Central Administrative Tribunal - Jaipur
Ravi Shankar Srivastava vs Union Of India Through Secretary on 28 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 201/2011
DATE OF ORDER: 28.02.2012
CORAM
HONBLE MR. JUSTICE K.S. RATHORE, JUDICIAL MEMBER
HONBLE MR. ANIL KUMAR, ADMINISTRATIVE MEMBER
Ravi Shankar Srivastava, IAS, aged about 47 years, S/o late Sri S. P. Srivastava, R/o N-9 Gandhi Nagar, Jaipur.
...Applicant
Applicant is present in person.
VERSUS
1. Union of India through Secretary, Department of Personnel Public Grievances and Training, North Block, New Delhi.
2. State of Rajasthan through Principal Secretary, Department of Personnel, Secretariat, Jaipur.
...Respondents
Mr. Mukesh Agarwal, counsel for respondent no. 1.
Mr. V.D. Sharma, counsel for respondent no. 2.
ORDER (ORAL)
The present Original Application is directed against the impugned memorandum of charges dated 08.04.2011 (Annex. A/1) issued by the Government of Rajasthan, Department of Personnel (A-III/Enquiry) against the applicant.
2. The brief facts of the case, as stated by the applicant, are that the applicant is an IAS Officer of 1985 Batch of Rajasthan cadre and in the super-time scale of IAS. The applicant had been working as SDO in 1987 at Dholpur and in 1988 at Jhalawar. In January, 1989, he went on leave and joined back on 17th July as ADM Development, Jhunjhunu in the year 1989. In January, 1990, he was posted as Settlement Officer, Ajmer and on 26th January, 1991, he was posted as Deputy Secretary, Agriculture, Jaipur where he continued till 20th June, 1992.
3. While working as SDO, Jhalawar, there were four Tehsildars, one additional Tehsildar and two Sub Tehsils under the charge of the applicant. There were more than 200 Patwaris, who were reporting to Nayab Tehsildar and Tehsildar and the applicant was designated as Reviewing Officer for their Annual Confidential Reports. The same was the case in Ajmer where the applicant had four Tehsils under him and a few Sub Tehsils. There also, the applicant was Reviewing Officer for Amins, ILRs and ASOs.
4. In 2004 while the applicant was posted at Ajmer, a search operation was conducted by Anti Corruption Bureau at his official residence N-9, Gandhi Nagar, Jaipur in connection with FIR No. 109 and 110 of 2004 but, as stated by the applicant, no such ACRs were recovered from his residence.
5. Controversy was arisen in the year 2004-05, when the letters dated 19th November, 2004 and 25th June 2005 (Annexure A/3) were written by the Department of Personnel, Government of Rajasthan asking his explanation for keeping the ACRs of the Government Servants pending for abnormally long period. The applicant filed detailed reply to the Annexure A/3. Again, similar letters were issued and the same were replied by the applicant. Having considered the reply submitted by the applicant, the Department of Personnel, Govt. of Rajasthan, issued a memorandum of charges in the year 2011. The memorandum of charges is challenged on the ground that the same is issued in violation of all norms of fairness, equity and principle of natural justice, and has been issued in an unauthorized manner by the respondent no. 2 without the competence as the Secretary, Department of Personnel, Government of Rajasthan, is not competent to issue such a charge memo under the All India Service Rules, 1969. The memo of charges has been issued without considering the reply submitted by the applicant. As per the reply submitted by the applicant in the year 2004, 2005 and 2009, wherein the applicant clearly indicated that the matter was deliberately not closed, and totally ignored the reply submitted by the applicant and has issued the memorandum of charges without applying the mind, which is contrary to the guidelines prescribed by the Department of Personnel, Government of Rajasthan for filling the ACRs, and the applicant has referred the guidelines of 1976 issued by Department of Personnel, Government of Rajasthan.
6. It is also contended by the applicant that the ACRs were submitted by the Settlement Officer, Jaipur on 25th June, 1991 i.e. after the prescribed time limit and, as such, the Settlement Officer, Jaipur, has violated the guidelines, not the applicant.
7. Further, the memorandum of charges is challenged on the ground that the memorandum of charges issued by the respondents is time barred and suffers from the malice of fatal delay as the same has been issued after a lapse of about 20 years, and the action of the respondents is not only prejudicial but also is the malafide action.
8. So far as the competence for issuance of the memorandum of charge-sheet is concerned, in support of his submission, the applicant has placed reliance upon the judgment rendered by the Honble Rajasthan High Court at Jaipur Bench in his case (DB Civil Writ No. 4202/2008 Ravi Shankar Srivastava vs. C.A.T. & Ors.), and more particularly referred the para 7 & 8 of the judgment, which reads as under: -
7. We have perused the Business Rules. The learned counsel for the respondents also has drawn the attention of the Court on the various Rules. He has not been able to pin point from the Rules that the Minister Incharge of the Department was the Disciplinary Authority in terms of the Rules of 1969 for directing extension of the period of suspension of the officer born on the cadre of the Indian Administrative Service.
8. Rule 2 (C) of the Rules defines the Government, which is also relevant. Rule 3 postulates that if the Government is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, the Government may place under suspension such an officer. It has not been shown to us by Business Rules or any provision of another rule that Minister Incharge of the Department is the Government having the authority and power to pass such an order. Suspension has to be directed by the Government under the Rules of 1969. In this case, it has not been done. It is only by the Minister, which appears to be not in consonance with the requirement of law rather in breach of Rule 3. Placing reliance upon the said judgment, the applicant submits that memorandum of charges has not been issued by the competent authority; therefore, the memorandum of charges deserves to be quashed and set aside on this count alone.
9. The applicant has also placed reliance upon the judgment dated 27th April 2011 rendered by this Bench of the Tribunal in the case of M.N. Verma vs. Union of India & Anr. (OA No. 89/2007). Further, in support of his submission, the applicant has drawn our attention towards the certain Rules of Rajasthan Rules of Business.
10. The applicant has also referred the list of recovery of the articles prepared during the search conducted at his official residence by the Anti Corruption Bureau, and demonstrates before us that the list does not contain that the alleged ACRs were recovered from his official residence.
11. On the ground of delay and laches, the applicant has placed reliance upon the judgment rendered by the Honble Supreme Court in the case of the State of Madhya Pradesh vs. Bani Singh and another, reported in AIR 1990 Supreme Court 1308, and after referring the judgment, he submits that the charge memorandum deserves to be quashed and set aside not only on the ground of delay and laches but also on the ground of competency.
12. Per contra, learned counsels appearing for the respondents referred the Standing Order bearing No. 10(5)Pers(A.I.)/85 Pt.II, dated 30th March 2010, issued by the Government of Rajasthan, Department of Personnel (A-I), mentioning that the charge memo has been issued by the competent authority as per Clause III (1) & (8), which reads as under: -
Sl. No. Items To be examined To be disposed of Whether to be submitted to C.S. Whether to be submitted to Chief Minister Remarks III. DOP (A-3-Enquiry/Complaint) Conduct Rules, Disciplinary / Criminal matters
1. Amendment in CCA Rules, Conduct Rules, Disciplinary Proceeding (SW) Act/Rules etc. DS/DLR SP Yes Yes Cabinet approval shall have to be taken xx xx Xx xx Xx xx xx 8 Approval of Proposal for initiating disciplinary proceedings against:-
a) AIS Officers DS SP Yes Yes
b) HoDs/RAS DS SP Yes No
c) Others DS SP No No The learned counsels for the respondents further submits that the Department of Personnel, Government of Rajasthan, is competent to initiate the disciplinary proceedings against the officers belongs to IAS/IPS/IFS and officers belonging to the State Services where the appointing authority is the Government, as per the Department of Personnel (A-III) (1) (a) (b).
13. The respondent no. 2 has raised preliminary objections regarding maintainability of the Original Application as the applicant has raised malafide action against the respondents but he has failed to produce any cogent evidence or any concrete proof of any malice or bias on the part of the respondents in the issue of charge-sheet in question. He has placed reliance upon the judgment rendered by the Honble Supreme Court in the case of Shri Parma Nand vs. State of Haryana and Ors. reported in 1989 (2) SCC 177 and also placed reliance upon the judgment rendered by the Honble Supreme Court in the case of Union of India vs. Upendra Singh, reported in 1994 (2) SLJ 77 (SC).
14. Learned counsel appearing for the respondents further challenge the maintainability of this Original Application on the ground that the applicant has failed to avail any of the statutory departmental remedies available to him, and referred the provisions of Section 20 of the Administrative Tribunals Act, 1985, which reads as under:-
20. Applications not to be admitted unless other remedies exhausted. (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. The respondents further submitted that the applicant has failed to avail any of the departmental remedies available to him under the provisions of All India Service (Discipline and Appeal) Rules, 1969, thus, the Original Application is not maintainable and is liable to be dismissed on this count alone.
The respondents also submitted that this question was again considered by the Honble Supreme Court in the case of District Forest Officer vs. R. Rajamanickam & Anr., reported in 2000 SCC (L&S) 1100 wherein the Honble Supreme Court has held that the Tribunal was not justified under law to interfere with the correctness of the charges levelled against the delinquent officer.
15. So far as factual aspects are concerned, it is submitted on behalf of the respondents that FIR No. 109/2004 and 110/2004 came to be registered against the applicant on 09.06.2004 for the offences under Sections- 7, 18, 13(1)(a), 13(d)(2) of Prevention of Corruption Act, 1988 read with Section 120-B of IPC in relation to taking huge amount of money as bribe by him. The applicant was arrested on 11.06.2004 and was kept in police custody till 21.06.2004. Thereafter, the applicant was placed under suspension on 12.06.2004. While working as Sub-Divisional Officer, Jhalawar, the applicant was authorized as Reviewing Authority for the purpose of APARs of subordinate employees. The respondents further submitted that the Tehsildar Barsula vide its letter dated 06.02.1992 sent the APARs of 8 Revenue employees for the year 1988-89 and Settlement Officer, Ajmer on 25.06.1991 sent the APARs of 51 employees for the year 1990-91 to the applicant to write his comments as Reviewing Authority, but the applicant in a illegal manner kept these APARs in his possession without giving any comment on these APARs and during the search conducted by the Anti Corruption Bureau, these reports were found at his residence, which shows the conduct of the applicant.
16. The respondents submitted in their reply that the explanation submitted by the applicant has been considered by the respondents and decided to hold a regular enquiry under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969. As admitted by the applicant that he has submitted his last explanation on 03.05.2010, which shows that the matter was under consideration, therefore, question of delay in issuing charge sheet cannot be questioned at this stage.
17. In support of his submission, the learned counsel appearing for the respondents placed reliance upon the judgment rendered by the Lucknow Bench of this Tribunal in the case of R.D. Srivastava vs. Union of India & Ors., reported in 2007 (1) SLJ (CAT) 1.
18. We have heard the rival submissions of the respective parties and carefully gone through the material available on record as well as the provisions of the Rajasthan Rules of Business and the judgments rendered by the respective parties. The applicant has raised the legal question that the memorandum of charges dated 08.04.2011 (Annex. A/1) has not been issued by the competent authority and the respondent no. 2, who has issued the memorandum of charges, is not competent authority to issue the same to the applicant. The applicant has referred the judgment rendered by the Honble High Court, Jaipur Bench, in his case, (Ravi Shankar Srivastava vs. CAT & Ors.), (supra), wherein in para 4, the Honble High Court has dealt with the Rule 2 of the All India Service (Discipline and Appeal) Rules, 1969. Rule 2 deals with definitions. The words Disciplinary Authority and the Government have been defined as under: -
2(b) disciplinary authority means the authority competent under these rules to impose on a member of the service any of the penalties specified in rule 6;
2(C) Government means
(i) in the case of a member of the service serving in connection with the affairs of a State, or who is deputed for service in any company, association or body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State, the Government of that State;
(ii) in any other case, the Central Government.
19. The applicant has placed heavily reliance upon the judgment of the Honble High Court passed in his case (supra) and also upon the judgment passed by this Bench of the Tribunal in the case of M.N. Verma vs. UOI & Ors. (supra). We have thoroughly considered the judgments rendered by the Honble High Court in the case of the applicant itself and by this Bench of the Tribunal in the case of M.N. Verma vs. UOI & Ors. The case of the applicant before the Honble High Court relates to the suspension, whether the suspension has to be reviewed by the Review Committee after every 180 days and on the recommendation of the Review Committee, appropriate orders are to be passed by the Disciplinary Authority. Here in the instant case of the applicant, the applicant has filed this Original Application with the prayer that the memorandum of charges dated 08.04.2011 (Annex. A/1) be quashed and set aside. The ratio decided by this Bench of the Tribunal in the case of M.N. Verma vs. UOI & Anr. (supra) also not applicable to the facts and circumstances of the present case.
20. The second issue, which has been raised by the applicant, is with regard to the delay and laches.
21. We have considered the case of Shri Parma Nand vs. State of Haryana and Ors. (supra) wherein the Honble Supreme Court has held that the Tribunal could exercise only such powers which the civil courts or the High Courts could have exercised by way of judicial review. The Honble Apex Court further observed that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or the Competent Authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by way of an Act of legislature or Rules made under 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.
22. The similar view has been expressed by the Honble Supreme Court in the case of Union of India vs. Upendra Singh (supra) wherein it has been held that in the case of charges framed in a disciplinary proceedings, Tribunal or Court can interfere only if the charges framed with the imputation of particulars of the charges, if any, of misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the Disciplinary Authority. The truth or otherwise of the charges is a matter for the Disciplinary Authority to go into.
23. Having considered the ratio decided by the Honble Supreme Court in the case of Union of India vs. Upendra Singh (supra), the memorandum of charges can only be quashed and set aside if it is issued malafidely or malicely. Although the applicant has levelled the malafide allegations, but has not impleaded them as party-respondent(s) in person against whom the malafide allegations are levelled, therefore, in view of the settled preposition of law that mere assertion of malafide allegations does not survive, in such situation, on the ground of malafide and malice, the memorandum of charge-sheet dated 08.04.2011 (Annex. A/1) cannot be quashed and set aside.
24. Further, in view of the provisions of Section 20 of the Administrative Tribunals Act, 1985, the applicant ought to have availed of all the remedies available to him under the relevant service rules. It appears that the applicant has represented before the respondents. The memorandum of charge-sheet has been replied by the applicant through his explanation/reply dated 15th December, 2004, reply dated 10.07.2009 and reply dated 03.05.2010 (Annex. A/4). It appears that the respondents have not considered the detailed explanation given by the applicant properly.
25. Thus, without expressing our opinion on the merit of the case, we deem it proper to direct the respondents to consider and decide the explanation given by the applicant through explanation/reply dated 15th December, 2004, reply dated 10.07.2009 and reply dated 03.05.2010 (Annex. A/4). Consequently, the respondents are directed to consider and decide the explanation given by the applicant through explanation / reply dated 15th December, 2004, reply dated 10.07.2009 and reply dated 03.05.2010 (Annex. A/4), and shall pass a reasoned and speaking order to this effect whether the memorandum of charges dated 08.04.2011 (Annex. A/1) still survives on the factual as well as on the legal aspects or not. It is expected from the respondents to do the needful, as stated hereinabove, expeditiously but in any case not later than a period of three months from the date of receipt of a copy of this order.
26. If any prejudicial order against the interest of the applicant is passed by the respondents, the applicant will be at liberty to challenge the same before the competent authority.
27. With these observations and directions, the Original Application stands disposed of with no order as to costs.
(ANIL KUMAR) (JUSTICE K.S. RATHORE) MEMBER (A) MEMBER (J) kumawat