ble Supreme Court has held as under:-
"17. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof".
(iv) In S.B. Ramesh (supra) case, Hon'ble Supreme Court has held that compliance of provision of Rule 14 (18) of CCS (CCA) Rules, 1965 is mandatory. Omission to do this is a serious error committed by the Inquiry Authority
(v) In D.S. Manchanda (supra) case also, Hon'ble High Court of Delhi relying on S.B. Ramesh (supra) case has held the Rule 14 (18) of CCS (CCA) Rules, 1965 to be mandatory.
(vi) In Rajesh Kumar Tiwari (supra) case, this Tribunal has also relied upon S.B Ramesh (supra) case and has held that provision of Rule 14 (18) of CCS (CCA) Rules, 1965 is mandatory.
(vii) In Indian Red Cross Society and others (supra) Hon'ble Calcutta High Court in para 11 has held as under:- "11. The prosecution suspected the petitioner's conduct. But the suspicion cannot, in law, be treated as evidence against the
7|Page petitioner. Mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led but we are unable to hold that on the record, there is any evidence which can sustain the finding that Article III has been proved against the petitioner".
12. In this matter, as is evident from the records, one report was submitted by the Additional Commissioner Customs (P) Lucknow on 10.07.2015 to the Commissioner of Customs (P) Uttarakhand and UP, 5th and 11th Floor, Kendriya Bhawan, Sector - H, Aliganj, Lucknow with the allegation that discreet inquiry caused by him from various sources, prima facie, gave credence to the rumour of complaints against the applicant and therefore to verify the veracity of the same, with the help of an acquaintance, he met with Mr. Lallu Seth on 08.07.2015 at around 5 PM in Hotel Radisson, Varanasi who confirmed the aforementioned incident to be true but did not come forward to give the complaint in writing. A perusal of the record also reveals that aforesaid authority had gone to the customs office, Varanasi to take the file which is said to have been prepared after interception but the same was not immediately handed over to him. As per the applicant, as well as witness namely D K Mishra, the Additional Commissioner, it was available immediately as soon as it was traced and same was produced in the office of KP Singh at Lucknow. The allegation leveled against the applicant is that:
i. No Panchnama of the incident was prepared.
ii. The case files / papers could not be produced before the ADC during his visit to the Division Office, Customs, Varanasi on 09.07.2015.
iii. The date of opening the file in the File Opening Register has been defaced.
iv. The case file was initiated by Shri Sanjay Kumar Tiwari, Superintendent, even though he was not posted in the Customs (prev)
8|Page Division Varanasi and Shri Keshav Singh, Inspector was present during the incident, as stated by both the AC and the Superintendent.
v. Statements of Shri Rupesh Seth and Shri Vivek Agarwal were recorded without Panchnama being drawn, even though, strangely, two witnesses were shown present during the recording of the statement.
vi. There is major contradiction in the statements of Shri D K Mishra, AC and Shri Sanjay Kumar Tiwari, Supdt. Regarding the whereabouts of the file, during the visit of the ADC in the Division Office, Customs, Varansi on 09.07.2015. Shri Sanjay Kumar Tiwari, Supdt has stated that he handed over the file to the Assistant Commissioner, whereas Assistant Commissioner could not produce it.
13. A perusal of the inquiry report also reveals that presenting officer has been appointed in the matter. No examination-in-chief during the inquiry has been recorded rather the statement recorded during the fact finding inquiry has been placed during the regular inquiry for cross-examination, this fact is clear from the inquiry report itself. Inquiry Report also reveals that the inquiry officer has given opportunity for cross-examining the witnesses on different dates but before cross-examination of the witnesses, the presenting officer has examined the CO on the same date i.e., 07.09.2017. Questions and answers asked from the delinquent employee at this stage are mentioned in the inquiry report thereafter the applicant was permitted to cross-examine the witness Keshav Singh on 02.04.2018, witness K P Singh on 27.04.2018, witness D K Mishra on 03.07.2018 and witness Himanshu Gupta on 20.07.2018. Inquiry Officer after recording the statement of the aforesaid witnesses obtained the written brief of the presenting officer. In the inquiry report, it is also mentioned that "IO has also given an opportunity to Sanjay Kumar Tiwari (CO) vide letter dated 09.07.2018 under the provision of Rule 14(18) of the CCS (CCA) Rules, 1965. In response, Shri Sanjay Kumar Tiwari (CO) was presented before IO on schedule date
9|Page 11.07.2018 and submitted that his statements tendered as CO may be treated as statements of witness in the case and he also reiterated for some additional documents in support of his evidence" A perusal of the inquiry report further reveals that on analysis of the evidence collected during the inquiry, the charges leveled against the applicant / delinquent employee were found not proved by the IO.
14. It also appears that the Disciplinary Authority initially agreeing with the report of the I.O. supplied the copy of the IO report to the CO for his reply, thereafter the same has been forwarded along with the inquiry report to the CVO/CBIC for second stage advice. Advice dated 26.09.2019 given by the aforesaid authority is as follows:
"2. On examination of the IO report and records of the case, the Commission has observed that:
(i). The observation of CVO CBIC that statement of the persons are not substitute for panchnama seems to be cogent.
(ii). IO has not elaborated in his report the reasons of not relying the report dated 10.07.2015 (E 6) of Shri K.P. Singh, the then Addl. Commr. of Customs, Lucknow. IO has simply relied the statement of other co- accused, Shri D.K. Mishra.
(iii). Shri Himarishu Gupta, the then Commissioner of Customs, Lucknow, during his examination and cross examination, had also confirmed his reports submitted during the investigation.
(iv). The IO in his report has himself concluded that there is only contradiction in the statement regarding the possession of the file. However, IO further concluded that if there is any difference in the version it cannot be concluded that there is something wrong. I0 has failed to appreciate the principle of preponderance of probability applicable in the departmental inquiry.
(v) At the time of incidence, the Officer was posted at Lucknow Airport. His participation itself, in the interception and search operation of two persons at Varanasi division is ultravires and is indicative of his malafide. The defence of the CO that he has conducted the operation after getting direction of the Divisional AC is not tenable as no document for the same was produced on the floor of inquiry. No orders about the competency of Divisional AC to engage an Officer in 10 | P a g e such operations even after the transfer out from the Unit is produced on the floor of inquiry.
(vi) It is the fact that the case file could not be produced during the visit of Shri K.P. Singh, then Addl.Commr. on 09.07.2015. IO has not given sufficient analysis about defacing of file opening register.
(vii) Shri K.P. Singh, then Addl.Commr. during his examination has reiterated the fact in his report dated 10.07.2015 (E 6). CO has refused cross-examining him.
(viii) The observations of CVO, CBIC that no panchnama was drawn, no procedure was followed, no file was opened and to cover up the misconduct, he tried to falsify the records as well, hence, the misdemeanours of the officer are grave in nature and he is liable for imposition of Major Penalty under Rule 11 of CCS (CCA) Rules seems to be cogent.
3. In view of the above, the Commission, in disagreement with DA and in agreement with CVO, CBIC, would advise for imposition of suitable major penalty on Shri Sanjay Tiwari, Supdt."
15. It further appears that after receiving the second stage advice, the Disciplinary Authority passed the order dated 04.03.2020 imposing the punishment upon the applicant. Appeal was preferred before the Appellate Authority against the order of the Disciplinary Authority and the Appellate Authority considering the facts and circumstances of the case, upheld the order passed by the Disciplinary Authority. Now the question is whether charges leveled against the applicant have been proved during the enquiry or not, whether proper opportunity of hearing was given to the applicant or not, procedure prescribed for conducting inquiry has been followed or not and it is also to be seen as to whether the second stage advise is based on evidence or not. It is clarified that in disciplinary proceedings / domestic inquiry strict rule of evidence is not applicable. Only preponderance of probability has to be taken into consideration to scrutinize the allegations leveled against the delinquent employee. It is also a settled proposition of law that preponderance of probability should be based on some evidence. Mere suspicion cannot take place as evidence if the same is not supported with other evidence. An employee cannot be punished on 11 | P a g e the basis of inadmissible evidence. Evidence to be relied upon in the regular inquiry must have been proved in accordance with rule and law.
16. It may be mentioned at this stage that proper procedure for recording the evidence in the inquiry is that the witnesses' examination in chief will be recorded at first and thereafter opportunity will be given to the charged official for cross examination. If there is necessity, the presenting officer may also cross examine the witnesses concerned. Previous statements recorded during the fact finding inquiry may be placed before the witness concerned for confrontation. In the present matter, in utter violation of the aforesaid procedure, the inquiry Officer without recording the examination in chief, simply on the basis of previous statements, recorded during the fact-finding inquiry, proceeded to record the evidence and directed the charged official to cross examine.
17. Inquiry report also reveals that before cross examination of the prosecution witnesses the presenting officer has examined the charged official putting before him the questions which can be seen from the inquiry report itself. Examination of C.O. at this stage is not permissible. For what purposes, C.O. was examined by the P.O. at this stage is not clear whereas no prosecution evidence at all had been recorded by the C.O. as yet. C.O. could examine himself / herself at the stage of Defence Evidence. Examination of CO at this stage does not come in the stage of Rule 14(18) of CCS (CCA) Rules. In the inquiry report, it is also mentioned that the charged official was examined under Sub Rule 18 of Rule 14 of CCS (CCA) rules separately. Statement of the C.O. recorded in the inquiry report at this stage itself reveals that no incriminating material has been placed before the CO which has been relied upon by the CVO / Vigilance. Letter on the report of CVO after second stage advice has been placed before the delinquent employee to explain. Simply, it is mentioned in the enquiry report that the charged official stated under Rule 14 Sub Rule 18 of the CCS (CCA) Rules that his previous statement recorded as charged official may be treated as a statement. The procedure adopted by the IO cannot be said to be the compliance 12 | P a g e of the provision of rule 14 Sub Rule 18 of the CCS (CCA) Rules. IO has not complied with the provision of Rule 14 (18) of CCS (CCA) Rules despite the fact that it was mandatory. All the incriminating evidence relied upon by the CVO / Vigilance ought to have been placed before the C.O. for his explanation at the stage of Rule 14(18) of CCS (CCA) Rules, 1965 itself. Thus, in our considered view on this score, the impugned orders become illegal and vitiated.
18. PW 1 KP Singh is not the eyewitness. No complaint has been made on the part of the person from whose possession the Indian currency is said to have been recovered. They were also not examined during the inquiry, although they were essential witnesses. The person in whose presence Indian currency said to have been recovered from the possession of Rupesh Seth and Vivek Agarwal were handed over to them have also not been examined. If they had been examined, the truth would have surfaced. Statement of K P Singh the prosecution witness is based on rumour as well as conjectures and surmises. As regards to prosecution witness namely Himanshu Gupta, his statement is also based on hearsay as well as report submitted by KP Singh. Since statement of K P Singh itself is based on rumor, thus no responsibility could be fastened upon the applicant on the basis of the statement of witness Himanshu Gupta. As far as statement of witness D K Mishra is concerned, he has not supported the prosecution version. Allegation leveled against the charged official is not supported by the statement of this witness. Rather he has stated that he received the information from the charged official thereafter he tried to contact other officials, and also directed the charge official to reach on the spot. As far as the statement of witness Keshav Singh, the prosecution witness is concerned, he claims himself to be present on the spot, but from his statement, it is not clear that how much money was recovered. Only fact is made clear from the statement of this Witness that no Panchnama was prepared at the time of search made by the charged official. Submission of learned counsel for the applicant is that since no incriminating article were seized, therefore, there was no necessity to prepare the Panchnama. It may be mentioned here that if search is 13 | P a g e made, then it is always necessary to prepare the Panchnama (search memo).
19. Now we come to the second allegations level against the applicant regarding the production of Case file before the ADC during his visit to the division office customs Varanasi on 9 July 2015 is concerned, the applicant was not the custodian of the case file. If the case file has not been placed before the ADC during his visit, the charged official cannot be held liable for the same act as he was not the custodian. Similarly, the third allegation regarding defacing of the file opening register is concerned, it is pertinent to mention that since the charged official was not the custodian of the file, this allegation is also unsustainable. As far as allegation number four regarding making of search exceeding his territorial jurisdiction is concerned, it is clear from the evidence that initially the charged official informed to Sri DK Mishra, who was the additional commissioner and has admitted that said information was received to him and he has directed the C.O. to reach on the spot for making the search. Thus, this fact is also not sufficient to punish the applicant. Allegation number five is co-related to the allegation number one regarding preparation of Panchnama. In the facts and circumstances of the case, preparation of Panchnama was must. As regards to the allegation number six regarding major contradiction in the statement of witness DK Mishra, and Sanjay Kumar Tiwari C.O. i.e., the applicant regarding the whereabouts of the file is concerned, we are of the view that the applicant who was not the custodian of the case file after handing it over to the concerned office / official, cannot be attributed with any such liability.
20. It is also pertinent to record that the report of IO dated 28.08.2018 along with the observation of DA was forwarded to CO and the CO has submitted his agreement with the same. The DA after considering the IR, the reply of the CO and other records, opined that charges against CO are sustainable and second stage advice of CVC was sought by letter dated 25.10.2018.
CVC advised imposition of major penalty in disagreement with the DA and in agreement with CVO, advised for imposition of major 14 | P a g e penalty. Copy of the 02nd level advice was communicated to CO in letter dated 24.10.2019. Here it is pertinent to note that DA has not applied his mind on the advice given by CVC and without his note of dissent wanted comments from IO and CO.
The reply submitted by CO has not been accepted and DA has punished the CO. The reason for agreeing with the IO report at initial stage and subsequently not agreeing with the report of IO is not mentioned. No disagreement note has been prepared at initial stage by the D.A. before supplying it to the C.O. It is a fact that advice of the CVC is advisory and DA has to make up his mind to accept it or reject. Getting remarks of the IO is extraneous.
21. We have also minutely analyzed the CVO report on which basis the disciplinary authority has imposed punishment upon the applicant. A perusal of the CVO report also reveals that incriminating material has been cited to form the opinion. First opinion, regarding preparation of Panchnama seems to be acceptable, but other opinions formed by the CVO are not based on admissible evidence. Since no procedure as prescribed for conducting the regular inquiry has been followed, the CVO has relied upon the inadmissible evidence and the provisions provided under Rule 14 of Sub Rule 18 of the CCA (CCA) Rules have not been adhered to, the inquiry was not proper and fair as aforesaid provisions were not followed during the course of proceedings, thus we are of the of the view that impugned orders are not sustainable. There is also the violation of principle of natural justice.
22. Therefore, we are of the view that the original application having merit is liable to be allowed and impugned orders passed by the disciplinary authority and appellate authority are liable to be set aside.
23. Accordingly, the OA is allowed and impugned orders dated 04.03.2020 and 04.01.2021 are quashed and set aside. Respondents are directed to give all the consequential benefits to the applicant within a period of three months from the date of receipt of certified 15 | P a g e copy of the order. It is also recorded that respondents will be at liberty to conduct a fresh inquiry in the matter, if they advise so but in accordance with stipulated rules and provisions and carefully adhering to the observations as have been drawn in the instant judgment. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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