Central Administrative Tribunal - Delhi
Shiv Singh Rathor vs M/O Home Affairs on 16 November, 2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.288/2013
Order reserved on 27th September 2017
Order pronounced on 16th November 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K.N. Shrivastava, Member (A)
Mr. Shiv Singh Rathore
S/o Mr. Parmanand
r/o 1/1o Probyn Road
Admn. Officers Flats
Delhi - 54
..Applicant
(Mr. Ajesh Luthra, Advocate)
Versus
1. Union of India through Secretary
Ministry of Home Affairs
North Block,
New Delhi
2. Govt. of NCT of Delhi
Through the Chief Secretary
5th Floor, Delhi Sachivalaya, New Delhi
..Respondents
(Mr. R N Singh, Advocate for respondent No.1 and
Nemo for respondent No.2)
ORDER
Mr. K.N. Shrivastava:
Through the medium of this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following main relief.
"(a) quash and set aside the impugned action/orders placed at Annexure A/1 and Annexure A/2, with all consequential benefits."2 O.A.No.288/2013
2. The factual matrix of the case, as noticed from the records, is as under:-
2.1 The applicant joined DANICS on 15.07.1983 under Government of National Capital Territory of Delhi (GNCTD) - respondent No.2 at the entry grade. He worked as the competent authority under the Urban Land (Ceiling & Regulation) Act, 1976 (for short „ULCR Act‟) (since repealed) in the Land & Building Department, GNCTD from 23.08.1995 to 28.07.1997.
The applicant secured regular promotions. Before retiring from service on 30.06.2013, on attaining the age of superannuation, he was in the Junior Administrative Grade-II (JAG-II).
2.2 Annexure A-3 charge sheet dated 14.03.2001 came to be issued to him for alleged irregularities committed by him while functioning as the competent authority under the ULCR Act. The charge sheet reads as under:-
"That Shri S.S. Rathore, Junior Administrative Grade Officer of the Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Service, while functioning as the Competent Authority under the Urban Land (C&R) Act, 1976 in the Land and Building Department, Government of NCT of Delhi during the period from 23.8.1995, failed to maintain absolute integrity and devotion to duty in as much as he passed order No.CAD/11790-91/95- ULC/589-90, dated 1.11.1995 assessing that the share of land held by M/s Chavan Rishi Constructions and 19 other firms and individuals in Khasra Nos.594/564/202 and 203 admeasuring 10 bigha and 14 biswa in revenue estate of village Malikpur Chhavani, Delhi was within the permissible ceiling limit and that the declarants held no excess vacant land in the said properties, whereas the said assessment was found to have been carried out by Shri S.S. Rathore in a perfunctory manner and in utter disregard of the facts and circumstances of the case and provisions of law contained in the Urban Land (C&R) Act, 1976.3 O.A.No.288/2013
The said Shri S.S. Rathore by his above actions acted in a manner unbecoming of a government servant and thereby contravened the provisions of Rule 3 (1)(i) and (ii) of the CCS (Conduct) Rules, 1964."
2.3 The applicant submitted his Annexure A-4 reply dated 26.03.2001 to the charge sheet. The disciplinary authority, however, was not convinced with his reply and consequently decided to hold disciplinary inquiry against him and appointed inquiry officer (IO) and presenting officer (PO) for the purpose. The IO submitted his impugned Annexure A-2 inquiry report dated 27.07.2006 to the disciplinary authority, concluding therein that the charge against the applicant stood proved. The concluding part of IO‟s report is extracted below:-
"Conclusion In view of the above findings it is clear that Orders dated the 1st November, 1995 passed by the charged officer while acting as Competent Authority under the ULCR Act, 1976 was passed in a perfunctory manner. Hence the charge is proved."
2.4 Acting on the IO‟s report, the President of India, being the disciplinary authority of the applicant, vide an impugned Annexure A-1 penalty order dated 12.11.2012, imposed the penalty of reduction to the Grade Pay of the applicant from `7600/- to `5400/- on permanent basis. The operative part of penalty order reads as under:-
"9. Now, therefore, the President after considering the facts and circumstances of the case, has decided to impose the penalty of reduction to the grade with grade pay of Rs.5400/- (in the corresponding time scale of pay) from the grade with grade pay of Rs.7,600/- permanently, which shall be a bar to promotion during the period of such reduction imposed on the said Shri S.S. Rathore, JAG- II officer of DANICS and orders accordingly."4 O.A.No.288/2013
Since the penalty order has been passed by the President of India, there is no provision of appeal.
The applicant, aggrieved by the impugned Annexure A-1 penalty order and impugned Annexure A-2 inquiry report, has approached this Tribunal in the instant O.A. praying for the relief as indicated in paragraph (1) above.
3. The applicant has pleaded the following important grounds in support of the relief claimed:-
3.1 The applicant cannot be punished for an act done in discharge of his official duty while functioning as a quasi judicial authority. The assessment order dated 01.11.1995 passed by the applicant in his capacity as „competent authority‟ under the ULCR Act was a bona fide act of the applicant on the basis of materials placed before him.
3.2 No allegation of corruption or bad motive has been alleged against the applicant for passing the assessment order.
3.3 The applicant enjoys indemnity under Section 40 of ULCR Act in respect of the orders passed by him as the competent authority under the Act with good faith.
3.4 The assessment order dated 01.11.1995 issued by the applicant was later quashed by the Lt. Governor, Delhi vide order dated 22.09.1998 in the appellate proceedings under the ULCR Act.5 O.A.No.288/2013
3.5 Any error in law or in judgment cannot be construed as culpable misconduct entailing penalty.
3.6 The charge sheet was issued to the applicant in the year 2001 in regard to assessment order dated 01.11.1995 passed by the applicant in his capacity of competent authority. Such a charge sheet was uncalled for in view of the assessment order itself having been set aside by the appellate authority. Furthermore, the ULCR Act itself was repealed in the year 1999 much before the charge sheet was issued.
3.7 From the Annexure A-1 penalty order itself, it could be seen that the advice of Union Public Service Commission (UPSC) dated 25.10.2012 has been acted upon by the disciplinary authority in passing the penalty order but the same was not served upon the applicant for his representation / comments before the penalty was passed.
3.8 The inquiring authority has relied on some materials collected behind the back of the applicant. In this regard, it is stated that the IO has mentioned that he had perused memorandum of article of association of all the companies and that such memorandum of article of association of all these companies had been produced during the inquiry proceedings and were available on record, but such documents were never made available to the applicant during the inquiry proceedings.
3.9 Mr. Vijay Kumar, IAS, the then Joint Secretary (Land & Building), Govt. of Delhi, who was PW-1 in the inquiry proceedings, was required to 6 O.A.No.288/2013 be cross examined by the applicant but the IO did not afford such an opportunity to the applicant.
4. Pursuant to the notice issued, the respondents entered appearance.
Reply was filed on behalf of respondent No.1 only. During the hearing on 19.09.2014, learned proxy counsel for respondent No.2 submitted that since no relief has been sought against the said respondent, it has been decided by respondent No.2 not to file any reply.
5. Respondent No.1, in its reply, has broadly made the following averments:-
5.1 The applicant, while working as the competent authority under the ULCR Act from 23.08.1995 to 28.07.1997, had passed the assessment order dated 01.11.1995 in a case in perfunctory manner and has erroneously held that the owners of the said property did not possess excess vacant land in the concerned properties. He has thus acted in a manner unbecoming of a government servant and has convened the provisions of Rule 3 (1) (i) & (ii) of the CCS (Conduct) Rules, 1964.
5.2 The properties bearing khasra No.203 (10 bigha and 10 biswa) and khasra Nos.594/564/207 (7 bigha and 4 biswa), totaling 17 bigha and 14 biswa, situated in the revenue estate of village Malikpur Chhavani, Delhi, had been purchased by one Mr. Rati Ram. After his death, Mrs. Ram Pyari (wife) and Mr. Kanwal Singh (son) became the owners of the said properties, who sold the properties to 17 persons in various parcels of land 7 O.A.No.288/2013 through separate sale deeds dated 02.06.1989, who, in turn, sold those land parcels to 20 firms / individuals.
5.3 The original owners of the said properties were required to comply with the provisions of Section 6 (1) of the ULCR Act and to file a statement with the competent authority before they sold the properties. The applicant, being the competent authority, ought to have strictly enforced the provisions of Section 6 (1) of the ULCR Act in true letter and spirit, but instead decided to accept separate returns filed by 20 companies / individuals, who were the new owners of the land parcels. The applicant thus wrongly concluded that holdings of such declarants were within the permissible ceiling and that the declarants held no excess vacant land. 5.4 The action on the part of the applicant would have facilitated the said 20 declarants to legitimize the illegal transfers of the said properties in their names and ownership, and would have enabled them to divert the land use of the properties for the purpose of constructing group housings. This, however, was, prevented due to timely intervention of the Lt. Governor, Delhi, who was pleased to quash the assessment order dated 01.11.1995 passed by the applicant, vide order dated 22.09.1998 in appeal. 5.5 The applicant prima facie had indulged in misconduct within the meaning of Rule 3 (1) (i) of the CCS (Conduct) Rules, 1964, for which he was subjected to disciplinary proceedings.
5.6 Finally, after obtaining the advice of Central Vigilance Commission (CVC) and UPSC, the disciplinary authority has imposed the penalty of 8 O.A.No.288/2013 reduction of grade pay of the applicant from `7600/- to `5400/- permanently vide impugned Annexure A-1 order.
5.7 The irregularities committed by the applicant are not an error of judgment delivered in the capacity of a quasi judicial authority. On the contrary, the applicant has made the assessment of the said properties in a perfunctory manner and has passed the order dated 01.11.1995 in utter disregard of the provisions of law and facts. He made no effort to examine that the land in question was agricultural land and wrongly declared as urbanized. The ownership of the declarants to the said properties was illegal as per the provisions of Sections 6 (1) & 5 (3) of ULCR Act. 5.8 The applicant is trying to gain immunity / undue advantage and shield himself under the cover of Section 40 of the ULCR Act.
6. The applicant has filed a rejoinder to the reply filed on behalf of respondent No.1, in which, he, besides reiterating his averments in the O.A., has stated that he has passed the assessment order dated 01.11.1995 in a quasi judicial capacity, for which he cannot be subjected to any disciplinary proceedings. The applicant has quoted certain judgments in support of his contention, which we shall be referring to in the later paragraphs.
7. On completion of pleadings, the case was taken up for hearing the arguments of learned counsel for the parties on 27.09.2017. Arguments of Mr. Ajesh Luthra, learned counsel for applicant and that of Mr. R N Singh, 9 O.A.No.288/2013 learned counsel for respondent No.1 were heard. There was nemo on behalf of respondent No.2 on that date.
8. Mr. Ajesh Luthra, learned counsel for applicant emphasized that the applicant had acted in the capacity of a quasi judicial authority and any order passed by him under the ULCR Act was appealable to the Lt. Governor, Delhi. The assessment order in question dated 01.11.1995 passed by the applicant has been quashed by the Lt. Governor, Delhi vide his order dated 22.09.1998 in his capacity of the appellate authority under the ULCR Act. Mr. Luthra further argued that a similar matter had been adjudicated by this Tribunal in the case of Rajesh Kumar Bhardwaj v. Govt. of NCTD & another (O.A. No.1307/2015) decided on 05.04.2016 and the disciplinary proceedings therein have been quashed and set aside precisely for this reason.
9. Mr. Luthra has argued that respondent No.1 has acted on the advice of the UPSC in passing the impugned Annexure A-1 penalty order but a copy of UPSC‟s advice was not made available to the applicant for his response / representation before the penalty order was passed, and thus the ratio of law laid down by the Hon‟ble Apex Court in the case of Unon of India & others v. S K Kapoor (Civil Appeal No.5341/2006) decided on 16.03.2011, has been violated.
10. Per contra, Mr. R N Singh, learned counsel for respondent No.1 submitted that the applicant did not discharge his duty diligently as competent authority under the ULCR Act and that he passed the assessment order dated 01.11.1995 under the said Act in a perfunctory 10 O.A.No.288/2013 manner. Mr. Singh drew our attention to the following extracts of the statement of imputation of misconduct to buttress his argument:
"The assessment of the said properties by the said Shri S.S. Rathore was made in a perfunctory manner and he passed the aforesaid order dated 1.11.1995 in utter disregard of the provisions of law and facts and circumstances of the case in as much as he made no effort to examine the case in its entirety and ignored the basic facts that the land in question was not agricultural land as held by him during the assessment, but was declared as urbanized and included as a part of the Model Town in the Master Plan Delhi, 1962, and that the transfer of the said properties in the names of the declarants and the ownership by them was illegal as it was in contravention of the provisions contained in section 6 (1) read with section 5 (3) of the Urban Land (C&R) Act, 1976 and, therefore, the declarants were not entitled to be issued the assessment order by the Competent Authority. The said action on the part of the said Shri S.S. Rathore would have facilitated the said declarants to legitimize the illegal transfer of the said properties in their names and the ownership of the said properties by them also would have enabled them to divert the land use of the said properties for the purpose of constructing group housing, but for the intervention of the Hon‟ble Lt. Governor of Delhi who quashed the said order of assessment dated 1.11.95 passed by the said Shri S.S. Rathore through his order dated 22.9.1998."
11. Mr. Singh argued that if an officer exercising quasi judicial power acts negligently or recklessly, he is liable to be punished for violation of the Conduct Rules. In this regard, he placed reliance on the judgment of the Hon‟ble Supreme Court in the case of Union of India & others v. K K Dhawan, AIR 1993 SC 1478. He particularly drew our attention to paragraph 28 of the said judgment, which is extracted below:
"28. Certainly, therefore, the officer who exercises judicial or quasi- judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be 11 O.A.No.288/2013 questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:-
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party-,
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."
Mr. Singh further submitted that similar view has been taken by the Hon‟ble Apex Court in the case of Union of India & others v. Duli Chand, 2006 SCC (L&S) 1186.
12. Concluding his arguments, the learned counsel submitted that the indemnity prescribed under Section 40 of ULCR Act is against any court case and not against departmental action.
13. Replying to the arguments of Mr. Singh, Mr. Luthra drew our attention to the judgment of Hon‟ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India & others, JT 1999 (5) SC 366 to reinforce his argument that action against the applicant cannot be taken for acts performed by him in the capacity of a quasi judicial 12 O.A.No.288/2013 authority. Mr. Luthra specifically drew our attention to the following paragraphs of the said judgment:-
"41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed 'favour' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi judicial authority. It must be kept in mind that being a quasi judicial authority, he is always subject to judicial supervision in appeal.
42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge- sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.13 O.A.No.288/2013
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed."
14. Mr. Luthra further submitted that the judgments relied upon by learned counsel for respondent No.1 have been considered and analyzed by the Hon‟ble High Court of Judicature at Madras in Dr. G. Sreekumar Menon v. Union of India & others (Writ Petition No.15356/2007) decided on 28.01.2009 and it has been concluded therein as under:-
"24. In our considered opinion, the ratio of the latest decision of the Supreme Court in Ramesh Chander Singh's case would be applicable in the absence of specific imputation of dishonesty, lack of bona fide or utter negligence in discharge of duties and initiation of departmental proceedings is required to be quashed. Incidentally it may be pointed out that even though the appellate authority had set aside the order passed by the present petitioner, subsequently, in further appeal, CESTAT had set aside the order of the appellate authority and had restored the order which had been passed by the present petitioner. In view of this subsequent event, even the main basis for the initiation of the disciplinary proceedings, namely, the alleged illegal and erroneous order, is no longer available. In the changed circumstances it would not be appropriate to continue the disciplinary proceedings."
15. We have considered the arguments of learned counsel for the parties. Admittedly, the applicant has passed the assessment order dated 01.11.1995 as the competent authority under the ULCR Act. He was discharging the functions of a quasi judicial authority in that capacity. Section (40) of the ULCR Act provides specific indemnity to the officer in respect of anything, which is in good faith done under this Act. The applicant has passed the assessment order dated 01.11.1995 genuinely believing that the 20 declarants, who were the second purchasers of properties bearing khasra No.203 (10 bigha and 10 biswa) and khasra Nos.594/564/207 (7 bigha and 14 O.A.No.288/2013 4 biswa), totaling 17 bigha and 14 biswa, situated in the revenue estate of village Malikpur Chhavani, Delhi, were indeed the legitimate the owners, and that the parcels of the land held by them were urbanized. This could be an error of judgment. ULCR Act provides for appeal against such order before the Lt. Governor, Delhi. In the instant case, the order dated 01.11.1995 has been set aside by the Lt. Governor, Delhi vide order dated 22.09.1998. There is no allegation of corruption or any illegal gratification against the applicant for passing the order dated 01.11.1995/
16. We have also considered the judgments of Hon‟ble Supreme Court relied upon by the rival parties. From these judgments, it is quite evident that an officer acting in the capacity of a quasi judicial authority cannot be subjected to legal action, except when he has committed gross negligence in the performance of such duty, as held by the Apex Court in Duli Chand's case (supra). In this judgment, the Hon‟ble Apex Court has discussed its earlier judgments in K K Dhawan and Zunjarrao Bhikaji Nagarkar (supra), and has endorsed the judgment in K.K. Dhawan as under:-
9. In our opinion, Nagarkar case was contrary to the view expressed in K.K. Dhawan case. The decision in K.K. Dhawan being that of a larger Bench would prevail. The decision in Nagarkar case therefore does not correctly represent the law. Inasmuch as the impugned orders of the Tribunal and the High Court were passed on the law enunciated in Nagarkar case this appeal must be allowed. The impugned decisions are accordingly set aside and the order of punishment upheld. There will be no order as to costs."
17. In K K Dhawan's case (supra), the Hon‟ble Apex Court has listed six instances when disciplinary action can be taken against an officer, who 15 O.A.No.288/2013 has discharged his duty as quasi judicial authority. These instances have been reproduced in paragraph (11) of this order
18. We have carefully analyzed the case of the applicant, vis-à-vis, the above six parameters laid down by the Hon‟ble Apex Court in the case of K K Dhawan (supra). We are of the considered opinion that the applicant has not indulged in any misconduct in terms of these parameters. As observed hereinabove, there has been no allegation of corruption or illegal gratification against the applicant.
19. From the impugned Annexure A-1 order, we notice that the advice of UPSC dated 25.10.2012 was not made available to the applicant for his comments/representation before the impugned Annexure A-1 order was passed. Hence, the ratio of law laid down by the Apex Court in S K Kapoor's case (supra) has been grossly violated. The Hon‟ble Apex Court in the said case has observed as under:-
"We have perused the impugned order and find no infirmity in the same.
It is a settled principle of natural justice that if CIVIL APPEAL NO. 5341 OF 2006 any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785.
We do not agree.16 O.A.No.288/2013
In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable.
There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the CIVIL APPEAL NO. 5341 OF 2006 same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice.
This is also the view taken by this Court in the case of S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case (supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs."
20. We are of the considered opinion that since the applicant has already retired from service on 30.06.2013 on attaining the age of superannuation and the disciplinary proceedings were started against him for an act 17 O.A.No.288/2013 performed by him in the year 1995, on the ground of natural justice and equity as well, the impugned Annexure A-1 order deserves to be set aside.
21. In the conspectus of discussions in the foregoing paragraphs, the O.A. is allowed. Impugned Annexure A-1 penalty order dated 12.11.2012 as well as Annexure A-3 charge sheet dated 14.03.2001 are quashed and set aside. No order as to costs.
( K.N. Shrivastava ) ( Justice Permod Kohli ) Member (A) Chairman /sunil/