Central Administrative Tribunal - Delhi
Shri Rakesh Kumar vs Union Of India Through on 22 December, 2009
Central Administrative Tribunal Principal Bench OA No.1876/2008 New Delhi, this the 22nd day of December, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Rakesh Kumar, S/o Shri O.P. Gupta, (IFS : 1972) R/o C-II/42, Safdarjung Development Area New Delhi. Applicant. (By Advocate: Sh. Mukul Gupta) Versus Union of India through 1. The Foreign Secretary/Secretary to the Ministry of External Affairs, South Block, Central Secretariat, New Delhi-10001. Respondent (By Advocate : Sh. A. K. Bhardwaj) : ORDER : Dr. Ramesh Chandra Panda, Member (A):
Shri Rakesh Kumar belonging to the Indian Foreign Service (IFS) of 1972 batch, the Applicant herein, has sought a direction of this Tribunal against the Respondents to keep in abeyance the enquiry ordered by the Respondents vide Memorandum dated 01.04.2008 (Annexure A-4), till the completion of the trial of the Applicant pending with the Special Court on the Chargesheet No.12/2007 dated 24.12.2007 filed by the Central Bureau of Investigation (CBI) to prosecute him on the alleged offences U/S 120-B IPC, read with Section 420, 468 and 471 of the Indian Penal Code and U/S 13(1)(d) of Prevention of Corruption Act, 1988. The Applicant vide his representation dated 13.05.2008 prayed the Disciplinary Authority to keep disciplinary enquiry in abeyance during the pendency of his criminal prosecution before the Special Court, New Delhi, and he was communicated a confidential letter dated 02.07.2008 (Annexure A-2) informing him that the Disciplinary Authority having considered his representation, has decided to institute an oral inquiry by appointing an Inquiry Authority and a Presenting Officer. Having been aggrieved by this order, he has sought the following relief from the Tribunal :-
1. The applicant prays that without prejudice to his right to pray for quashing of the above said Inquiry against him through appropriate proceedings, the Inquiry under the CCS (CCA) Rules, 1965 proposed against him vide Memorandum No.Q/Vig/843/24/2007, Ministry of External Affairs (Vigilance Unit) dated April 01, 2008, annexed herewith an Annexure A-4 be kept in abeyance, in the interest of justice, till the completion of his trial by the Criminal Court on the Charge Sheet No.12 of 2007, dated 24.12.2007, annexed herewith as Annexure A-3 filed by the Central Bureau of Investigation to prosecute him for offences u/s 120 B IPC read with S.420, 468 and 471 of the Indian Penal Code and u/s 13(2) read with sub-section 13(1)(d) of the Prevision of Corruption Act, 1988 and substantive offences under the said Act;
2. The applicant further prays that the Annexure A-5, being the Order dated 02.07.2008, appointing the Presenting Officer and the Inquiry Officer be also quashed or set aside.
3. The applicant further prays that any other relief or order deserved by the applicant in the interest of justice may also be granted to or allowed in his favour.
2. When the case came up for admission on 29.08.2008, an issue was posed to know as to what are the highly complicated questions of law and facts involved in the case that the criminal prosecution and the Disciplinary Proceedings should not go on simultaneously? Confronted with such a query, the counsel for Applicant sought for adjournment. When the matter came up on 10.02.2009, the counsel for Applicant prayed for interim directions for staying the Departmental Proceedings initiated against the Applicant. Having heard the rival contentions in the case and taking into account the facts and circumstances of the case, the stay of the Departmental Proceedings was granted till the next date of hearing and subsequently, the said stay has been continuing. The OA was finally heard by us on 17.12.2009.
3. We may briefly state the facts of the case. The Applicant while working as Director General (DG), Indian Council for Cultural Relations (ICCR), is alleged to have facilitated the empanelment of certain cultural group called Mehak Punjab Di, and illegal trafficking of nine individuals to Germany under the guise of the said cultural group by misusing his official position for extraneous consideration. It is also stated that the Applicant entered into a criminal conspiracy with some persons with a motive to cheat ICCR by way of sending such nine persons to Germany on Government expenses. It is also alleged that he exercised undue influence on the Members of the Experts Sub Committee for empanelment of the said cultural group (Mehak Punjab Di) though it was noted that the performance of the Group was not up to the mark. Besides he is alleged to have tampered with the official file containing the Minutes of the Experts Sub Committee by removing the note dated 24.08.2005 given by Shri M.S. Grover, the then DDG (P) for approval of President, ICCR and substituting the same with a note dated 25.08.2005 of Shri R.M. Aggarwal, the then DDG. The Applicant also sent a letter dated 05.09.2005 to the Joint Secretary, Europe I Division seeking political clearance for the said cultural group for their visit to Germany and other neighbouring countries whereas the said group was slated to visit Germany only. It is also alleged that the Applicant visited Ludhiana on 01.09.2005-02.09.2005 to avail hospitality of Shri Hargulab Singh and Shi Shiv Kumar Sharma, on the pretext of watching the performance of the said cultural group and sexually exploited a lady artist. The CBI has instituted a criminal case against him and others and the same has been taken cognizance of in the charge sheet No.12 of 2007. The Final Report under Section 173 CR C.P.C. has been filed (Annexure-A3). On the same set of allegations and charges, the Respondent has initiated a parallel disciplinary proceeding with eight articles of charges vide the Memorandum dated 1.4.2008 (Annexure-A4) and appointed Shri B. S. Negi, Commissioner for Departmental Inquiry, Central Vigilance Commission as the Inquiry Authority (IA) vide order dated 2.7.2008 (Annexure-A5) and Shri Manoj Pangarkar, Addl. S.P. CBI as the Presenting Officer vide order dated 2.7.2008 (Page 120). The Applicant vide his representation dated 14.7.2008 (Annexure-A6) addressed to the President of India conveyed his objection to the appointment of the Presenting Officer (PO) and prayed to appoint a neutral person preferable an IFS Officer as a Presenting Officer; and in his letter dated 21.7.2008 (Annexure-A7) addressed to Foreign Secretary has objected to the appointment of Shri B. S. Negi as IA on the issue of IAs status vis a vis Applicants. Government in its reply dated 6.8.2008 (Annexure-A9) rejected the request of the Applicant to change the IA and PO. The Applicant in his representation dated 13.5.2008 (Annexure-A1) requested the Respondent to keep the Disciplinary Inquiry in abeyance during the pendency of his criminal prosecution before the Special Court. Vide order dated 2.7.2008 (Annexure-A2) the request of the Applicant was declined and resultantly he impugning the said order has approached this Tribunal in this OA.
4. Shri Mukul Gupta, the learned Counsel for the Applicant, opened his argument drawing our attention to the order of the Respondent dated 2.7.2008 rejecting a detailed representation dated 13.5.2008 given by the Applicant praying to keep the departmental/Disciplinary Inquiry in abeyance till the finalization of the criminal prosecution pending against him in the Special Court on the basis of same facts and charges; and contended that the order dated 2.7.2008 being a non-speaking and non-reasoned order, was fit to be quashed and set aside. He also contended that the case has complex issues of facts and law for which the disciplinary proceeding should be kept in abeyance.
5. Per contra, Shri A. K. Bhardwaj, the learned Counsel for the Respondent drew our attention to the Annexure R-5 (Pages 171-172) to state that the Additional Legal Adviser of the Department of Legal Affair after analyzing the legal position in the subject of whether departmental proceedings could be continued when the criminal proceeding was pending in a case, opined that no complicated questions of law and fact appeared to be involved in the Applicants disciplinary proceedings and as such, the departmental proceeding could continue against him. On receipt of the said advice, the competent authority has rejected the representation of the Applicant.
6. Having heard the rival contentions and perused the pleading, we consider it necessary to examine the impugned order dated 2.7.2008 as to whether it was non-speaking and non-reasoned order?
7. The Applicant in a 3 page representation dated 13.5.2008 to the President of India through Foreign Secretary raised many grounds in support of his plea. On receipt of the same, the Respondent passed the following order on 2.7.2008 and also appointed the IA and PO on the same day :-
Confidential No.Q/Vig/843/24/2007 02 July 2008 Dear Sir, Please refer to your letter/written statement of defence dated 13.5.2008 to the charge Memorandum of even number of April 01, 2008.
2. The Disciplinary Authority has considered your representation and has decided to institute an oral inquiry by appointing an Inquiring Authority and a Presenting Officer. A copy of the orders appointing Inquiring Authority and Presenting Officer are enclosed herewith.
With Kind regards.
Yours sincerely, (Debnath Shaw) Shri Rakesh Kumar C-2/42, Safdarjung Development Area, New Delhi.
8. The perusal of the order dated 2.7.2008 conveyed to the Applicant shows that there is no discussion about the points raised by the Applicant nor the order shows how the conclusion has been arrived at. The Counsel for the Respondent pleaded that the Additional Legal Adviser was consulted, who gave his opinion, on perusal of which does not reveal the analysis of the points raised by the Applicant. The legal advice brings out the settled legal position on the issue and abruptly comes to the conclusion. In our view, the said advice has not addressed the points raised by the Applicant in his representation.
9. It is trite that the Disciplinary Authority is a quasi-judicial Authority and his order is subject to the subjective satisfaction and the said satisfaction must be based on objective analysis without being biased or influenced by any other aspect. In the present case, the order does not show any application of mind nor that shows any analysis on the points of the Applicants plea in his representation. As observed by the Honourable Apex Court in Jagdamba Devi Versus Hem Ram and Ors. [2008-3-SCC-509] Reasons are live links between the mind of the decision taker to the controversy in question and the decision arrived at. Reasons substitute subjectivity by objectivity. The Honourable Supreme Court in the case of Raj Kishore Jha versus State of Bihar and Ors. [(2003) 11 SCC 519] reiterated in Ram Phal Vs. State of Haryana [2009-3-SCC-258] decided on 6.2.2009 has also stated:
Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless.
10. Having gone through the impugned order, in our considered view, the same cannot stand to logic for the reasons that in the representation the Applicant had raised several points in support of his claims but without examining any of the issues raised and canvassed, the Disciplinary Authority by non speaking and non-reasoned order, has conveyed the institution of the oral enquiry. In our view, this is not the way a quasi-judicial authority should pass an order. The duty of the Disciplinary Authority is to give reasons for coming to a decisive decision. After going through the impugned order, we are of the considered view that the Disciplinary Authority ought to have passed a reasoned and speaking order instead of saying that he has considered your representation and has decided to institute an oral inquiry. Accordingly, we are of the view that the Disciplinary Authority while deciding the representation of the Applicant had not applied his mind and, therefore, the impugned order of the Disciplinary Authority is liable to be set aside and the matter should be sent back to him for disposal afresh in accordance with law.
11. For the reasons aforesaid, without going into the merits of the case and other grounds raised in the OA, the impugned order being bald, unreasoned and non-speaking order is quashed and set aside and the case is remanded back to the Disciplinary Authority for fresh decision on the representation of the Applicant in accordance with law after giving an opportunity of hearing to the Applicant. It is expected that the Disciplinary Authority shall pass a reasoned and speaking order on the representation of the Applicant within a period of 3 months. We also direct that the Disciplinary Authority would not take any action in the Disciplinary case till the decision is taken on the Applicants representation. In case the Applicant is aggrieved by such a decision of the Disciplinary Authority, he is granted liberty to challenge the same in appropriate forum as per law.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
/pj/