Gujarat High Court
Union Of India - Through Secretary ... vs Dharmendra Kumar Mishra on 2 February, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/SCA/4633/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4633 of 2014
With
SPECIAL CIVIL APPLICATION NO. 9357 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
=================================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
=================================================
UNION OF INDIA - THROUGH SECRETARY REVENUE & 4....Petitioner(s)
Versus
DHARMENDRA KUMAR MISHRA....Respondent(s)
=================================================
Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Petitioner(s) No. 1 - 5
MR BIREN A VAISHNAV, ADVOCATE for the Respondent(s) No. 1
=================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 02/02/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These petitions are connected involving the Income Tax Department, the petitioner and the employee a common respondent.
Page 1 of 18
C/SCA/4633/2014 JUDGMENT
2. Few facts may be recorded at the outset:-
2.1 The respondent, at the relevant time was discharging his duties as Deputy Commissioner, Income-
Tax. A chargesheet dated 29.10.2003 came to be issued levelling various charges. It was alleged that he, while working as Deputy Commissioner of Income-Tax, Circle-1(4), Ahmedabad during the year 2002 committed gross misconduct by demanding illegal gratification of Rs.3,00,000/-. He had accepted first installment of such illegal gratification of Rs.1,00,000/- from one Nandlal J. Agarwal of M/s. Lippi Systems Ltd., Ahmedabad on 25.6.2002 at his residence at Goyal Towers, Ahmedabad. Such gratification was for favouring said Nandlal Agarwal in various income-tax related matters concerning Nandlal Agarwal and his mother Smt. Satyavati Jaygopal Agarwal. It was thus alleged that he failed to maintain absolute integrity and devotion to duty. It was alleged that on a complaint by said Nandlal Agarwal, CBI arranged a trap in presence of two witnesses. In presence of such witnesses, the complainant spoke to the employee on telephone on 24.6.2002. The conversation was recorded. On 25.6.2002 during the trap laid by CBI, the respondent had accepted bribe of Rs.100,000/- which Page 2 of 18 C/SCA/4633/2014 JUDGMENT amount was recovered from his residence in presence of independent witnesses.
3. Pursuant to such chargesheet, a departmental inquiry was conducted. The respondent was dismissed from service by order dated 30.5.2007. Such order was challenged by the respondent before the Central Administrative Tribunal, Ahmedabad ("the Tribunal" for short) by filing Original Application No.249 of 2007. In such Original Application, the Tribunal at one stage, by order dated 28.8.2008 quashed the order of penalty and remitted the matter back to the Disciplinary Authority to proceed further from the stage of supply of the audio cassette of the recording of the telephonic conversation. The department challenged such order of the Tribunal before the High Court. The High Court set aside the order of the Tribunal dated 28.8.2008 and by its order dated 11.2.2009 remitted the matter back to the Tribunal for fresh consideration.
4. The Tribunal, this time around, by its judgment dated 9.7.2009 once again set aside the order of dismissal. In a detailed considered judgment, the Tribunal found various defects in the conclusions Page 3 of 18 C/SCA/4633/2014 JUDGMENT arrived by the Disciplinary Authority that the charges were proved and the punishment awarded by the authority. The Tribunal was of the opinion that certain evidence which was not admissible, was accepted by the Disciplinary Authority and also relied upon. The Tribunal noted that tape contained in the conversation was not cited as one of the relied upon documents. The complainant, who lodged the First Information Report was the person who had made this conversation. He was also not examined regarding the contents of the tape. Certain defence documents which, in the opinion of the Tribunal, would have, in fact, enabled the employee to put the incident in the overall perspective, was not produced. Inter alia on such grounds, the Tribunal quashed and set aside the order passed by the Disciplinary Authority. While doing so, the Tribunal gave liberty to the Disciplinary Authority " to proceed further in the matter from the stage of consideration of E.O.'s report if there is some evidence other than those which we have held to be inadmissible." With respect to the employee, the Tribunal further provided that "
The applicant shall be reinstated in service. The Disciplinary Authority can exercise the powers of Page 4 of 18 C/SCA/4633/2014 JUDGMENT keeping an employee under deemed suspension having regard to the facts and circumstances of the case. The Disciplinary Authority shall complete the exercise in three months." This order of the Tribunal was not challenged by the department or the employee.
5. Pursuant to these directions, the department issued OM dated 11.1.2010 referring to the liberty granted to the department to consider the evidence on record afresh discarding the inadmissible evidence noted by the Tribunal, the department conveyed to the employee as under:-
."8. In compliance to the above directions of Hon'ble CAT Ahmedabad, the DA has reexamined IO reports in the light of existing evidences relied upon by the IO and directions of the Hon'ble Tribunal in its impugned order. The DA has noted that, assuming without conceding, the inadmissibility of the evidences discussed by the Hon'ble Tribunal in its order, there are enough evidences, analysed by the IO, to hold the charge of demand and acceptance of illegal gratification against the CO as proved.
9. The DA has accordingly holding that the charge of demand and acceptance of illegal gratification by the CO is proved recommended for seeking second stage advice of the CVC with the recommendation that it is a fit case for levy of suitable major penalty upon the CO.
10. The advice of the CVC has been received vide letter F.No.002/ITX/044/66496 dated 11.12.2009 and relevant portion of the same is extracted as under:Page 5 of 18
C/SCA/4633/2014 JUDGMENT "The Commission has examined the proposal in respect of disciplinary proceedings against Shri D.K.Mishra. The views of the DA are well reasoned, as there are adequate circumstantial evidences which meet the principle of preponderance of probability of demand and acceptance of bribe by Shri D.K.Mishra, then DCIT. These evidences which include demand of illegal gratification, unexplained telephonic contact with the complainant, visit of the complainant to the CO's residence as supported by witnesses, corroborate the finding of holding the charge as proved.
The Commission hence, in agreement with DA, advices for acceptance of IO's report as proved, and imposition of suitable major penalty on Shri D.K.Mishra, DCIT.
11. Your submission/representation, if any, on the inquiry officer's report, DA's views as also on the CVC's advice, may please be furnished in writing to the undersigned within 15 days of the receipt of this communication, failing which it will be presumed that you have no comments to offer in the matter."
6. The respondent opposed these proposals and made a detailed representation. After considering such representation, the department issued a fresh OM dated 19.3.2010 and decided to give a second opportunity to the employee on the views of the Disciplinary Authority and the advice of CVC in such O.M. It was recorded as under:-
" The reply of the CO has been considered. In the instant case the charge against the CO is of demand and acceptance of illegal gratification from a complainant. The IO after considering the evidences contained in Annexure-III of the memorandum as well as oral Page 6 of 18 C/SCA/4633/2014 JUDGMENT evidences collected during the course of inquiry proceedings held that the charge was proved. The Hon'ble CAT Ahmedabad in their impugned order observed that some of the evidences were inadmissible. The Hon'ble CAT, however, gave liberty to the DA to proceed further in the case from the stage of EO's report onwards in case DA finds that there are evidences, other than those held as inadmissible by the Hon'ble Tribunal. In compliance to the orders of the Hon'ble Tribunal, on re-examination of IO's report, analysis of evidences enumerated in Annexure- III as well as oral evidences gathered by the IO during inquiry proceedings, the DA has noted that in the disciplinary proceeding cases, the issue of proving the charge in a particular case is dependent upon totality of all the evidences present therein and not on any specific evidence per se. The DA has, accordingly, held that, relying on the principles of preponderance of probability, the charge of demand and acceptance of illegal gratification by the CO stands proved in view of evidences other than those held inadmissible by the Hon'ble CAT enumerated in Annexure-III as well as oral evidences gathered by the IO during inquiry proceedings. The views of the DA have been concurred by the CVC as evident from the second stage advice of the CVC dated 11.12.2009 reproduced hereunder.
"The Commission has examined the proposal in respect of disciplinary proceedings against Shri D.K.Mishra. The views of the DA are well reasoned, as there are adequate circumstantial evidences which meet the principle of preponderance of probability of demand and acceptance of bribe by Shri D.K.Mishra, then DCIT. These evidences which include demand of illegal gratification, unexplained telephonic contact with the complainant, visit of the complainant to the CO's residence as supported by witnesses, corroborate the finding of holding the charge as proved.
The Commission hence, in agreement with DA, advices for acceptance of IO's report as Page 7 of 18 C/SCA/4633/2014 JUDGMENT proved, and imposition of suitable major penalty on Shri D.K.Mishra, DCIT.
The CO is hereby given a final opportunity to make his submission/representation, if any, on the inquiry officer's report, DA's views as also on the CVC's advice. The same may please be furnished in writing to the undersigned within 15 days of the receipt of this communication, failing which it will be presumed that he has no comments to offer in the matter."
7. At that stage, the respondent approached the Tribunal afresh and filed Original Application No.164 of 2010. Such Original Application came to be allowed by the Tribunal by judgment dated 27.3.2012. The Tribunal held and observed as under:-
"14. Having noticed the above, we come to the conclusion that the Tribunal in its order dated 09-7-2009 (Annexure-A/4) had set the limits within which the Disciplinary Authority was to consider the matter in light of the inquiry report and to arrive at a conclusion. It is clear that the Disciplinary Authority failed to abide by these limitations and has tried to circumvent the limitations by using general terms as "totality" and "not on any specific evidence per-se". The CVC also has failed to consider this aspect and has mainly endorsed whatever views have been given by the Disciplinary Authority. We are constrained to observe that both the Disciplinary Authority and the CVC has failed in their duty to consider the matter objectively and in the light of the directions of the Tribunal in order dated 09-07-2007. As a matter of fact, it is clear that they have acted beyond the directions, which cannot be held as justified.
The respondents have thus failed to satisfy this Tribunal in the present OA on any of the points. We are constrained to also Page 8 of 18 C/SCA/4633/2014 JUDGMENT observe that the disciplinary proceedings does not seem to have been concluded by the Disciplinary Authority up to the second OM in the manner in which such proceedings are required to be concluded by the Disciplinary Authority and as was required in the order of the Tribunal in OA No.249/2007 dated 09-7-2009.
15. In effect therefore, we do not find the two impugned OM at Annexure-A/1 and A/2 as justified and cannot hold the same as legal and valid. They are therefore, quashed and set aside. The respondents are however free to proceed afresh in the matter in the light of the directions given in OA/249/2007 vide order dated 09-7-2009. In view of the fact that the charge-sheet was issued on 29-10-2003, the respondents would no doubt take care to act expeditiously, if they decide to proceed afresh in the matter."
8. In the meantime, the department also reinstated the employee in service but kept him under suspension, vide order dated 27.1.2010 after the Tribunal passed its first judgment setting aside the order of dismissal while still keeping an option of further consideration open. After second judgment dated 27.3.2012 of the Tribunal, the department passed a fresh order dated 4.5.2012 revoking the suspension of the respondent.
9. On 27.6.2012 the department passed an order holding that till the competent authority passed an order whether the period of absence from duty should Page 9 of 18 C/SCA/4633/2014 JUDGMENT be treated as one spent on duty, the employee cannot receive any increment while he was under suspension. This was in response to the representation of the respondent for releasing the salary of the entire intervening period and for granting regular increments as if his oder of dismissal or of suspension was never passed. The department also declined to regularize the period spent under suspension. This prompted the respondent to file yet another Original Application No.378 of 2012 before the Tribunal. This Original Application was allowed by the Tribunal by judgment dated 14.3.2013. The Tribunal placed reliance on sub- rule (3) of F.R.54-A of the Fundamental Rules and directed the department to regulate all consequential actions with respect to the respondent and making payment as provided under the rules within stipulated time. Thus the judgment of the Tribunal gave rise to two petitions by the department. In Special Civil Application No.9357 of 2014, the department has challenged the judgment of the Tribunal dated 27.3.2012 passed in Original Application No.164 of 2010 quashing the two Office Memorandums issued by the department continuing further consideration of the disciplinary proceedings against the respondent Page 10 of 18 C/SCA/4633/2014 JUDGMENT employee. In Special Civil Application No.4633 of 2014, the department has challenged the later judgment of the Tribunal dated 14.3.2013 directing the department to regularize the pay of the employee in terms of F.R. 54-A(3) of the Fundamental Rules.
10. In our opinion, the outcome of the petition challenging the judgment of the Tribunal dated 27.3.2012 would have considerable bearing on the later decision of the Tribunal and we would, therefore, focus our attention first to such issue. We may recall that by the said judgment dated 27.3.2012, the Tribunal terminated the action of the department in continuing the departmental proceedings against the employee afresh from the stage of reappreciation of the evidence on record discarding the set of evidence, which the Tribunal found was inadmissible.
11. Having heard the learned counsel for the parties and having perused the materials on record, we may briefly summarize the sequence of events. The respondent was served with departmental chargesheet of having demanded Rs.3,00,000/- in illegal gratification and having accepted Rs.100,000/- for illegally favouring certain income-tax assessees in their Page 11 of 18 C/SCA/4633/2014 JUDGMENT income-tax related matters. The person from whom such gratification was demanded had complained to CBI and a trap was laid. The trap was successful. The complainant had paid a sum of Rs. 1 lakh to the employee on the appointed day at his residence. In presence of witnesses, the said Rs.1,00,000/- was recovered from the residence of the employee. This was preceded by a telephonic conversation between the complainant and the delinquent. Upon completion of the inquiry, the order of dismissal was passed which was challenged before the Tribunal. The Tribunal found that while arriving at a final conclusion that the charges were proved, the department took into consideration certain evidence which was not admissible. While quashing penalty imposed by the department, the Tribunal still left the opportunity open to the department to consider whether other than such tainted evidence, there was any other evidence on record, which would still enable the department to hold that the charges were proved. This judgment neither the department nor the employee challenged further. Both the sides were, therefore, bound by this view of the Tribunal. It was pursuant to this opportunity granted to the department by the decision Page 12 of 18 C/SCA/4633/2014 JUDGMENT of the Tribunal that the two office memorandums came to be issued. First such OM was a notice to the respondent why due to the other evidence on record the charges should not be held to be proved. The second OM was also in a nature of show cause notice pointing out to the delinquent that the departmental authority as well as CVC have tentatively concluded that there was sufficient evidence on record to proceed further. He was given opportunity to make his representation. His preliminary contention previously made were considered.
12. When the Tribunal itself had, while setting aside the order of dismissal, reserved the liberty to the department to proceed further by reconsidering the remaining evidence on record barring that which was found inadmissible and when the department in the process of so doing, issued show cause notices to the delinquent to make his representation on the proposed issues, in our opinion, the Tribunal committed serious error in interjecting at that stage and terminating the departmental proceedings without any further consideration. Whether ultimately the evidence was sufficient to drive home the charges or whether minus Page 13 of 18 C/SCA/4633/2014 JUDGMENT the evidence found inadmissible by the Tribunal, there was insufficient evidence with the authorities to hold the delinquent guilty of the charges were the issues the Tribunal ought not to have traversed at that stage. It is well settled that in validly conducted departmental proceedings on question of facts of proof of the charges, the role of the Court would be extremely limited. Only if the findings are demonstrated to be perverse in the sense that there is no evidence on record or that the evidence is not admissible or irrelevant evidence has been considered or that no reasonable person on such evidence could be expected ever to come to the conclusion that the charge is proved, would the Court be persuaded to reverse the finding of fact of the departmental authority.
13. In fact, in the present case, such a stage had not even been arrived. The department was still in the process of making up its mind whether there was evidence to hold that the delinquent was guilty of the charges levelled against him and if so. what punishment to be imposed. At this stage, the Tribunal going deep into the matter and finding fault with the Page 14 of 18 C/SCA/4633/2014 JUDGMENT office memorandums issued by the department and holding that the same were opposed to the earlier judgment of the Tribunal, was simply impermissible in the facts of the case. The entire consideration was at a premature stage and, therefore, the Tribunal ought not to have exercised such powers at that stage. Interestingly, while quashing the two OMs, the Tribunal still permitted the department to proceed further as permitted by the earlier judgment of the Tribunal.
14. Though the nature of evidence led before the disciplinary authority may be vastly different from that brought before the Criminal Court, in the CBI case, we cannot lose sight of the fact that the employee has since been convicted in bribery case.
15. Be that as it may, we are concerned with the present departmental proceedings and the judgment passed by the Tribunal ordering termination of such proceedings even before the department could take a final view on an opportunity given by the Tribunal itself. Such judgment of the Tribunal is, therefore, required to be reversed.
Page 15 of 18
C/SCA/4633/2014 JUDGMENT
16. If the Tribunal's judgment dated 27.3.2013 is set aside, the fact of this would be that the said two office memorandums dated 11.1.2010 and 19.3.2010 would be revived. The department would be at liberty to proceed further as permitted by the Tribunal in its earlier judgment dated 9.7.2009. The entire complexion of the pay fixation of the Government servant, therefore, would undergo significant change. The focus perhaps would shift from FR No.54-A to FR No.54-B and, in particular, sub-rule (6) thereof which provides that where suspension of the Government servant is revoked pending the finalization of disciplinary or Court proceedings, any order passed under sub-rule (1) would be reviewed in its own motion after the conclusion of the proceedings by the authority according to the provisions contained under the said rule.
17. Since the judgment of the Tribunal dated 14.3.2013 was based on final exoneration of the Government servant, which parameter has undergone a complete change by virtue of this judgment, the question of validity of the pay fixation of the employee would also completely change. The judgment of Page 16 of 18 C/SCA/4633/2014 JUDGMENT the Tribunal dated 14.3.2013 also, therefore, shall have to be set aside. The department would, however, have to refix the pay of the respondent on the basis of such changed circumstances. We, therefore, dispose of both these petitions with following directions:-
(1) The judgments of the Tribunal dated 27.3.2012 and 14.3.2013 are set aside.
(2) The department will proceed further from the stage of the consideration of the representation of the respondent in response to second OM dated 19.3.2010. If he has not made any representation so far, it would be open for him to do so latest by 15.3.2015. The department thereafter will pass fresh order in accordance with law without any further delay.
(3) The department shall carry out fresh pay fixation of the respondent in view of the changed circumstances. Such fresh order will be passed latest by 28.2.2015.
18. Both these petitions are disposed of accordingly. Rule is made absolute in above terms.
(AKIL KURESHI, J.)
Page 17 of 18
C/SCA/4633/2014 JUDGMENT
(MS SONIA GOKANI, J.)
SUDHIR
Page 18 of 18