Central Administrative Tribunal - Delhi
Mr. S.K. Maitra vs India Tourism Development Corporation ... on 18 July, 2013
Central Administrative Tribunal Principal Bench OA No. 1470/2011 Reserved on: 15.03.2013 Pronounced on: 18.07.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Mr. Birendra Kumar Sinha, Member (A) Mr. S.K. Maitra S/o late Mr. T.K. Maitra, Resident of 94, Charak Sadan, Vikaspuri, New Delhi. Applicant (By Advocate: Sh. Anirudh Kumar Mudgil for Sh. Prashant Mehandiratta) Versus India Tourism Development Corporation Limited (A Company incorporated under the Companies Act), Union of India through Having its registered office at Scope Complex, Core-8, 6th Floor, 7, Lodhi Road, New Delhi 110 003 through its Chairman cum Managing Director cum Competent Disciplinary Authority) Respondents (By Advocate: Sh. Ujjawal Kumar Jha) O R D E R Mr. Birendra Kumar Sinha, Member (A):
The applicant, by virtue of the instant Original Application, challenges the impugned order dated 04.04.2011 whereby a major penalty of dismissal from service has been imposed upon him. He further challenges the Memorandum along with Enquiry Report dated 14.01.2011 and the Memorandum of Chargesheet dated 28.05.2009 whereby the enquiry had been held under ITDC (Conduct, Discipline & Appeal) Rules, 2002 against him as being arbitrary, illegal, malafide, violative of the constitutional rights and principle of natural justice and having been issued in colourable exercise of powers.
2. The facts of the case, in brief, are that the applicant joined the respondent-organization as Deputy Manager (Legal)/General Manager (Legal) and was subsequently elevated to the post of Vice President (Legal). The cause of action is routed through a plot of land measuring 8566 sq. yards situated at Naraina Industrial Area, Phase-I (hereinafter referred to as leased premises). Admittedly, the instant land belongs to Delhi Development Authority in perpetuity from 06.11.1968 for the purpose of allocation and operation of workshop-cum-depot on this plot of land. On 09.09.1988, the leased premises were further sub-leased with the consent of the original lesser to M/s. Maruti Udyog Limited (hereinafter referred to as sub-lessee) for a period of three years and was further renewed twice for a period of three years each subject to enhancement of monthly rental, not exceeding 20%, subject to mutual consent of the parties. After the expiry of the sub-lease for a period of nine years, further renewals were to be on terms and conditions as orally agreed amongst the parties. However, payment of rent was @ Rs.1,25,000/- per month subject to enhancements provided as above. The lease period under the above agreement expired on 08.09.1997. On 20.11.1998, the respondent organization and the sub lessee entered into another lease agreement whereby payment of monthly rental of Rs.4,00,000/- was agreed to be paid commencing from September, 1997 upto September, 2000 in addition to payment of property tax liability to the tune of Rs.1,62,710 per annum plus charges relating to electricity, water and for using as automobile workshop and depot. Clause (9) of the said Agreement, the sub lessee was permitted to make such improvements, additions and temporary alternations as may be required for the beneficial enjoyment of the demises premises but was prohibited to erect major structural alterations without the prior consent of the lesser (Annexure A-3).
3. Even after the expiry of the agreement on 08.09.2000, the sub lessee continued to pay Rs.4,00,000/- per month as lease rent to the respondent organization while the proposal for outright sale of the leased premises along with a proposal of increased rent was considered. The option of the outright sale having been ruled out for a number of reasons, the respondent-organization set up a High Powered Committee (HPC) for carrying out the negotiations with the sub lessee for extension of lease period. The HPC met on 21.03.2001 with M.S. Manchanda, VP (H-ATT), P.P. Singh, GM(F&A), C. Stephen (CS), Kuldip Verma, DGM(ATT), the officials of the sub-lessee and the applicant in the capacity of DGM(Legal). Since the sub-lessee was making full use of the leased premises, M.S. Manchanda offered them a uniform rate of Rs.20/- per sq. feet per month for the total area i.e. 77,094 sq.ft. for a period of three years with an extension of three years with 20% enhancement after three years. (Annexure A-4). The same note goes ahead to mention that a final notice had been given in September, 2001 to sub-lessee and in case they failed to vacate the premises by the given date, the legal alternative would be to file a case for Eviction before the Estate Officer, ITDC. However, since the judicial process is likely to take some time, delaying the proposed sale/transfer of the land inordinately, if would be available to avail of the judicial process as last resort. The letter of the General Manager (ATT) dated 21.08.2001 informs that the prices of industrial plot have risen on account of an order by the Honble Supreme Court to shirt the industrial areas out of the city. Hence, the respondent organization has quoted a monthly rent of Rs.20/- sq. ft. per month for a total area of 77894 sq. ft for a period of three years with an extension of 3 years with 20% enhancement after three years (Annexure A-6). In response thereof, the sub lessee informed the applicant giving a reference to the minutes of the meeting held on 20.01.2001 saying that in the past, during our continuation of 9 years, the rent has been increased @ 20% after every 3 years. 20% hike of rent was offered during discussions but the same was not agreed upon. Hence, we offered maximum 40% hike i.e. the rent would be enhanced from 4.0 lakhs to 5.6 lakhs per month in the new lease agreement to be executed for a period of three years w.e.f. September, 2000 (Annexure A-7).
4. Following this offer, a meeting was held between the Chairman-cum-MD of the respondent-organization and the MD of the sub lessee i.e. MUL on 12.01.2002, which was inter alia attended, in addition to the CMD of the respondent organization, by one Dr. A.B. Aggarwal, Director (Finance) and the as General Manager (Legal). It was agreed therein that the lease agreement which expired on 08.09.2000 would be renewed for a further period of 9 years and another period of 9 years, thereafter, subject to enhancement of rent @ 20% per annum and that the sub lessee would pay rent for 9 years in advance at the time of execution of the lease agreement. The sub lessee organization shall further pay the rent from September, 2000 at the advanced rate @ 20% as agreed upon at the time of execution of the lease agreement. A copy of this letter was sent by the applicant to the sub lessee organization seeking confirmation of the terms and conditions and also the date of execution of the lease agreement. It is significant to note that this was a draft agreement in which one of the clauses of the agreement stated is as under:-
WHEREAS both the parties have desired and agreed to the renewal of the arrangement for the further period of Nine years commencing from________, 2002 and expiring on__________, 2011 and another period of Nine years thereafter from_____________, 2002 to_____, 2020 subject to enhancement of the rent @ 20% p.a. Another clause no.11 of the same Agreement further provided The Lessee shall permit the sub-lessee to make such improvements for permanent structure, additions and alterations as may be required for the beneficial enjoyment of the demised premises. The sub-Lessee shall however not make any major structural alterations without seeking prior consent of the Lessee in writing. Clause 16 of the draft agreement provided The lease period will come to an end on_____________. It is hereby further agreed and declared between the parties here to that the sub-Lessee shall be entitled to a renewal of sub-lease for a further period of nine years on enhancement of rent @ 20% p.a. As against this, an agreement was executed with the sub lessee organization on 19.02.2002. The OA of the applicant in its para 13 provides that subsequently the abovestated sub-lease agreement was executed on 19.02.2002 and to the utter shock and dismay of the applicant, there were certain variations from the draft agreement drafted, vetted and circulated by him. Upon enquiry, the applicant was informed that senior officials of the respondent organization in their commercial wisdom have made certain changes in the draft agreement drafted and circulated by him and since there were no commercial issues involved, the opinion of the applicant was not even sought. Thereafter, to the utter shock and dismay of the applicant, the term of the sub lease was renewed for a further period of 9 years commencing from 01.02.2002 to 31.01.2011, and another period of nine years thereafter, from 01.02.2011 to 31.01.2020, subject to enhancement of rent @ 20% per three years, which was against the agreed discussion of enhancement of rent @ 20% p.a. There were clear 11 discrepancies found between the draft agreement and the final agreement most notable from which was in respect of clause 16 of the draft agreement where subject to enhancement @ 20% per three years. Similarly, in clause 11 of the draft agreement, the sub lessee has been permitted to make such improvement of permanent alterations and additions and temporary alterations as may be required for the beneficial enjoyment of the leased premises without there being any requirement of taking prior approval. The applicant was only a testifying witnesses of the agreement which was executed by one Naveen Bhatnagar, Company Secretary of the respondent organization. Subsequently, there is communication on record from the applicant dated February 27, 2002 immediately following the execution of the agreement, to the other executants of the agreement on part of the sub lessee informing as under:-
You will kindly recall that during discussions held between the officials of ITDC and Maruti Udyog Ltd. and also the discussions that the C&MD, ITDC had with MD, Maruti Udyog Ltd., it was agreed that monthly rent on the basis of 20% hike shall be effective from 8th September, 2000 which comes to Rs. 4.80 lakhs per month. It is pertinent to mention that the rent as per previous lease agreement was to the tune of Rs.4,00 lakhs per month and the same was being paid by you and as such on 20% hike the amount of monthly rent comes to Rs.4.80 lakhs w.e.f. 8.9.2000.
In view of the above, the amount mentioned in the sub-lease agreement as Rs.3,57,407/- should have been mentioned as Rs.4,80,000/- per month. It is pertinent to mention that immediately after execution of the sub-lease agreement, we had taken up the matter with Mr. Murmo, Areas General Manager, Narain Workship for necessary clarification. However, till date we have not received the same.
We request you to kindly look into the matter and issue necessary corrigendum indicating the rent of Rs. 4.80 lakhs per month with 20% hike per three years and release the balance payment which accrues to ITD. It may be mentioned that it is extr5emely urgent in view of the Government Audit queries.
5. On March 6, 2002, the applicant again informed the VP (HC), Director (Finance), VP (F&A) with a copy to the General Manager (Accounts) for urgent action, which reads as under:-
The net present value calculation @ 11% interest per annum has been provided by M/s. Maruti Udyog Ltd. in support of up front payment of Rs.3,07,45,494 vide Cheque No.193545 dated 18.2.2002 drawn on State Bank of Travancore, Karol Bagh, New Delhi as advance rent for the period from 1.2.2002 to 31.1.2011 after deduction of Tax at source @ 20.4% as per Section 194-I of the Income Tax Act. However, since the earlier agreement expired on 8.9.2000, the arrears of rent at the revised rate from 9.9.2000 to 31.1.2002 is to be received from the MUL.
It is mentioned that in terms of para 2 of the sub-lease agreement dated 19.2.2002, a sum of Rs.3,57,407/- per month will be adjusted as rent against the up front payment received by ITDC from MUL.
A copy of the Net Present Value Calculations submitted by MUL is placed below for kind perusal and verification by the Corporate Accounts Department. Another agreement was executed on 02.03.2002 clarifying that the monthly rent shall be Rs. 4,80,000/- which has been inadvertently stated to be as Rs.3,57,638.82 (Annexure A-14). On 16.04.2002, the applicant received a cheque of Rs.12,28,779/- towards arrears of rent for the period from 09.09.2000 till 31.01.2002 as per the agreement amongst the parties (Annexure A-15). On 22.02.2003, respondent organization received a request for consideration of a basement which was examined and recommended by the applicant subject to condition that all such constructions shall be at the cost of the sub lessee and on expiry of lease, the land shall be restored to its original shape and delivered the physical possession of the same to the respondent organization. On March 3, 2003, the applicant wrote a note, subject to the above conditions, to VP (HR) for conveying the approval of the competent authority pertaining to the proposal for construction of basement to the sub lessee. On 25.03.2003, the applicant requested the Company Secretary to sign a Special Power of Attorney in place marked Executant and affix his stamp (Annexure A-18). On 27.03.2003, the applicant suggested an enhancement of rent in clause 6 as under:-
As regards Clause 6, the undersigned suggests the following additions to the para after the wordsagreement dated 19.02.2002 between the partiesand the rent would stand suitably increased after the completion of the present approved project or any other project that may be carried out by the Sub-lessee with the consent of the lessee during the tenure of the lease Agreement. VP (HR) may kindly peruse & consider the suggested additions before the supplementary Agreement is forwarded to M/s Maruti for finalization & execution. The same was conveyed to sub lessee organization by the applicant, vide his letter dated April 1, 2003 And the rent would stand suitable increased after the completion of the present approved project or any other project that may be carried out by the sub-Lease with the consent of the Lease during the tenure of the Lease Agreement. Following this, there are several occasions when the applicant was involved either in vetting or processing the proposals relating to the leased premises. On 25.04.2008, he informed that in reference to a Memorandum that he was not in a position to analysis and offer his comments on the reference as the related papers had been taken away by the internal vigilance department (Annexure A-25). Subsequently, there was a complaint from the Workers Union dated 01.07.2008 making allegations against one P.P. Singh, General Manager (Finance) 4. In spite of all these MUL was finally able to secure the lease at a low rental of Rs. 3.57 lakhs per month. Not only this, even as per earlier lease agreement and in the present lease agreement there was a clause 11 as per which the leases (MUL) would not make any alternations to the ITDC existing structure without the written permission of ITDC. But due to lot of money as bribe was paid to senior officials of ITDC and these officers of ITDC tempered with the lease document subsequently and connected it to permit MUL to alter/make fresh constructions in the plot without consulting ITDC, close scrutiny of the documents and other circumstantial evidence will prove that huge amount has been taken by some senor officials of ITDC from MUL and prime property worth more than Rs.100 crores today has been given on long term up to 2020 lease on throw away price. For such important decision Board approval was required which was not taken. A similar complaint was filed to CVC vide letter dated 30.07.2008 seeking investigation into the role of P.P. Singh, General Manager (Finance) (Annexure A-27). On 18.12.2008, P.P. Singh, GM (Fin.) submitted a note referring to a discussion with the CVO summarizing the offences and giving a list of documents requested the CVO to look into the case personally and fix responsibility (Annexure A-28). On 28.05.2009, the applicant was served with a Memorandum enclosing therewith five Articles of Charge altogether as have been detailed in Annexure 29 of the OA. The applicant submitted his detailed explanation to the charges. However, the departmental proceeding was conducted and the enquiry officer, who was from outside the department, on examination of the witnesses found the charges substantiated to varying decrees as per the chart below:-
Article No. Charge Main finding I The sublease agreement with MUL expired on 08.09.2000. During that period ITDC was going through serious financial crunch, to overcome the same ITDC was considering the proposal of out right sale as well as hike in the rent for the entire area of Naraina Land. The proposal of outright sale could not be materialized as fixed presumptive price o f DDA and Land & Dev Authorities could not be ascertained. Therefore for hike in the rent high power committee was formed, which held meeting with officials of MUL on 21.03.2001 and as per minutes of meeting ITDC offered a very special considered uniform rate of Rs. 20 per sq ft per month for the total area i.e. 77094 sq ft for a period of 3 years with 20% enhancement after every 3 years and conveyed to MUL vide letter dated 23.3.2001. In response MUL submitted a counter offer of 40% hike in the existing monthly rent for Rs. 4.00 lakhs to Rs. 5.6 lakhs with enhancement after every three years by addressing a letter dated 19.12.01 to GM(L) which was received in Legal Division vide Dy No. 3517 dated 21.12.01. Finally a decision was taken in the joint meeting held on 12.01.02 wherein both head of the organizations i.e. ITDC & MUL were present and in this meeting MUL interalia agreed to hike the rent annually @ 20% including advance payment of rent for 9 years. Minutes of the meeting containing the above decision were drawn and signed by Sh. Maitra, the then GM(L) on 13.01.02. But Sh. Maitra while drafting, vetting & witnessing the agreement dted 19.2.02 deviated from the decision taken in the meeting and instead of increase of rent by 20% per year it was mentioned increase of 20% per three years in connivance with Sh. Naveen Bhatnagar, the then Asstt. Co. Secy, to give undue benefits to MUL which caused huge loss to ITDC to the tune of Rs. 26813248/- upto March 2007, Rs. 157694576/- upto Dec 2008 and Rs.3490473576/- upto 31.1.2020 (including proportionate increase in rent for additional construction from 1.4.2007).
After considering all the relevant evidences on record and also taking into consideration all relevant factors as brought out in detailed analysis hereinabove, I hold that the charge that Sh.Maitra while drafting, vetting and witnessing the Agreement dated 19.02.2002 deviated from the decision taken in the meeting held on 12.01.2002 and instead of mentioning of increase of rent by 20% per year in the agreement executed on 19.02.2002, it was mentioned increase of 20% per three years thereby causing huge loss to the Corporation, stands established. However, the allegations of CSOs having connived with the Assistant Company Secretary could not be substantiated as apparently he might have signed the Sub Lease Agreement while being in the company of the then GM(Legal), ITDC, in good faith. Further, the charge about financial loss alleged to have been caused owing to non-payment of proportionate increase in rent on account of additional space created by M/s. MUL by way of additional construction in the workshop has not been taken as a part of Article I. Article I of the charge Memorandum is partly proved.
II Sh. SK Maitra in collusion with Sh. Naveen Bhatnagar, the then Asst Co Secy, mischievously and with ulterior motive drafted / vetted/ witnessed the execution of agreement dated 19.02.2002 which was completely prejudicial to the interest of ITD as following irregularities were committed with regard to above said agreement.
I. In clause 11 mandatory requirement of permission of ITDC for making major structural alternations was deleted;
II. Wrongly inserted in clause 11 modification which provides that ITDC shall permit MUL to make improvement of permanent structure;
III. Deliberately mentioned in clause 2 of the agreement the low figure of Rs. 3.67 lacs monthly adjustable rent without finance concurrence which was much less than Rs. 4.80 lacs p.m. being the existing rent;
IV. Sh. Maitra did not obtain the approval of Board of Directors for execution of agreement dated 19.2.2002 and for amendment, modification, deletion addition made therein as it was mandatory to obtain the approval; & V. Accepted the cheque No.193545 dated 18.02.2002 for Rs.30739494 after TDS given by MUL in respect of advance rent for 9 years and calculation thereof has been sent by Sh. Murmu, AGM of MUL to GM(L) who did not forward to Accounts Div for its checking and authentication before execution of agreement dated 19.2.202.
In view of the detailed analysis of various issues comprising Article II of the charge it is established that the CSO deliberately managed the execution of sub lease agreement on 19.02.2002 in such a manner as to facilitate to incorporate lesser amount of monthly rent in clause 2 of the Agreement in contravention of the decision taken in the meeting held on 12.01.2002. In the process, the CSO intentionally did not work out and indicate the correct amount of rent in the draft agreement and also did not check the unusual and unexpected figure of Rs.3,57,407/- as against the correct figure of Rs.4.8 lacs before execution of the agreement on 19.02.2002. He also did not raise any objection on the net average value calculation sheet which M/s. MUL appears to have prepared before hand by levying 11% interest on the advance amount though levying of any interest on the advance amount was not a part of the decision taken in the meeting held on 12.01.2002. Further, the CSO simply forwarded the calculation sheet to corporate account division for verification without pointing out the fact that the charging of 11% interest was not in order. The plain reading of his note dated 06.03.2002 (Ex.D-10) further goes to prove that charging of 11% interest on the advance payment by the MUL had the tacit approval of the CSO and that is why he did not raise any objection in his note dated 06.03.2002.
The CSO also did not obtain the approval of Board of Directors before execution of the agreement. It has also been proved in the above analysis that the CSO wrongly modified clause 11 of the sub lease agreement to the advantage of M/s. MUL. The analysis also revealed that he inserted new clauses 4, 5 and 15 in the sub lease agreement contents of which serve the purpose of MUL in a better and secure way. It was all done clandestinely as no evidence has been cited by the CSO authorizing him to insert these new clauses. The CSO who was a party to the decision making process could not have erred on all these occasions except by way of intentional and deliberate acts. Article II of the Chare Memorandum, therefore, stands proved.
III Sh. S.K. Maitra committed the misconduct of fraudulently and dishonestly obtaining/getting signed unconditional and irrevocable power of attorney dated 24.3.2003 from Sh. C. Stephen, Co. Secy. Vide his hand written note dated 25.03.03 and handed over the same to MUL without ensuring the execution of supplementary agreement for proportionate increase in rent for additional space proposed to be constructed by MUL. He did so incomplete violation C&MDs order conveyed by the then VP (HR) to GM(L) vide his noting dated 20.3.03 and which was also intimated to MUL by Sh. Maitra vide his letter dated 21.3.03. The handing over of special power of attorney without ensuring simultaneously increase in rent as intimated to MUL by GM(L) caused a huge loss of Rs. 15.7 crores upto Dec 2008 and Rs.349.05 crores upto jan 2020 to the Corporation.
In view of the detailed analysis brought out above, the Article of Charge III is not established for the reason that while it was incumbent on the part of ITDC to accord permission to MUL for carrying out additional construction in terms of Clause 11 of the Sub Lease Agreement dated 19.02.2002, no provision existed in the said Agreement under which MUL could have been forced to increase the rent for utilizing the additional space. In accordance with the approval of the VPP (HR), the CSO had written to MUL for making provisions in relevant Clause-6 of the draft Supplementary Agreement for increasing rent proportionately but this was not agreed to by MUL vide their letter dated 20.10.2003 which the Investigating Officer has failed to connect. As such, Article III of the Charged Memorandum that the CSO has failed to ensure to execution of Supplementary Agreement for proportionate increase in rent for additional specie is baseless and is, therefore, not proved.
IV When Sh. Maitra realized that he committed a serious irregularity by deleting/ amounting the existing agreement as it was supposed to be done after Boards approval, Sh. Maitra moved a note dated 4.12.2003 along with draft agenda for approval of the Board to Sh. C. Stephen, the then Co Secy. Pointed out irregularities and sought clarifications from Sh. Maitra. On finding it difficult to get it approved from the Board Sh. Maitra initiated a separate note dt. 17.12.2003 which he got approved from the C&MD on 23.12.03 with the following ill motives:
(a) to get the approval of the C&MD for deletion, amendment and other irregularities in the agreement dt. 19.02.02;
(b) to get the approval to the irregularity of handing over irrevocable & unconditional power of attorney without execution of supplementary agreement for increase in rent for additional construction;&
(c) to neutralize the letter dated 21.3.03 and 1.4.03 in which permission for additional construction was given subject to enhancement in the rent proportionately.
Sh. Maitra was successful in his efforts & fresh intimation was given to MUL that they are allowed to go ahead with additional construction as per sublease agreement entered into by ITDC and MUL dated 19.2.2002 and 2.3.2002. The above act of Sh. Maitra is completely in violation of the Rules, Regulations & Procedures and also he connived with the officials of MUL to extend undue benefits to MUL and causing huge loss to the Corporation.
In view of the analysis of various issues involved in Article IV of the Charge Memorandum and after considering all relevant factors, as brought out above. Article IV of the Charge Memorandum is partly proved.
V Sh. Maitra without any authority with ulterior motive dealt himself with the matter of Narina Land, without routing the file through ATT Division, which has administrative control over Narina Land. Sh. Maitra exceeded his jurisdiction as Legal head in complete violation of rules, regulations and official procedures. Sh. Maitra except for taking documental files from ATT Div did not associate it t the time of execution of agreement dated 19.2.2002 nor t the time of giving permission for additional construction.
Thus by above commission and omission, Sh. SK Maitra, the then DGM/GM (Legal), now VP (legal) has committed the misconduct of negligence in his performance of his duties, dishonesty in connection with business of the corporation, violated rules, procedures, administrative instructions of the corporation issued from time to time, misused his official position in the corporation, committed forgery by manipulation deliberately acted in a manner pre judicial to the interest of the corporation. The above actions constitute violation of General Rules 3.1 (i. ii & iii) and Rule 3.2 and constitute misconduct under Rule and Rule 4.1 (iii, iv, xi, xiii, xxii, xx, xxxi, xxxiv, xxxvii) of ITDC CDA Rules 2002 (revised amended upto-date) Therefore, I being the Competent Disciplinary Authority in exercise of power conferred upon me under DOP Entry 7.1 & 7.2 circulated vide order No.SEC.18 dated 29.5.2007 and Rule 23 (B) & 28 of ITDC CDA Rules 2002 (Revised/Amended/Updated) hereby chargesheet Sh. Maitra for major penalty action.
The attributions of misconduct have been imputed in the Statement of imputation as Annexure II supported with Annexure III IV list of documents and list of witnesses respectively.
In view of the analysis brought out above and after considering all relevant factors, Article IV of the Charge Memorandum is held as not proved.
6. The applicant filed his reply highlighting the discrepancies in the evidence tendered by the Management witnesses, which is placed at Annexure A-32 which did not find favour of the Disciplinary Authority and the impugned order of punishment was passed giving the reasons as under:-
AND WHEREAS I fully agree with the findings of the inquiry report. On perusal of the entire documents on record, I found that Sh. Maitra conveyed approval to MUL for additional construction without ensuring the proportionate increase in rent. He did so in view of addition and deletion of certain clause while executing sublease agreement dated 19.2.2002 in deviation with the original agreement dated 28.11.1988 without any approval of the Competent Authority i.e. Board of Directors. Had the agreement dated 19.2.2002 been as per original agreement dated 28.11.1998 the sublessee i.e. MUL before making improvement of permanent structure and/or any major structural alteration was required to seek prior consent of lessee i.e. ITDC in writing. At the stage of seeking permission, lessee was at liberty to ask for additional rent from the sublease. Sh. Maitra committed blatant violation of not obtaining approval which deprived ITDC from claiming the proportionate increase in rent for additional construction made by MUL. Further, from the charges proved as per findings of the inquiry report, I found that Sh. Maitra is guilty of misconduct which is very serious and grave in nature warranting I position of major penalty of dismissal from service. He is also debarred from working with MUL, who has been favoured by him.
AND THEREFORE, I, being the Competent Disciplinary Authority in exercise of power conferred upon me vide DOP entry No. 7.1 and 7.2 circulated vide Order No. SEC:182 dated 29.5.2007, hereby impose major penalty of dismissal from service on Sh. S.K. Maitra, Offtg. VP (HR-Legal) under Rule 23 (B) (x) and 26 of IDC CDA Rules, 2010. He is also debarred from working with MUL, who has been favoured by him. This penalty imposed shall be effective from the date of this order.
7. The applicant has assailed the order on the following grounds:-
The order is hit by malafide. The applicant was in the Legal Department and his sole role was to prepare draft which he had done truthfully as per the original agreement dated 19.02.2002. However, certain interpolations were found to be made in the agreement. The applicant is not aware as to who had made these interpolations. He was only a testifying witness to the agreement which had actually been signed by one Naveen Bhatnagar, Company Secretary of the respondent organization. The applicant was shocked and dismay by the terms of the agreement which were different from the draft agreement. However, believing that the decision had been taken by the superior authority in the best interest of the organization, the applicant signed the documents and thereafter his role came to an end. As the Head of Legal Department the applicant, time and again, offered his suggestions which all indicate his good faith and transparency. Despite this, he has been implicated in this case and punished with the harshest punishment that could have been possible indicates the degree of malafide on the part of the respondent organization;
The applicant has further alleged that a deep rooted conspiracy to implicate him as an official in the Legal Department has been hatched as he was only responsible for tendering legal advices, which he had done in the best interest of the respondent organization. There is no denying that because of the execution of the alleged agreement, the respondent organization had suffered a huge loss which the applicant in his limited capacity had done his best to safeguard. The principal act in the entire episode for defrauding the respondent organization was one P.P. Singh, G.M. (Fin.). However, he was the person who hijacked the enquiry ignoring the detailed instruction on the subject. The fact that the name of P.P. Singh figured as a witness and not as a charged officer in the departmental enquiry and that no substantial action has been taken against him even thereafter indicates not only institutional malice but also indicates that a conspiracy was hatched against the applicant.
The applicant has further alleged that the entire process had been all through discriminatory qua the applicant and smacks of bias. The person who had executed the deal was one Naveen Bhatnagar. He is expected to be the Company Secretary. He was duty bound to take all due care and caution of all these deviations before execution of the agreement. However, this due care and caution had never been exercised and he had not gone into these facts which he ought to have taken. In any case, he should have been the principal co-charged officer along with the applicant. However, this has not been done and his role was never proved nor has he been examined even as a witness. This shows that there was an institutional discrimination operating against the applicant and he has been made a sacrificial lamb while the main accused have been allowed to get away.
The applicant has further alleged that respondent organization has been the guilty of inordinate delay and sleeping over the charges.
The applicant has also alleged that when short payment was received by the Finance Department in the first instance @ Rs.3,57,000/- per month instead of Rs. 4,80,000/ as had been agreed upon earlier, objection should have been raised by the Finance Division which was the custodian of the matter in all respects. Therefore, the matter continued to be under wraps and finally surfaced with the submission of the Memorandum against P.P. Singh as mentioned in the preceding paragraphs.
It is further alleged that through out the enquiry, there is nothing to indicate that why this matter was deflated earlier in the normal course and even for that why this was allowed to be continued for years together.
The enquiry does not throw any light as to who had made the interpolations in the minutes of the meeting held on 21.03.2001 nor does the enquiry report speak about this point or throw any light on the same. The interpolations appear to have been made after the final agreement had been signed in original form by the applicant and may be by some others. The real charge to be enquired into revolves around as to who had made the interpolations.
The applicant has further assailed the failure of the enquiry officer to discern the fact. He has submitted that P.P. Singh, GM (Fin.) who appears to be the real architect of this fraud given deflating replies. Making a reference to the examination-in-chief and cross-examination, P.P. Singh appeared as MW-12. The applicant says that his initial attempt was to completely white wash his own role. He submitted in examination-in-chief that from 1998, he functioned as GM(F&A) and from November, 2000 onwards as Head of Accounts and in 2002 he was given officiating charge of VP(F&A) and from August, 2005 he was made Director (Finance) in the respondent organization which continue till 20.02.2010. He further admitted to have signed the agreement dated 21.03.2001 but feigns complete loss of memory as the agreement had been signed in 2001. Regarding delay of enquiry, P.P. Singh (MW-12) further specifies that it is to confirm that this note dt. 18.12.2008 regarding delay in enquiry in this case by the Vigilance Division was written by me to CVO. As far as I remember I did not deal with the case regarding execution of above mentioned agreements. The source of my obtaining the copies of the above agreements has been mentioned in my note dt. 18.12.2008 under reference at page 2 of the note. I saw the copies of all the documents mentioned in my note dt. 18.12.2008 in the office of Shri Rajiv Makin, Director (C&M), when I happened to be there in connection with some another official matter. I saw a bunch of photocopies of all the documents connected with the preliminary investigation being conducted by Vigilance Department of ITDC regarding leasing out of Naraina workshop. I was informed by D(C&M) that the set of photocopies of those documents were forwarded by Vigilance Division to VP(ATT) and VP(ATT) sent the same to the office of D(C&M). I wrote my note dt. 18.12.2008 to CVO just to convey that why the Vigilance Division is not taking a note of these documents which are self-explanatory to complete the investigation and I do not find any reason for the delay of about one year. In reply to question no.6, he further stated that I was the Director (F) of the Organization and obviously, I was concerned with the delay in concluding a case of investigation involving substantial financial implication.
8. During this cross-examination, he admits himself to be the Head of the Department but in respondent to question no.2 he explains that Payments and other relevant accounting matters are dealt with by the Finance & Account Executives posted in the concerned Unit/Division and the same are not referred to the corporate office unless policy matters are involved.
9. In reply to the question that why he did not raise the issue of disproportionate rent with MUL during the next six years, P.P. Singh stated that he did not remember exactly about the question. If at all, it was so, it must be a matter of record. Regarding the question of audit dated 21.09.2009, he replied that he was not asked to reply this letter because this letter was addressed to the C&MD, ITDC and the Govt. audit asked him to reply that letter within two weeks by 19.02.2010 and then in response to question no.8 denies that in all cases the audit relies to the audit queries were sent with his approval, which is contrary to the statement of one A. B. Aggarwal. Then in response to the rest of the questions, he feigns complete ignorance.
10. The learned counsel for the applicant has argued that such a statement of MW-12 indicates that he is not a reliable witness and as such his statement cannot be relied upon in the enquiry proceedings. He further submitted that the Article of Charge no.1 has been proved whereas Articles of Charge No. 2 & 4 have not been proved and Article of Charges No.3 & 5 have been partially proved. Meaning to say that all that the enquiry officer has proved is that the applicant only initiated a draft but was not responsible for what followed later. Earlier the enquiry officer had proposed a punishment of reduction in one scale which had been converted into the harshest punishment that could have been given i.e. dismissal from service.
11. The learned counsel for the applicant further assailed the punishment saying that two punishments have been provided to the applicant which is multiplicity of punishments. The second part of the punishment is quite unrelated since once the applicant has been ceased to be the employee of the respondent organization, he cannot be prevented to take employment with any outside organization including the MUL. The learned counsel has further stated that the conduct of the applicant could be substantiated by perusal of the departmental original records.
12. Learned counsel for the respondents has strongly resisted the instant Original Application. The principal point that the learned counsel for the respondent has taken is that it is quite incorrect on the part of the applicant to say that his role was confined only to provide the preliminary drafts being a testifying witness in the agreement, and that he is not concerned with what had happened thereafter is absolutely incorrect as the applicant handled the case throughout. It would be quite evident that the applicant had been handling not only legal issues but also issues relating to finance i.e. payment of rent and had been moving notes on different issues as well. For this purpose, the applicant was the pointsman for the organization. As such, he is precluded from taking other views and plead ignorance. The learned counsel for the respondents further submitted that the applicant was fully aware of the original draft. He was a party to the negotiations on 21.03.2001 and has handled several correspondences thereafter. It is wrong to state that he was only a testifying witness. Learned counsel referred to question no.8 of MW-7 one A.K. Bhatnagar, who had clearly admitted in his reply that entire matter was being handled by the applicant. For instance, in response to question nos. 7 & 8 In the reply of previous question, I have mentioned that the queries are based on the papers received from the GM (L) office.
13. The learned counsel for the respondent organization has further alleged that since the entire matter particularly that of 23.01.2001 had been handled by the applicant, therefore, he was responsible for the interpolations. Learned counsel for the respondents has further pointed out that there have been at least 11 deviations and since the applicant has been handling the entire negotiations, he was aware of these deviations. It was his bounden duty to bring these facts to the notice of the Management. Alternatively, he could have refused to sign the document as a testifying witness, as such glaring deviations, had been noted by him and brought them to the notice of the Management. Instead of that his conduct thereafter has been consistently that of favouring the interest of sub lessee and has tried to white wash the entire proceedings.
14. The respondents have emphasized in their pleadings and submissions before this Tribunal that being the Head of the Legal Division, duties of the applicant included vetting, drafting and finalizing the documents apart from taking strategic decision. The applicant was further required to take further steps for implementation of the decision taken by the CEO of ITDC and MUL by preparing the necessary legal documents and getting the same approved from the competent authority and having the same executed by the person authorized in that behalf by the competent authority by the ITDC. The applicant, however, did not comply the above requirements and got executed a sub lease dated 19.02.2002 between ITDC and MUL after making material deviations and alterations in the documents as compared to the minutes of the top executives of ITDC and MUL dated 12.01.2002. He further submits that had the agreement been executed, the rent payable at the time of expiry of lease i.e. on 08.09.2000 was Rs. 4.00 lacs per month and the same was to be enhanced @ 20% per annum, which would have meant that the enhancement of rent per month on 09.09.2000 and on the 9th September of each subsequent year, would have been Rs.20,63,912/- as per the calculation given at page 143 of the paper book. The quantum of advance rent was to be deposited thereafter by MUL was Rs. 11,98,01,672/- against which representative of the sub lessee handed over a cheque of Rs.3,07,45,494/- only which was accepted by the applicant. The learned counsel for the respondents has further contended that there was a missing credit between the year 1997 and November, 2000 in the agreement which was to be covered by payment of arrears. The applicant being the head of the Legal Division and the chief negotiator should have brought the entire matter before the Board of Directors for renewing the lease agreement dated 19.02.2002. Further, he deliberately maneuvered that this was not brought before the Board of Directors as required under the rules of the Corporation. The applicant addressed a letter dated 27.02.2002 to MUL stating therein that as per the decision taken in the meeting admittedly held between officials of ITDC and sub lessee, on 12.01.2002, it had been decided that there would be an increase of rent @ 20% w.e.f. 08.09.2000 but the amount of rent was wrongly mentioned in the sub lease agreement dated 19.02.2002 as Rs.3,57,407/- instead of Rs.4,80,000/-. He further contended that the applicant in order to cover his part raised the matter subsequently when it was coming to light so as to make it appear that he was acting in good faith in the interest of the respondent organization. He failed to inform either the higher authorities or the Chairman-cum-Managing Director of ITDC of its Board regarding his communication dated 27.02.2002 to the sub lessee and the fact that soon thereafter he got executed an un-registered agreement dated 02.03.2003 on a non-judicial stamp paper of Rs.50/- between ITDC through its Assistant Company Secretary and sub lessee to regularize the interim period from 09.09.2000 to 31.01.2002 with regard to the sub-lease of the property in question for the period at a rent @ Rs.4,80,000/- per month containing the same terms and conditions as were in the agreement earlier. Thereafter, he moved a note dated 06.03.2002 annexing therewith net present value calculations provided by the sub lessee and stated that the sub lessee has provided a net present value calculations @ 11% interest in support of upfront payment of Rs.30745494/- for the period from 01.02.2002 to 31.01.2011 after TDS @ 20.4%. The applicant further stated that since the earlier agreement expired on 08.09.2000, the arrears of rent at the revised rate from 08.09.2000 to 31.01.2002 was to be received from sub lessee. Once this agreement had taken place, it should have been logical that the entire payment including the subsequent payment should be corrected and covered, which was not done by the applicant. The learned counsel for the respondents has further drawn the attention of the Tribunal towards the dubious role played regarding the applicant relating to clause 11 of the agreement. The applicant being the person in-charge of the negotiation and being the General Manager (Legal) should have clearly pointed out that the ITDC was itself a sub lessee in respect of the leased premises and as a sub lessee it could not bestowed any right more than what has been allocated to it. By making alterations in the documents dated 12.01.2001, without bringing this to the notice of the CMD and Board of Directors, the applicant wrote a letter dated 29.06.2005 to DDA requesting them to make all communications directly to MUL. This is extremely significant as it had gone quite against the general principles of law and as surrender of all rights as lessor for the respondent organization. The learned counsel for the respondent has further submitted that when the matter came to light, one Ashok Lambda, the Senior Manager (Vigilance) was instructed by the Chief Vigilance Officer of ITDC to investigate into the matter. The Investigating Officer submitted his report dated 30.12.2008 holding that the applicant responsible for causing loss to the respondent organization by undertaking interpolations in the records. Accordingly, the departmental proceeding was launched. When the matter was submitted to CMD on 17.03.2009, he recorded as under:-
That the correct punishment for those who caused loss to ITDC is major penalty. Sh. Maitra is the only officer among those responsible who is still left in service. We have to initiate disciplinary action for imposing major penalty on him. CVO, ITDC vide his noting dated 30.3.09 apprised C&MD that the loss has been calculated by Finance & Accounts Division on the basis of investigation report which amounting to Rs.15.76 crores upto 31.12.2008 and Rs.349 crores upto 31.1.2020 ( the date of expiry of lease agreement). After perusing the above note C&MD ITDC being Competent Authority concurred with the amount of loss.
The matter was referred to CVC for advice. The Commission vide OM No.008/TCA/036-41160 dated 30.4.09 advised initiation of major penalty proceedings against Sh. Maitra, Offtg. VP (HR-Legal), ITDC. The Commission further advised that departmental inquiry against Sh. Maitra may be conducted by a departmental Inquiry Authority and report of the Inquiry Authority may be referred to the Commission for second stage advice. The Commission further advised that as the misconduct on the part of the officials in this case has resulted into huge loss to ITDC the Commission would advice ITDC to supply information as sought by the CBI and pursue the case in order to investigate the criminal conspiracy and unlawful gains to ITDC officials.
C&MD ITDC agreed with the advice of the CVC and in compliance with the same the matter was referred to SP, CBI/ACB, New Delhi vide letter dated 27.5.09 Annexure R-65. C&MD also decided to issue major penalty charge sheet dated 28.5.09 to the applicant. As per charge sheet there are five charges framed against him and the details of charges are contained in Article 1, Article II, Article III, Article IV and Article V.
15. The departmental inquiry was conducted by one D.R. Mehra , retired Executive Director, Ministry of Railways as the Inquiry Authority vide order No. 299/HR/DISC/ITDC/09/9827 dated 07.07.2009. After having followed the principles of natural justice, the Inquiry Authority has submitted its findings as shown in the Table above.
16. The learned counsel for the respondents has further submitted that a CBI case is under progress and if P.P. Singh the former Director (Finance) or any other person is found guilty, he shall be taken to task accordingly. In the matter, when the CVC has already stated that the total loss to the Corporation has been worked at Rs.349.05 crores or even more and when such a major amount is involved and the complexity of the officer is duly proved, there is no other punishment except for dismissal from service that could be awarded.
17. Coming to the issue barring future employment, the learned counsel for the respondents has clearly indicated that since the sub lessee has been profited and the guilt of the applicant being the key person in the entire episode of defrauding the respondent organization having been proved, it was just and proper that the applicant has been barred even taking up the employment elsewhere as the same would amount to providing profits out of the fruits of his complexity, there is nothing in law to award such a punishment and it is only consequent to the major punishment of dismissal from service which bars future employment.
18. We have carefully considered and perused the pleadings submitted by both the parties and documents in support thereof. We have further listened to the arguments advanced by the rival parties. As demanded by both the parties, the original records have also been called for and perused by us. On the basis thereof, the following facts in issue need to be decided by this Tribunal:-
ISSUES Whether the role of the applicant was only that of a testifying witness or there was a larger role involved behind that?
Whether the departmental proceedings are barred by any procedure or latches?
Whether the punishment awarded is under the ITDC (Conduct, Discipline & Appeal) Rules, 2002?
Whether there has been any violation of some rules or procedure in conducting the disciplinary proceeding or in awarding the punishment?
What relief, if any, is to be provided to the applicant?
19. Insofar as first of the issues is concerned, the arguments placed on behalf of the rival parties have been listened. The applicant would have us to believe that his entire role was confined to preparing drafts and to be a testifying witness, which had never been questioned. This was a matter relating to finance and administrative side. The learned counsel for the applicant submitted that he was himself surprised by departures made from the original draft but as a disciplined employee of the respondent organization, the applicant signed the document as a testifying witness. The arguments, on the other hand put forth by the learned counsel for the respondent organization, is that the applicant was an officer of the Legal Department who handled the issue right through. He was also responsible for making variations in the proceedings dated 12.01.2002 and thereafter he continued to handle different issues in which capacity he did his level best but caused wrongful gains to the sub lessee and kept the matter under wraps. The respondents have also given several instances when the follow up issues relating to making permanent changes in the structure and other financial issues including un-covered issues came to him but he was not right in expressing his opinion in this regard. We have also gone through the departmental files and we find that the role of the applicant is much deeper than claimed by him. For instances, in File No.2, we find that he is acting as a pointsman in providing documents dealing with the subject vide his note dated 02.07.2001 wherein he requests for an early decision. We also find him making communication to one S.M. Murmo, Deputy General Manager employed with the sub lessee in 2007 prohibiting sub lease of the area. We also find him giving this draft regarding increase in rent which reads as under:-
And the rent would stand suitable increased after the completion of the present approved project or any other project that may be carried out by the sub-lessee with the consent of the lessee during the tenure of the lease agreement.
20. We also find him in dealing with the building plans submitted by the sub lessee (pages 106 to 107 in the same file) and submitting a note to VP (HR) and Director (F). We further find that he has been dealing right through giving notes guiding the Department and putting up drafts in this file. In File No.3, the same position we find continuing through out. We also find that the lease agreement dated 28.11.1998 between the respondent organization and the sub lessee is also dealt with by the applicant right through. File No.4 relates to sale of land which was under consideration prior to execution of the lease under consideration and again there is substantial evidence as to the dominant role of the applicant. File No. 5 is again related to the year 2007 and the same impression is sustained. In file No. 6, we find at page 16 the minutes of the meeting held on 21.03.2001, relevant portion of which reads as under:-
Taking into account various factors such as Maruti Udyog has been occupying as a Public Sector Undertaking; Maruti had absorbed 30 Staff Members from ITDC initially and in order to maintain continuity of operation, VP(H-ATT) offered a very special considered uniform rate of Rs.20/- per sq. ft. per month for the total area i.e. 77094 sq. ft. for a period of 3 years with 2 extensions of 3 years each with 20% enhancement after every 3 years. This note is signed by the applicant in the capacity of GM(L) and DGM (ATT). In File No. 7 at page 6, there is another draft, which is signed by the applicant, relating to minutes of the meeting dated 12.01.2002 in which it has been mentioned that (i) the lease agreement which expired on 8th September 2000 shall be renewed for a further period of nine years and another period of nine years thereafter subject to the enhancement of rent @ 20% per annum. In File No. 9, we again find the applicant dealing with the lease land issue. At pages 21-22, we find him making recommendations for approval of the proposed construction in the leased premises. File No. 10 relates to handing over and taking over of files between GM(HRD) and GM (ATT). File No.4 (Sh. S.K. Maitra-II Correspondence) contains the documents relating to departmental proceedings as also File No.3 (Sh. S.K. Maitra I Defence Documents). File No.2 (Sh. S.K. Maitra, VP(HR-L) contains the inquiry report. File No.299/HR/DISC/ ITDC/ 09 relates to departmental proceedings wherein the CMD dealing with the advice of the CVC for a major penalty has recorded on 08.03.2011 as under:-
I have also gone through the comments submitted by Sh. Mehra on the inquiry report and also heard him personally wherein he raised the same contentions as are in his written defence. I found that the contention of Sh. Maitra that he had no knowledge of the changes made in the executed agreement 19.2.02 is not correct as he was present at the time of signing of the agreement dated 19.02.2002 and signed as witness. The other contention of Sh. Maitra that the Inquiry Authority did not consider the documents on record and deposition of witnesses is not correct. I have found that all the findings of the inquiry officer are based on evidence on record. Further, after going through the inquiry report including inquiry proceedings and other documents on record I am convinced that inquiry has been held in proper & fair manner in compliance with the principles of natural justice. I am fully convinced that the letter dated 24.12.03 written by Sh. Maitra was in complete violation of the rule which deprived ITDC from claiming the proportionate increase in rent for additional construction made by MUL.
21. We have also been intimated by the learned counsel for the respondent that most of the pertinent files have been seized by the CBI in continuation of the investigation into the case registered in this episode. However, whatever files that are on record and which have been perused, it is clearly established that the applicants role was much more than merely with persons giving drafts or testifying the lease agreement dated 23.01.2012. He has been dealing with the issue on a substantial basis. The issue stands accordingly answered.
22. Insofar as the second issue is concerned, we do not find any procedure laches as the Department has followed the principles of natural justice. The applicant was given opportunity to give his defence against the charges served upon him. He was also allowed to peruse the relevant files and on the basis of the documents perused, he filed his reply to the charge sheet. Full opportunity has been given to the applicant to cross-examine the witnesses. He was further given the opportunity of being heard in respect of the findings of the inquiry authority. Hence, we consider it appropriate to leave the matter as such because no procedural laches in the departmental proceedings have been detected. The instant court is one of natural justice. Its jurisdiction would arise when there is a violation of the rules of natural justice or when there has been infringement of any of the statutory provisions or when mala fides were to be alleged and established. Under the instant issue, a departure from the prescribed procedures would be construed as a violation of the principles of natural justice. As there has been no violation of the procedure, this issue is to be answered in negative.
23. Insofar as issue no. 3 is concerned, Rule 23(B) of the ITDC (Conduct, Discipline and Appeal) Rules, 2010 provides hereunder:-
23(B) Reduction to a lower stage in the time scale of pay other than referred to 23(A) (v), Reduction to a lower time scale of pay, grade, post or service, Compulsory retirement, Removal from service which shall not be a disqualification for future employment under Govt./ or the Corporation/Company owned or controlled by the Govt., Dismissal from service which shall ordinarily be a disqualification for future employment under the Govt. or the Corporation/Company owned or controlled by the Government.
Provided that, in every case in which the charge of possession of assets disproportionate to known sources of income or the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (ix) or clause (x) shall be imposed.
Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed. The penalty of dismissal from service has been imposed against the applicant under the above Rule. As we have already arrived at the conclusion that the departmental proceedings conducted as per the procedure prescribed and suffers with no laches, nothing has been brought on record to hold that some rules relating to departmental proceedings have been violated. We deem it appropriate to leave this issue at that.
24. Insofar as issue no.4 is concerned, Explanation-viii provides as under:-
(viii) The dismissal or removal entails forfeiture of past service and deprivation of retirement benefits. A dismissal from service is ordinarily a disqualification for future employment under Govt. whereas the removal is not. As dismissal/removal, results in termination of employment, such order by the very nature cannot have retrospective effect except where inquiry is completed after superannuation, in which case delinquent employee continues to be deemed employee;
where employee is convicted by Court of law for criminal charge for criminal proceedings initiated during his service after his superannuation/ retirement and his retirement dues have been withheld due to the same. Here it is to be noted that two punishments have been imposed upon the applicant namely he has been dismissed from service which will, inter alia, attract the provision of Explanation-viii. There has been further punishment debarring him from taking up employment with the sub lessee. The punishment of dismissal itself implies that the applicant is debarred from future employment under the Government or any organization owned and controlled by the Government. Here, it is to be considered that at one time MUL sub lessee was a PSU with a majority of shares resting with the Government. However, subsequently, the sub lessee has retired the share of the Government which has come down below 50% while the share of the Suzuki Motors Limited has risen above 50%. Though there is substantial share holding to the tune of 49% of the government it can be said that the sub lessee is not wholly owned and controlled by the Government. At the same time, the rationale for passing this order is also to be appreciated. Since the applicant has been charged with causing wrongful loss to the respondent organization and wrongful gain to the sub lessee, the disciplinary authority has deemed it proper to impose the punishment debarring him from taking employment elsewhere apart from imposition of the punishment of dismissal from service. It follows obviously from the maxim that no person shall be allowed to enjoy the fruits of his own misdeeds. In the instant case, it already stands proved in the course of the departmental proceedings that the applicant was responsible for causing substantial loss to the respondent organization at the behest of the sub lessee through misrepresentation and interpolations in the documents. Therefore, under these circumstances, the need for such punishment could be understood. However, at the same time, it is also equally true that the sub lessee is not a PSU now though the Government retains a significant share holding therein. Debarring from employment is actually in respect of future employment in the Government and the Corporations attached by it but does not extend the same to the private organizations which are not wholly owned and controlled by the Government. Here, there is a contradiction within the term. The main charge against the applicant is of causing wrongful loss to the respondent organization and wrongful gain to the sub lessee which is a private organization. Hence, the debarment cannot act as a punishment in respect of organization not owned and/or controlled by the Government. Moreover, this is also a case of multiplicity of punishments. Here, in this regard, learned counsel for the respondents has cited the decision of the Honble Supreme Court in the case of Secretary to Government, Home Deptt and Others versus Srivaikundathan [(1998) 9 SCC 553], which is related to a Police Constable who, while escorting prisoners, had broken journey at an un-scheduled place and after having deposited the rifles had taken one of the prisoners to visit his concubine from where the prisoner contrived to escape. The respondents thereafter filed a false complaint saying that the prisoner has escaped. Honble Supreme Court held that the Tribunal was not justified in interfering with the punishment orders of the Disciplinary Authority and held as under:-
4. The tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the disciplinary authority to consider the punishment which should be imposed. The disciplinary authority in the present case, looking to the gravity of charges, and looking to the fact that both the respondent as well as Joseph were entrusted with the custody of the two prisoners and had been guilty of total dereliction of duty, as a result of which a life convict escaped, has imposed a somewhat lesser punishment of removal from service on the respondent. The tribunal was wrong in saying that since the respondent had served only for a short period, he should be given another chance. The tribunal, in a serious matter involving proper discharge of duty by a member of the Police Force, ought not to have interfered in this wholly unwarranted manner with the punishment imposed. Nor was there any occasion to direct that a second chance be given to the respondent and that he should not be removed from service. Not only is the order beyond the jurisdiction of the tribunal but is also grossly improper in a case like this. The appeal is allowed and the impugned order of the tribunal is set aside. The application of the respondent before the tribunal is dismissed with costs. In yet another decision of the Honble Supreme Court in the matter of State Bank of India and Others versus Ramesh Dinkar Punde [(2006) 7 SCC 212] wherein the respondent was working under the appellate Bank as Manager, Personnel Banking Division, Palghar Branch and induced upon to accept the Trust funds as Term Deposits and issue TDRs in the names of Bidaye and Angane. The respondent also ensured sanctioning of overdraft facility against the STDRs. Here the Honble Supreme Court disagreed with the position taken by the Honble High Court which had set aside the order of punishment on the ground that the evidence had not been held to prove complicity of the petitioner with of Bidaye and Angane holding that it was a case of no evidence, which reads as under:-
"9. Ample evidence could have been led to prove the complicity of the petitioner with Bidaye and Angane. Even in the FIR lodged with the police, there is not even a suggestion that the petitioner was in anyway involved in the commission of fraud by Bidaye and Angane. In these circumstances, we are firmly of the opinion that this is a case of no evidence of misconduct as alleged by the bank, which is not proved at all and therefore order of punishment is unsustainable. In the result the petition succeeds and it is allowed."
Honble Supreme Court examined a number of judgments including one in the case of Cholan Roadways Ltd. versus G. Thirugnanasambandam [(2005) 3 SCC 241] in which it has been held It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic inquiry."
In yet another case titled as T.N.C.S. Corpn. Ltd. versus K. Meerabai [(2006) 2 SCC 255] wherein loss of Rs.6,88,737.12 was sought to be recovered and the Honble Supreme Court has held as under:-
The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money mis-appropriated. In the instant case, respondent employee is found guilty of mis-appropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or mis-placed sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority."
It was on this basis, the Honble Supreme Court in the case of State Bank of India and Others versus Ramesh Dinkar Punde (supra) setting aide the order of Honble High Court and restored that of the appellate authority.
In yet another decision in the case of Union of India versus Parma Nanda [(1989) 2 SCC 177] wherein one Parma Nanda working as Time Keeper in Beas Sutlej Link Project had failed to maintain absolute integrity and falsely prepared a bogus identity card which another employee used in his attempt to draw the pay and the Tribunal had modified the order of punishment awarded. The Honble Supreme Court relying upon the case of S.P. Sampath Kumar versus Union of India [(1987) 1 SCC 124] held that the jurisdiction of the Tribunal to interfere with the disciplinary matter and its conclusion could not be equated to the appellate jurisdiction. Honble Supreme Court has, therefore, held as under:-
The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that. the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. In the case of Union of India and Another versus B.C. Chaturvedi [(1995) 6 SCC 749], Honble Supreme Court has further held that the Tribunal was not empowered to appreciate the evidence. Relevant portion of the judgment reads as under:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
25. On the basis of the aforementioned cases, it is ample clear that the punishment given to the applicant flows as a necessary corollary to the major punishment of dismissal from service awarded and has a supplementary role. In view of the clear cut findings of the Honble Supreme Court in the aforementioned decisions, the role of the Tribunal in deciding such Applications is defined and the Tribunal is debarred from assuming the role of super Appellate Authority. The fact that the share of the Government has been reduced below 50% does not imply that the punishment is without status. In any case, this Tribunal is not competent to enquire into that.
26. The applicant has relied upon the case of Honble Supreme Court in the matter of Centre for PIL and Another versus Union of India and Another [(2011) 4 SCC 1]. However, the facts of this case are vastly different where erroneous selection made to the post of CVC had been challenged and it was found that the recommendation of High Powered Committee in respect of one P.J. Thomas, Central Vigilance Commissioner was non est in the eyes of law under proviso to Section 4(1) of the 2003 Act. Hence, the impugned appointment of P.J. Thomas was struck down by the Honble Supreme Court. We further take note of the facts in the case of K.S. Panduranga versus State of Karnataka [2013 (2) SCALE 152] wherein the Honble Supreme Court has taken a note of the rising incidents of corruption in public services while rejecting the submission of the learned counsel for the appellant to reduce the period of sentence already underwent in custody.
27. We have no hesitation to hold that the overwhelming concerned of the entire nation is focused towards the rising incidences of lack of probity and dishonesty in public life and public service as the same affects the health of the Government Sectors and Public Organizations. Admittedly, the ITDC is not in the pink of health and has been suffering losses. We are further compelled to take note of the fact that the act with which the applicant has been charged is by all means a serious one and the ramification of the same leads to losses amounting to Rs.483 crores and/or more with interest thereon. We categorically reject the arguments advanced on behalf of the applicant that one P.P. Singh, the then VP (Finance) and Naveen Bhatnagar could also have been held responsible for the same for the fact that the case has already been instituted in this regard and the CBI is proceeding with investigation. This makes us sanguine that the law will take its own course in the matter and the guilty persons will meet the ends of justice. At the same time, we also hold that P.P. Singh and others, as alleged by the applicant, could also have been held guilty, does not offer adequate defence to the applicant. We are, therefore, constrained to dismiss this Original Application leaving the parties to bear their own costs.
(Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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