Central Administrative Tribunal - Mumbai
Virendra Kumar Agrawal vs M/O Finance on 28 November, 2024
1 OA No.1025/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.1025/2022
Dated this Thursday the 28th day of November, 2024.
CORAM: Justice M.G. Sewlikar, Member (J)
Shri Santosh Mehra, Member (A)
Virendra Kumar Agarwal,
(son of Dr. Brahmanand Gupta), Date of birth: 15.02.1965,
Age 57 years 10 months, Retired as: IRS
(Indian Revenue Service) Additional Commissioner,
(Group "A" post) Customs & Central Excise,
in the office of Additional Commissioner, Ministry of Finance,
Department of Revenue, Central Board of Excise and
Customs, New Delhi and residing at: 1302, Sanghvi Heights,
Shaikh Mistry Road, Wadala (East), Mumbai 400037, State of
Maharashtra, email id: [email protected],
Mob cell: 9322478438. ... Applicant
(By Advocate Shri R. G. Walia)
VERSUS
1. Union of India through its
Under Secretary to The Government of India (Revenue)
Central Board of Excise and Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi 110001.
2. Principal Chief Commissioner of CGST
Mumbai CGST Bhavan, M.K. Road,
Churchgate, Mumbai 400020.
3. Inquiry Officer'
Commissioner of CGST & Central Excise,
2 OA No.1025/2022
Thane Rural, 4th Floor, CGST and
Central Excise Building, Bandra Kurla Complex,
Bandra (East), Mumbai 400051. ... Respondents
(By Advocate Mr. R.R.Shetty a/w Mr. Sachin Patil )
Reserved on : 25th September, 2024.
Pronounced on: 28th November, 2024.
ORDER
Per: Santosh Mehra, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"8.(a) This Hon'ble Tribunal may graciously be pleased to call for the records and proceedings which led to the issuance of the impugned Order dated
02.12.2022 i.e. Annex. "A1" and after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same.
(b) This Hon'ble Tribunal may graciously be pleased to call for the records of the case pertaining to conducting of Departmental inquiry pursuant to Chargesheet dated 08.09.2010 i.e. "Annex. A2" which is completely based on identical facts, documents and witnesses to the criminal Chargesheet filed before the Special Court CBI in Special Case No.21 of 2010, and after going through its proprietary, legality and constitutional validity be pleased to Order and direct the Respondents to keep in abeyance the Departmental inquiry pursuant to Chargesheet dated 08.09.2010 till the decision in the Special Case No.21 of 2010 pending before the Special Court CBI.
(c) This Hon'ble Tribunal may graciously be pleased to Order and direct the Respondents not to proceed with 3 OA No.1025/2022 the Departmental inquiry till the disposal/till the trial is over in Special Case No.21 of 2010 before the Special Court CBI.
(d) Any other and further order as this Hon'ble Tribunal deems it fit and proper in the nature and circumstances of the case may be passed.
(e) Costs of the Original Application may be provided for".
2. The facts in brief are as follows;
2.1 The Applicant had filed Original Application No.521 of 2022 which came to be disposed of vide Order dated 6th October, 2022 whereby the Tribunal had directed the respondents to decide the representation dated 04th March, 2022 within four weeks and directed to keep the disciplinary proceedings in abeyance till the disposal of the representation. Accordingly, the respondents decided the representations by passing order dated 2nd December, 2022.
2.2 The learned counsel for the applicant stated that in the earlier Original Application, he had challenged the impugned act of the Respondents of conducting a Departmental inquiry pursuant to issuance of a Chargesheet dated 08th September, 2010 even though a Criminal Case before the Special Court CBI i.e. Special Case No.21 of 2010 4 OA No.1025/2022 based on the same set of facts, documents and witnesses is pending since the year 2010. All the documents and witnesses as listed in the Departmental Chargesheet dated 8th September, 2010 are exactly identical to the List of Witnesses and Documents listed in the Special Court by the CBI. Infact, the said documents and the case have been forwarded by the CBI to the Department and due to pressure and coercion by the CBI, the said Departmental Chargesheet was issued against the Applicant. Here, it is also pertinent and relevant to note that the facts, documents and witnesses are identical in both the Departmental Chargesheet and the charge-sheet filed by the CBI and there are about 880 documents and 80 witnesses which needs to be examined, cross-examined. These documents and witnesses are common in special case and departmental enquiry. Further, the learned counsel for the applicant mentioned that a bare perusal of the Chargesheet filed by the CBI in that Special Case and the Departmental Chargesheet dated 08th September, 2010 would reveal that the case involves serious complicated question of law and facts and in such circumstances the Respondents 5 OA No.1025/2022 ought to have kept the Departmental inquiry in abeyance till the decision is rendered in the Criminal Case. The impugned Order dated 2nd December, 2022 seems to be a product of pressure, dictate and guidance of the CBI inasmuch as the Respondents themselves even in the Reply filed in Original Application No.521 of 2022 had categorically stated that " The Disciplinary Authority has taken up the matter with the CBI vide letter dated 11.7.2022 for their advice and the same is awaited." It is clear that there has been total non-application of mind by the concerned authority and it is not understood under what law or rule the Disciplinary Authority had taken up matter with CBI vide their letter dated 11th July, 2022. Thus, the entire action of the Respondents has not been fair, legal and it is clear that the action of the Respondents has been arbitrary and unwarranted. Learned counsel for the applicant also stated that the respondents have decided nothing except having reproduced the contents of the High Court and Supreme Court Orders and nothing else. These aspects have not been considered by the concerned authorities and, therefore, the impugned Order dated 02 nd December, 2022 is 6 OA No.1025/2022 on the face of the record bad and suffers from non-application of mind and wholly illegal.
2.3 The Applicant at the relevant time was working as Additional Commissioner, Central Excise and Customs at Vadodara-II when a case came to be registered by the CBI against him for commission of criminal misconduct u/s 109 IPC r/w 13(2), 13(1)(e) of PC Act 1988. Essentially, a case was registered against the Applicant for possessing assets disproportionate to his known source of income. 2.4 It is further alleged/averred that the charge-sheet as filed by the CBI against the applicant is dated 06 th March, 2010 and the Departmental Charge-sheet which came to be issued against the applicant is dated 08th September, 2010. The applicant was a Group 'A' officer and he belongs to the Batch of 1990 (IRS) (Customs and Central Excise). The learned counsel for the applicant also states that the Chargesheet as issued to the Applicant by the Department is against the law as laid down by the Hon'ble Apex Court in the case of Union of India & Ors. Vs. B.V. Gopinath, AIR 2014 SC 88, 2014 (1) SCC 352 decided on 05th September, 2013. The Applicant 7 OA No.1025/2022 apprehends that the Department had only taken initial approval for issuance of a Chargesheet from the Competent Authority, however, the final Chargesheet seems to have not been approved after due application of mind by the Hon'ble Finance Minister, before the same was issued in the name of Hon'ble President of India.
2.5 Learned counsel for the applicant further stated that the charge against the Applicant pertained to disproportionate assets to the tune of Rs. 1,06,89,194/-. The learned counsel for the applicant mentioned that the said charge-sheet is false and fabricated case inasmuch as the income and assets of Applicant's wife who is also a Govt. employee working as Office Superintendent in Material Management Department, Central Railway, Mumbai, has been clubbed by the CBI to enable it to build up a false case against the Applicant. The case involves serious complicated question of law and facts with regard to the assets and liabilities of the Applicant and what can be considered as Applicant's individual assets for the charge pertaining to disproportionate assets. These are complicated questions of 8 OA No.1025/2022 law. The Applicant had moved an application for Discharge before the Special Court vide Order dated 15 th January, 2013, the said application came to be allowed and the Applicant was discharged in the said Special Case No.21 of 2010. The Criminal Revision Application No.323 of 2013 preferred by the CBI against the order of discharge came to be dismissed by High Court vide Order/ judgment dated 14 th December, 2015. The CBI also registered a case against the wife of the Applicant and she was made a co-accused and her application for discharge before the Special CВІ Court came to be dismissed and on challenge before the Hon'ble High Court of Bombay by her in C. R A No.284 of 2013, the same was allowed by the Hon'ble High Court of Bombay. Thus, before the Hon'ble High Court of Bombay both the Applicant as well his wife stood discharged in the said Criminal Case. 2.6 Thereafter, the CBI approached the Hon'ble Supreme Court of India by filing Criminal Appeal Nos. 1489- 1490 of 2019 and vide Order dated 25 th September 2019, the Hon'ble Supreme Court of India set aside the Order dated 14th December, 2015 and 15th January, 2013 passed by the High 9 OA No.1025/2022 Court. The proceedings in Special Case No.21 of 2010, therefore, came to be restored before the Special Court. 2.7 The learned counsel for the applicant stated that he challenged the Departmental inquiry initiated vide Chargesheet dated 8th September, 2010 on the ground that the same has been issued in violation of the Rules and the law as laid in the case of Hon'ble Apex Court in the case of B.V. Gopinath (supra) and pending the said criminal case, it will be highly prejudicial to the Applicant, if he is forced to participate in the Departmental inquiry. 2.8 The Inquiry Officer had conducted effective hearings on 24th May 2022, 25th May 2022, 26th May 2022, 01st June 2022, 02nd June 2022 and 15th June 2022 and during the said hearings about 30 witnesses have been called. Learned counsel for the applicant states that the present Original Application is primarily filed only on the ground and for the relief that the Departmental inquiry in such a complicated matter where complicated question of law and facts are involved, the act of the Respondents to conduct the Departmental inquiry against the Applicant will cause serious 10 OA No.1025/2022 prejudice to him inasmuch as he will be forced to reveal his defence in the said Departmental inquiry which will cause serious prejudice to him while conducting Special Case No.21 of 2010. Here, it is relevant to note that the Applicant has already been pre-maturely retired from service under FR 56(j) vide order dated 18th June, 2019. On this background, the inquiry officer should have stayed the inquiry till the conclusion of criminal trial.
2.9 The Applicant respectfully submits that the only relief that he is claiming by way of this Original Application is that he may not suffer in the matter of his defence as the Inquiry Officer is hell-bent to complete the inquiry on war-footing basis.
2.10 Learned counsel for the applicant asserted that many assets belonging to his wife are counted towards the Applicant's assets. This is absolutely illegal and wrong. The wife of the Applicant is an independent official working in the Railways and her income is separate and cannot be counted towards the Applicant's income or assets. Thus, there are serious complicated question of law and facts involved in the 11 OA No.1025/2022 present case which cannot be gone into in a domestic Departmental inquiry.
2.11 The learned counsel for the applicant has invited our attention to Article of Charge II related to the purchase of a flat in the name of the wife of the applicant. He has stated that the wife of the applicant was an independent entity. As a Government Servant, she had her own sources of income. For her conduct she was distinctly and separately responsible to her Government department and acquisition of property by her cannot be the ground of imputation against the applicant. The learned counsel also highlighted the fact that this Article of Charge was based on the sole statement of Shri D.D Gupta. He further added that Shri D.D Gupta had completely denied his original statement to the CBI. There was no other evidence cited by the Inquiring authority, neither documentary nor oral to buttress this Article of Charge.
3. Learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr., (1993) 3 SCC 679. He invites our attention to the relevant 12 OA No.1025/2022 para of the judgment which reads as under:
".......Bimal Kanta Mukherjee Vs. Newsman's Printing Works, 1956 LAC 188.
In the present case, criminal and departmental proceedings were based on identical set of facts, namely, raid conducted at the appellant's residence and recovery of incriminating articles therefrom. Findings recorded by the Enquiry Officer indicate that charges against the appellant were sought to be proved by police officers and Panch witnesses who had raided the appellant's house and had affected the recovery. They were the only witnesses examined by the Enquiry Officer who by relying upon their statements, came to conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of entire evidence, came to a conclusion that no search was conducted nor was any recovery made from the appellant's residence. The appellant was acquitted by throwing out the whole case of the prosecution. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the findings that the 'raid and recovery' at his residence were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.
4. Learned counsel for the applicant has also relied upon the judgment of the Hon'ble Apex Court in the case of Delhi Cloth & General Mills Ltd. vs. Kushal Bhan,1960 (3) SCR 227 = AIR 1960 SC 806 = 1960 LLJ 520 (SC). It was observed as under :
13 OA No.1025/2022
"It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Bimal Kanta Mukherjee vs. M/s Newsman's Printing Works, 1956 LAC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
5. In the case of Tata Oil Mills Co. Ltd. Vs. Workmen, AIR 1965 SC 155: (1964) 7 SCR 555, in which, inter alia, laid down as under :
"There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, AIR 1960 SC 806 it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case."
6. Learned counsel invites our attention to the judgment of the Hon'ble Supreme Court in the case of 14 OA No.1025/2022 Kusheshwar Dubey Vs. Bharat Coking Coal Ltd., (1988) 4 SCC
319. It was laid down as under:
"...7. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline."
The Court further observed as under:
(SCC p. 323, para 8) "8. In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of injunction which had been affirmed in appeal."15 OA No.1025/2022
7. The learned counsel for the respondents has strongly and vehemently contested the above mentioned claims and assertions of the learned counsel for the applicant.
Again, the learned counsel for the respondents has given brief account of the entire facts and circumstances of the case, commencing from the initial registration of a criminal case against the applicant by the CBI in 2010, till date.
8. The learned counsel for the respondents mentioned that since the filing of OA No.1025/2022, the Charged Officer has made thirteen (13) representations from 30th December, 2022 to 08th April, 2024 (details of which are given in para no. 19 of this order). The learned counsel mentioned that in all these representations, the applicant wanted the departmental enquiry to be stayed. The charged officer/applicant has not only challenged the conduct of departmental proceedings but has continuously refused to attend the hearing on the grounds that this Tribunal is actively, hearing the case, although as on date no stay or any order in his favour has been granted by the Tribunal. 16 OA No.1025/2022
9. The learned counsel for the respondents further stated that the Charged Officer/applicant has not disclosed his list of defense documents and defense witnesses stating that the matter is still pending with the Hon'ble CBI Special Court, Mumbai and disclosing the list of defense documents and defense witnesses will jeopardize his prosecution case before the Hon'ble CBI Special Court, Mumbai. He had agreed to proceed with examination of PWs. Therefore, Inquiry proceeded with the examination of prosecution witnesses only. Thereafter, Regular Hearing in the case was commenced from 04th May, 2022 and within a span of 2-3 months, 32 Prosecution Witnesses have been called for giving depositions in the inquiry, out of which statement of 23 Prosecution Witnesses have been recorded and taken on record during the course of Regular Hearing. Further Charged Officer has refused to give list of Defence documents and Defence Witness till his last email dated 11 th March, 2024. Vide e-mail dated 11th March, 2024 for first time he made request for Defence Documents following which a meeting was called on 20th March, 2024, however his request was considered and it 17 OA No.1025/2022 was accepted with respect to 1 documents and for the rest it was denied on the grounds of relevance. However, till date he has not given list of Defence Witness.
10. The learned counsel for the respondents has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr., (1993) 3 SCC 679 decided on 30 th March, 1999 wherein the Hon'ble Apex Court has held thus:
".....There is a consensus of judicial opinion on a basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. Basis for this proposition is that proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. In departmental proceedings, factors operating in the mind of the disciplinary authority may be many, such as enforcement of discipline, or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt.
.........Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their 18 OA No.1025/2022 being conducted simultaneously, though separately; (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case; (iii) Whether the nature of charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of the offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge- sheet; (iv) Factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay departmental proceedings but due regard has to be given to the fact that departmental proceedings cannot be unduly delayed; (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of pendency of criminal case, can be resumed and proceeded with, so as to conclude them at an early date. The purpose is that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
10.1 The entire case-law was reviewed once again in State of Rajasthan Vs. B.K. Meena, (1996) 6 SCC 417 wherein it was laid down as under:
"...14. It would be evident from the above decisions that each of them starts with the indisputable 19 OA No.1025/2022 proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', a 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is also not an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be good ground for a going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and 20 OA No.1025/2022 any d charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above."
This decision has gone two steps further than the earlier decisions by providing:
1. The "advisibility", "desirability" or "propriety"
of staying the departmental proceedings "go into the scales while judging the advisability or desirability of staying the disciplinary proceedings" merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law.
21 OA No.1025/202210.2 In another case, namely, Depot Manager, A.P. SRTC Vs. Mohd. Yousuf Miya, 8 (1997) 2 SCC 699 again it was held that there is no bar to proceed simultaneously with the departmental enquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law.
11. The Respondents have relied upon the judgment of the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan & Ors., Vs. T. Srinivas, (2004) 7 SCC 442 decided on 5th August, 2004 wherein the Hon'ble Supreme Court has held that;
"....Both the Tribunal and the High Court decided the case on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges. Hence, the impugned order of the Tribunal and the High Court are set aside.."
12. The Respondents have also relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors., Vs. Upendra Singh, (1994) 3 Supreme Court Cases 357 : 1994 Supreme Court Cases (L&S) 768: (1994) 207 22 OA No.1025/2022 ITR 782. It was held that:
".....The Central Administrative Tribunal examined the correctness of the charges against the respondent on the basis of the material produced by him and quashed the same. Allowing the appeal of the Union of India, the Supreme Court held that:
In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no 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. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be".
13. The learned counsel for the respondents placed further reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. K.K. Dhawan, (1993) 2 SCC 56, which relied on Union of India Vs. A.N. Saxena, (1992) 3 SCC 124, referred to Appeal allowed. The relevant portion reads as under:
23 OA No.1025/2022
".....3. Against the interim stay order granted by the Tribunal, the Union of India approached this Court by way of Civil Appeal No. 4316 of 1991. The appeal was allowed by this Court by its order dated September 10, 1992 and the Tribunal was directed to "deal with the matter in the light of the observations made by this Court in Union of India v. A.N. Saxena". It was further directed that "in the meanwhile the disciplinary proceedings initiated against the respondent on the basis of the memorandum dated February 7, 1991 would continue". It is necessary to notice the observations in the said judgment. The Bench first dealt with the submission that no disciplinary proceedings can be taken against an officer in respect of his judicial or quasi-judicial functions. It rejected the contention following the decision of this Court in Union of India v. A.N. Saxena. While rejecting the said contention, the Bench drew particular attention to the following observations in A.N. Saxena: (SCC p. 127, para 6) "In the first place, we cannot, but confess our astonishment at the impugned order passed by the tribunal. In a case like this the tribunal, we feel, should have been very careful before granting stay in a disciplinary proceeding at an interlocutory stage. The imputations made against the respondent were extremely serious and the facts alleged, if proved, would have established misconduct and misbehaviour. It is surprising that without even a counter being filed, at an interim stage, the tribunal without giving any reasons and without apparently considering whether the memorandum of charges deserved to be enquired into or not, granted a stay of disciplinary proceedings as it has done. If the disciplinary proceedings in such serious matters are stayed so lightly as the tribunal appears to have done, it would be 24 OA No.1025/2022 extremely difficult to bring any wrongdoer to book. We have, therefore, no hesitation in setting aside the impugned order of the tribunal and we direct that the disciplinary proceedings against the respondent in terms of the charge-sheet dated March 13, 1989 shall be proceeded with according to law. In fact, we would suggest that disciplinary proceedings should be proceeded with as early as possible and with utmost zeal."
The Bench further opined that "the present case is fully covered by the aforesaid decision of this Court and considering the facts and circumstances of the present case, in the light of the said decision, the impugned order passed by the Tribunal cannot be upheld". ..............
The Bench directed the Tribunal to deal with the original application in the light of the decision in A.N. Saxena. The Bench directed expressly that the disciplinary proceedings against the respondent were to continue.
4. When the matter went back to the Tribunal, it went into the correctness of the charges on the basis of the material produced by the respondent and quashed the charges holding that the charges do not indicate any corrupt motive or any culpability on the part of the respondent. We must say, we are not a little surprised at the course adopted by the Tribunal. In its order dated September 10, 1992 this Court specifically drew attention to the observations in A.N. Saxena that the Tribunal ought not to interfere at an interlocutory stage and yet the Tribunal chose to interfere on the basis of the material which was yet to be produced at the inquiry. In short, the Tribunal undertook the inquiry which ought to be held by the disciplinary authority (or the inquiry officer appointed by him) and found that the 25 OA No.1025/2022 charges are not true. It may be recalled that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal".
14. Learned counsel for the respondents also referred to the Seven Judge Bench in the case of Ujjam Bai Vs. State of U.P, AIR 1962 SC 1621, 1625 which stated as following:
"..5. ....... If we do not keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no uniformity of approach and there will be the danger of the jurisdiction becoming personalised. The parameters of jurisdiction would vary from Judge to Judge and from Court to Court. (Some say, this has already happened.) Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but not by forgetting the fundamentals. You have to build upon the existing foundations and not by abandoning them. It leads to confusion; it does not assist in coherence in thought or action.
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no 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 26 OA No.1025/2022 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. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court".
15. In the case of H.B. Gandhi, Excise and Taxation Officer-cum-Asessing Authority, Karnal Vs. Gopi Nath & Sons, 1992 Supp (2) SCC 312, the Bench comprising M.N. Venkatachaliah, J (as he then was) AND A.M. Ahmadi, J, affirmed the principle thus: (SCC p. 317, para 8).
"....Judicial review, it is trite, is not directed against the decision but is confined to the decision- making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made."
In the decision of this Court in Union of India Vs. K.K. Dhawan, (1993) 2 SCC 56 the Court held that a disciplinary inquiry can be held even with respect to the conduct of an officer in 27 OA No.1025/2022 discharge of his judicial or quasi-judicial duties. Having said so, this Court set out the situations in which disciplinary action can be taken with respect to the judicial/quasi-judicial conduct. Paragraphs 28 and 29 of the judgment will bring out the ratio:
(SCC p.67, paras 28 and 29).
"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 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:
(1) 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;28 OA No.1025/2022
(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'.
29. The instances above catalogued are not exhaustive....".
xxx xxx xxx
15. For the above reasons, the appeal is allowed, the order of the Tribunal is set aside, the disciplinary inquiry against the respondents shall proceed unhindered and expeditiously. It is in the interest of everyone concerned that the truth or otherwise of the charges is determined at the earliest."
16. Recounting the meandering delays in the conduct of the disciplinary enquiry, the learned counsel for the respondents stated that as regards the Departmental Proceedings, the IO/PO in the matter were appointed vide Order dated 28.08.2017. Inquiry Report in the Departmental Proceedings instituted against the Applicant vide Charge Memo dated 21st September, 2010 is awaited. The delay in conduct of disciplinary inquiry was due to issues relating to availability of complete prosecution documents which incidentally were lying with CBI. Further, vide letter dated 05th July, 2022 Inquiry Officer has informed that the Presenting Officer had 29 OA No.1025/2022 received the legible certified copies of Listed Documents and Prosecution Witness from the Investigating agency, CBI in February, 2022. They were inspected by the Charged Officer on 22nd February, 2022 and subsequently, Preliminary Hearing in the case was held on 25th February, 2022. Thereafter, hearings in the case were held on 09th March, 2022, 17th March, 2022, 31st March, 2022 and 28th April, 2022. Thereafter, Regular Hearing in the case commenced from 04 th May, 2022 and till date, 32 Prosecution Witnesses have been called for giving depositions in the inquiry, out of which statement of 23 Prosecution Witnesses have been recorded and taken on record during the course of Regular Hearing and 03 Prosecution Witnesses have demised. The Regular Hearing in the case was fixed on 22nd June, 2022 and 23rd June, 2022 where in 7 Prosecution Witnesses were called for, however, the Charged Officer vide letter dated 21st June, 2022 informed that he had tested positive for COVID- 19 enclosing positive SARS COV2 Antigen Test report dated 21 st June, 2022. 16.1. It is further submitted that earlier the Applicant had filed OA No. 214/2018 before the this Tribunal against the 30 OA No.1025/2022 order of appointment of Inquiry Officer issued vide F.No. C- 14011/58/2010-Ad.V dated 28th August, 2017 in the matter of Charge Memorandum No. 27/2010 dated 21st September, 2010 issued vide F.No. C- 14011/58/2010-Ad.V(B) seeking relief to quash the Charge Memorandum No. 27/2010 dated 21st September, 2010 and stay the inquiry till hearing and final order in OA.
16.2 While this Original Application No. 214/2018 filed by the Applicant before this Tribunal was still 'PENDING', the Applicant filed the Writ Petition No. 2227 of 2022 before Hon'ble Bombay High Court seeking similar reliefs. The Hon'ble Bombay High Court vide its Order dated 24th June, 2022 in WP No. 2227 of 2022 dismissed the Writ Petition as withdrawn by the Petitioner (Applicant herein) and ordered as under:
"At the request of Mr. Dharmadhikari, learned advocate for the petitioner, this writ petition stands dismissed as withdrawn with liberty to the petitioner to seek relief before the Central Administrative Tribunal, Mumbai. Liberty is also granted to the petitioner to seek early hearing of his original application before the Tribunal."31 OA No.1025/2022
16.3. The Hon'ble Bombay High Court, while dismissing the Writ Petition as withdrawn by the Petitioner (Applicant herein) granted "liberty to the petitioner to seek relief before the Central Administrative Tribunal, Mumbai. Liberty is also granted to the petitioner (Applicant herein) to seek early hearing of his original application before the Tribunal." However, instead of seeking early hearing in his OA No. 214/2018 before the Tribunal as directed by the Hon'ble Bombay High Court vide its Order dated 24th June, 2022 in WP No. 2227 of 2022, the Applicant had filed OA No. 521 of 2022 before this Tribunal.
16.4 Strongly endorsing continuation of the disciplinary inquiry, learned counsel for the respondents stated that it is in the interest of justice to proceed with the departmental proceedings. The applicant shall get due opportunity to prove his innocence during the inquiry proceedings and thus this shall not, in any way, cause prejudice to the applicant. Contesting the averment of the learned counsel for the applicant that the charges in the Criminal case of the CBI and in the departmental proceedings 32 OA No.1025/2022 are same, the learned counsel for the respondents stated that the charges in the departmental inquiry are distinguishable from the prosecution case viz. non-intimation under Rule 18(2) and 18(3) of CCS(Conduct) Rules, 1964 etc., which are not covered in the criminal prosecution filed by the CBI. This has already been acknowledged by the Tribunal in its interim order dated 04th May, 2018 vide para 4, reproduced as under:
"4. Learned Advocate for the applicant submitted that the disciplinary proceeding is initiated for the same set of charge. However, today he has produced comparative statement showing the nature of charges levelled in the disciplinary and in the criminal proceeding. It is obvious hat except Article of charge I, other charges are different."
16.5 The learned Counsel for the respondents also invited the attention of the Tribunal to the fact that the charged officer/ applicant had also made a representation to the President of India vide his letter dated 04 th March, 2022, followed by a reminder dated 28th April, 2022 requesting for keeping the departmental enquiry in abeyance. His representation was rejected by the President of India vide No. F.No.C-14011/58/2010-Ad.V/11111 dated 02nd December, 2022, after a detailed and due consideration of all aspects. 33 OA No.1025/2022 16.6 Therefore, departmental proceedings against Shri Agrawal, the applicant, may be allowed to be completed so that if he is innocent, he gets rid of the charge or if he is found guilty, an appropriate penalty is inflicted on him at the earliest. The learned counsel for the respondents has also invited our attention to the Office Memorandum dated 21 st July, 2016 (Annexure MPR-5) which is reproduced ad-verbatim as follows "quote OFFICE MEMORANDUM Subject: Simultaneous action of prosecution and initiation of departmental proceedings. The undersigned is directed to refer to the Department of Personnel and Training OM of even number dated the 1st August, 2007 on the above subject and to say that in a recent case, Ajay Kumar Choudhary vs Union Of India Through Its Secretary & Anr, Civil Appeal No. 1912 of 2015, (JT 2015 (2) SC 487), 2015(2) SCALE, the Apex Court has directed that the currency of a Suspension Order should not extend beyond three months if within this period a Memorandum of Charges/Charge sheet is not served on officer/employee; the delinquent
2. It is noticed that in many cases charge sheets are not issued despite clear prima facie evidence of misconduct on the ground that the matter is under investigation by an investigating agency 34 OA No.1025/2022 like Central Bureau of Investigation. In the aforesaid judgment the Hon'ble Court has also superseded the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance.
3. In the subsequent paras the position as regards the following issues has been clarified:
(i) Issue of charge sheet against an officer against whom an investigating agency is conducting investigation or against whom a charge sheet has been filed in a court,
(ii) Effect of acquittal in a criminal case on departmental inquiry.
(iii)Action where an employee convicted by a court files an appeal in a higher court.
Issue of charge sheet against an officer against whom an investigating agency is conducting investigation or against whom a charge sheet has been filed in a court
4. It has been reaffirmed in a catena of cases that there is no bar in law for initiation of simultaneous criminal and departmental proceedings on the same set of allegations. In State of Rajasthan vs. B.K. Meena & Ors. (1996) 6 SCC 417 AIR 1997 SC 13 - 1997 (1) LLJ 746 (SC), the Hon'ble Supreme Court has emphasised the need for initiating departmental proceedings in such cases in these words:
It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The 35 OA No.1025/2022 disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings.
5. In Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr,, (1999) 3 SCC 679, the Supreme Court has observed that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
Effect of acquittal in a criminal case on departmental inquiry.
6. The question as to what is to be done in the case of acquittal in a criminal case has been answered by the Hon'ble Supreme Court in R.P. Kapur vs. Union of India & Anr. AIR 1964 SC 787 (a five Judge bench judgement) as follows:
If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow where the acquittal is other than honourable.
7. The issue was explained in the following words by the Hon'ble Supreme Court in the following 36 OA No.1025/2022 words in Ajit Kumar Nag v GM, (PJ), Indian Oil Corporation Ltd., (2005) 7 SCC 764;
Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation.
8. The judgement of the Hon'ble Supreme Court in G.M. Tank vs State of Gujarat (2006) 5 SCC 446 has reaffirmed the principles laid down in R.P. Kapur (supra). In G.M. Tank case, Court 37 OA No.1025/2022 observed that there was not an iota of evidence against the appellant to hold that he was guilty. As the criminal case and the departmental proceedings were based on identical set of facts and evidence, the Court set aside the penalty imposed in the departmental inquiry also.
9. Ratio in the G.M. Tank judgement should not be misconstrued to mean that no departmental proceedings are permissible in all cases of anquittal or that in such cases the penalty already imposed would have to be set aside. What the Hon'ble Court has held that is no departmental inquiry would be permissible when the evidence clearly establishes that no charge against the Government servant may be made out.
Action where an employee convicted by a court files an appeal in a higher court
10. In many cases Government servants who have been found guilty by lower courts and have filed appeals in higher courts represent for reinstatement/setting aside the penalty imposed under Rule 19(i) of the CCS (CCA) Rules, 1965. In such cases, the following observations rvations of the Hon'ble Supreme Court in K.C. Sareen vs C.B.L, Chandigarh, 2001 (6) SCC 584 are to be kept in view:
When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by court of law, judiciousness demands that he should be treated as corrupt until" he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant 38 OA No.1025/2022 becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself.
11. Thus action against a convicted Government servant should be taken straight away under Rule 19(1). An appeal against the conviction or even a stay on the sentence will have no effect unless the conviction itself is stayed.
12. In view of the law laid down in various judgments, including the ones quoted above, in cases of serious charges of misconduct, particularly involving moral turpitude, the Ministries/Departments should keep the following points in view to take prompt action:
(i) All incriminating documents should be seized promptly to avoid their tempering or destruction of evidence. (ii) Particular care needs to be taken for retention of copies of such documents while handing over the same to an investigating agency. These documents may be attested after comparison with the originals.
(iii) In case the documents have been filed in a 39 OA No.1025/2022 court, certified copies of documents may be obtained.
(iv) Documents and other evidence must be examined to see whether any misconduct, including favour, harassment, negligence or violation of rules/instructions has been committed. If there is a prima facie evidence of misconduct, charge sheet under the appropriate rule must be issued.
(v) Court judgments should be promptly acted upon:
(a) in cases of conviction action is to be taken under Rule 19(i) of the CCS (CCA) Rules, 1965;
(b) in cases of acquittal also, if the Court has not acquitted the accused honourably, charge sheet may be issued;
(c) an acquittal on technical grounds or where a benefit of doubt has been given to the accused will have no effect on a penalty imposed under CCS (CCA) Rules, 1965, as while in a criminal trial the charge has to be proved beyond reasonable doubt, in the departmental inquiry the standard of evidence is preponderance of probability
(vi)An appeal by the accused against conviction, but where the conviction has not been overturned/stayed, will have no effect on action taken under Rule 19(i) of the CCS (CCA) Rules, 1965, even if Court has directed stay/suspension of the sentence.
13. All Ministries/Departments are requested to bring the above guidelines to the notice of all concerned officials for compliance.
14. Hindi version follows". Unquote.
40 OA No.1025/2022
17. The learned counsel for the respondents mentioned that though the applicant was compulsorily retired, he was getting provisional pension which was equal to hundred percent of actual pension. All his retirement dues have been settled except for the gratuity. He also stated that the multiplicity of transactions is different from complexity of a case. Multiplicity is pure mathematics and the figures imputed to the acquisition of assets and expenditure etc. can be simply aggregated. Further more, the entire enquiry is based on documentary evidence which clearly indicate exact figures for different items of assets, expenditure and income, distinctively and separately for the applicant and his wife. Hence, there is absolutely no complexity involved , nor any complicated question of law and facts which would come in the way of the conduct of enquiry.
18. The respondents have further relied upon the letter dated 07th May, 2024 of Inquiry Officer/Commissioner addressed to Additional Director General Vigilance, CGST & C. Ex. Thane Rural to show that the inquiry is near completion. He has also assigned reasons as to why enquiry 41 OA No.1025/2022 needs to be completed early. Relevant portion of the letter is extracted below for ready reference:
"........3. The point here is that it is fact the investigation agency has clubbed the income to CO and his spouse which arriving at the quantum of disproportionate assets against the charged officer. These aspects were already brought to your notice vide letter dt. 22.10.2021.
4. That this inquiry has been instituted against the CO only and this inquiry cannot be held against the Spouse of CO who is subject to independent different inquiry proceedings as applicable by the concerned department. Therefore, this inquiry is limited to disproportionate assets attributable to CO only and the basics of bifurcation of assets between Charged Officer & his spouse has taken to be affidavit filed by CBI in Hon'ble High Court. Mumbal as discussed above. As per this affidavit, total disproportionate assets attributable to Charged Officer was to the tune of 47,93,946/- and this fact was taken on record during the proceeding held on 08.04.2022 where in it was agreed that inquiry shall be limited to Charged Officer and not against his spouse who is a government servant with department of Railways.
5. Accordingly, the Presenting Officer had identified 17 witnesses which were not pertaining to the case against CO and these witnesses were decided not to be called on the ground of relevance. Subsequently, more 4 witnesses were added to the list. In other words, only 59 prosecution witnesses were found to be relevant for the case against 42 OA No.1025/2022 Charged Officer.
5.1 Out of these 59 witnesses, 38 witnesses have deposed as on date, 07 have been reported to have expired, only 14 witnesses left to be examined (details are annexed).
5.2 Of these 14 witnesses, 3 have been scheduled to be examined in the First week of June, as Presenting Officer has proceeded on election duty, 11 witnesses could not be traced at the given addresses/contact no.
6. Défense Witnesses and Defense Document: Thus the Charged Officer has consistently refused to disclose his defense in the inquiry on the grounds that it would jeopardise his defence in the ongoing criminal case against him and he has not yet submitted any list of defense witnesses despite ample opportunity being given. Only in Feb 2024 vide mail dt. 28.02.2024, he requested for 21 documents as his defense documents out of which 01 was admitted and the investigating agency has been requested to provide the document and the remaining were not admitted on the grounds of relevance and vagueness.
7. To summarize prosecution case is nearing completion in this case and only 14 witnesses have left to be examined. Out of these 14 witnesses, 11 are not traceable. Therefore, It is requested that where about of these 11 witnesses may be obtained from investigating agency and provided to this office. In case, same is not available within reasonable time, the prosecution case would be considered to be closed on the basis of available document and deposition of witnesses on record. The next stage in the inquiry giving final opportunity under CCS Rule 14 (16) to disclose his defense prior to that prosecution 43 OA No.1025/2022 case needs to be completed and finalized. Therefore, information relating to 11 not traceable witnesses may be provided at earliest or any other direction as appropriate may be given to this office.
19. Defending the reasons for delay in inquiry after appointment of IO/PO in the matter of Mr. V.K. Agarwal, the learned counsel for the respondents chronicled the entire sequence of events as follows:
"i) I0/PO were appointed on 28.08.2017.
ii)Copies of RUDs were provided to the Charged Officer on 12.01.2018.
iii) In respect of stay to the disciplinary proceedings, Hon'ble Tribunal on 04.05.2018 (OA No 214/2018) directed the applicant to apprise the Disciplinary Authority and also the Inquiry Officer about passing of the order.
iv) COVID-2019,
v) Legible certified copies of listed Documents and Prosecution Witness received from CBI in February, 2022.
vi) Same were inspected by the Charged Officer on 22.02.2022.
vii) Accordingly, disciplinary proceedings were initiated on 25.02.2022
viii) The Charged Officer has given total 18 representations with a request to not conduct hearing on the grounds that ongoing proceedings are challenged in CAT and Hon'ble CAT is fully seized of the matter. (Dates of representations are 30.12.2022, 13.01.2023, 15.03.2023, 20.03.2023, 23.03.2023, 27.03.2023, 25.04.2023, 15.05.2023, 22.05.2023, 10.10.2023, 19.12.2023, 25.12.2023, 22.01.2024, 31.01.2024, 07.02.2024, 12.02.2024,
20.02.2024 and 08.04.2024.
44 OA No.1025/2022
Further, pending OA No. 214/2018, the Charged Officer had filed Writ Petition No. 2227 of 2022 before Hon'ble Bombay High Court and the same was dismissed on 24.06.2022 as withdrawn with liberty to the petitioner to seek relief before Hon'ble CAT, Mumbai Bench. Liberty was also granted to the petitioner to seek early hearing of his said OA before the Tribunal.
However, the Charged Officer filed fresh OA No.521/2022 which was disposed of on 06.10.2022 with direction to the respondents to decide the representation dated 04.03.2022 of the applicant to keep disciplinary proceedings in abeyance and pass a speaking order as expeditiously as possible and preferably within a period of four weeks from the date of receipt of a copy of the order. It was kept open to the respondents to decide the representation on its own merits and in accordance with law. Further, Hon'ble Tribunal had directed that till the disposal of the said representation, subject disciplinary proceedings against the applicant shall be kept in abeyance.
Pending OA No. 214/2018 was disposed by Hon'ble CAT, Mumbai Bench vide Order dated 01.02.2023, as withdrawn."
20. Distinguishing between retirement under FR 56 (j), the learned counsel for the respondents stated that the premature Retirement under FR 56(j) is an administrative exercise and has nothing to do with the continuation of departmental proceedings against the applicant. FR 56(j), is an administrative exercise, which is undertaken after the 45 OA No.1025/2022 government servant has completed a certain age and years of service to assess his overall performance and utility in the service in view of the public interest. On the other hand, disciplinary proceedings under CCS(CCA) Rules, 1965 is a control mechanism in the hands of Disciplinary Authority to punish a government servant for his misconduct by following a procedure given under the Rules, depending upon nature and gravity of allegations. The disciplinary proceedings instituted against the Applicant under Rule 14 of CCS(CCA), Rules post his retirement are deemed to be continued under erstwhile Rule 9 of CCS (Pension) Rules, 1972, now Rule 8 of CCS (Pension) Rules, 2021.
21. Citing the judgment of the Hon'ble Supreme Court in the case of Union of India and Anr. Vs. Kunisetty Satyanarayan, AIR 2007 SC 906, learned counsel for the respondents stated that it is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show- cause notice or charge-sheet is that at that stage the writ 46 OA No.1025/2022 petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. It is the settled position of law that chargesheet cannot be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge sheet can be quashed at an initial stage as it would be a premature stage 47 OA No.1025/2022 to deal with the issues. In this regard, attention is invited to the following relevant paragraphs of the judgment passed by the Hon'ble Supreme Court, in the case of The Secretary, Ministry of Defence and Ors. Vs. Prabhash Chandra Mirdha, (2012) 11 SCC 565 :
"......9. Law does not permit quashing of charge- sheet in a routine manner. In case the delinquent employee has any grievance in respect of the chargesheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon..............
.........11. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction / competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide; State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and Ors. (1996)1 SCC 327; Ulagappa and Ors. v. Div.
Commr., Mysore and Ors. AIR 2000 SC 3603 (2); Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. AIR 2004 SC 1467; and Union of India and Anr. v. Kunisetty Satyanarayana, AIR 48 OA No.1025/2022 2007 SC 906.
xxx xxx xxx
13. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues..."
22. The learned counsel for the respondents, in its reply, cited the judgment of the Hon'ble Supreme Court in the case of Chairman, LIC of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530 (Annexure R-11) which held as under:
"...10. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge- sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/Tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of 49 OA No.1025/2022 disciplinary proceedings, as such a power is dehors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show-cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court.
The learned counsel for the respondents has clearly established that there has been no violation of the principles of natural justice in the conduct of the departmental proceedings. The question of making available certain defence documents is firmly and squarely addressed by the following extracts of Government of India M.H.A., OM No.F.30/5/61-AVD dated 25th August, 1961. The relevant portion of Rule 29 of CCS (CCA) Rules reads as under:
"29. Supply of copies of documents and affording access to official records to the delinquent official.
(1) xxx xxx xxx (2) The right to access to official records is not unlimited and it is open to the Government to deny such access if in its opinion such records are not relevant to the case, or not desirable in the public interest to allow such access. ...................
The question of relevancy should be looked at from the point of view of the defence............
The power to deny access on the ground of 50 OA No.1025/2022 public interest should be exercised only when there are reasonable and sufficient grounds........
Where it is decided to refuse access, reasons for refusal should be cogent and substantial and should invariably be recorded in writing.
xxx xxx xxx
6. While there is no doubt that the Government servant should be given access to various official records like documents to which reference has been made in the statement of allegations and documents and records which the Government servant concerned considers are relevant for the purpose of his defence........
7. ......the Government servant is called upon to discredit only those witnesses whose statements are proposed to be relied upon in proof of the charges of of the facts stated in the statement of allegations. As such, the Government servant concerned need not be given access to the statements of all witnesses examined in the preliminary enquiry ......................access should be given to the statements of only those witnesses who are proposed to be examined in proof of the charges of facts stated in the statement of allegations".
23. We have carefully heard the learned Counsel for the applicant and also the learned counsel for the respondents. Both the learned counsels have cited the judgments of the Hon'ble Supreme Court & High Courts and also certain OMs issued from time to time by the Government of India, primarily DoPT and also the rules as per the CCS (CCA) 51 OA No.1025/2022 Rules. Taking into account the detailed averments of the learned counsels for the applicant and respondents, we have given considerable thoughts and critically examined the following issues.
I. Whether the due process of law and procedures has been followed in ordering of the Departmental enquiry and its conduct so far. Also whether, departmental enquiry should be continued as the charges in the Memorandum of Charge and in criminal trial are the same.
II. Whether the Departmental enquiry involves complicated questions of law and facts.
III. Whether the applicant has received and inspected the Relied Upon Documents (RUDs).
IV. Whether continuation of the departmental enquiry will compromise the defence of the applicant during the conduct of the criminal trial.
24. It is pertinent to mention here that disciplinary proceedings were instituted against Shri V.K. Agarwal on 8th September 2010, by the Ministry of Finance Government of India. On 28th February 2017, the enquiring authority was 52 OA No.1025/2022 appointed by the Ministry of Finance. The applicant submitted a representation on 4th March 2022 followed by a reminder on 28th April 2022 to the disciplinary authority, i.e. The President of India for keeping the departmental proceedings in abeyance, pending finalization of the criminal trial.
25. Furthermore, DoPT vide OM No. 110.12/6/2007- Est.III (A-III) dated 21st July, 2016 has clarified that it has been reaffirmed in a catena of cases that there is no bar in law for initiation of simultaneous criminal and departmental proceedings on the same set of allegations. In State of Rajasthan Vs. B.K. Meena (supra), the Hon'ble Supreme Court has emphasized the need for initiating departmental proceedings in such cases in these words: It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is inquired into promptly.
26. In the instant case, due procedure as per the relevant rules has been followed and only after the due approval of the Disciplinary Authority, the Charge 53 OA No.1025/2022 Memorandum No. 27/2010 dated 08th September, 2010 was issued to the Applicant as is clearly brought on record in paras 16 to 16.5 (supra). The series of judgments which have been cited upon by the learned counsel for the respondents have clearly established that departmental enquiry can be kept in abeyance if there is complicated question of law and facts. In our considered view, there are no complicated questions of law and facts involved. The issue involved in criminal case and the departmental inquiry is whether the applicant has acquired assets from his known source of income. The applicant has only to show that the assets he had acquired were from legal sources of income and the same was intimated to the department. These are purely factual matters and do not involve any complicated questions of law and fact. It is purely based on documentary evidence. It is true that the charge-sheet in criminal trial shows that the income of the applicant and his wife has been clubbed. But the Inquiry Officer has made it clear in the letter dated 07 th May, 2024 (supra) that the inquiry is restricted to the applicant only. This letter further shows that he is proceeding on that line only. 54 OA No.1025/2022 Thus, the inquiry is restricted to the applicant only. Entire evidence is documentary in nature. And, therefore, the inquiry need not be stayed.
27. Charges against the applicant are that he acquired immovable property comprising of Flat No.701 and movable property in the shape of Saving Bank Accounts, Fixed Deposits, Shares etc. Another charge is that Flat No.701 at Versova was gifted to him by his uncle Shri D.D. Gupta. Another charge is that shares of M/s. Centurion Bank were gifted to him by Shri D.D. Gupta. Next charge is that the applicant had taken loan from Kishor Mehta, but did not intimate the department about this transaction and did not declare it in his Income Tax Return.
28. These charges do not involve any complicated question of law and fact. The applicant has simply to show that he has acquired these properties from his known sources of income. Therefore, the condition laid down in the case of Capt. M. Paul Anthony (supra) viz criminal trial involves complicated questions of law and fact, does not get fulfilled. So far as similarity of charges in criminal trial and 55 OA No.1025/2022 departmental inquiry is concerned, the respondents have produced the order of this Tribunal in OA No.214/2018 filed by the applicant. Para 4 of this order reads this:
"4. Learned Advocate for the applicant submitted that the disciplinary proceedings is initiated for the same set of charge. However, today he has produced comparative statement showing the nature of charges levelled in the disciplinary and in the criminal proceedings. It is obvious that except charge I, other charges are different."
This clearly shows that charge in criminal and departmental proceeding are different. So far as Relied Upon Documents are concerned, it is the grievance of the applicant that he has not been provided with the RUD. We do not find any substance in this contention. Respondents have alleged in their reply that vide letter dated 05th July, 2022 Presenting officer had received certified copies of listed documents and prosecution witnesses from the Investigating Agency and applicant inspected the same. These allegations have not been denied by the applicant in his rejoinder. This goes to show that the applicant has inspected these RUD. At that time, applicant did not raise any objection that he did not receive RUD. For this reason, we don't find substance in the 56 OA No.1025/2022 submission that the applicant has not received RUD.
29. Learned counsel further submitted that in Annexure MP A1, the Inquiry Officer has observed that the defence document have not been supplied to the applicant and still he is proceeding with the inquiry when document is not received, Inquiry Officer should not proceed with the inquiry. We find no merit in this submission. The document asked for is an admitted document. Thus, when the document is admitted, the question of staying the inquiry does not arise.
30. Further more, it is clearly established that the Tribunal had limited powers when it comes to intervention with the conduct of departmental proceedings. It is also repeatedly asseverated in the judgments of the Supreme Court cited (supra) and DoPT orders cited above that it is in public interest, in the interest of smooth and efficient conduct of administration and also in the interest of charged officer/applicant that the enquiry is completed in the least possible time. It is also clearly brought in a series of judgments that there is absolutely no bar on the simultaneous 57 OA No.1025/2022 conduct of criminal proceedings and departmental enquiry. Further more, the repeated argument/averment of the learned counsel for the applicant, that the simultaneous conduct of the DE , would force the Charged Officer/applicant to reveal his defence; and the same would adversely impact his trial in the CBI court , is specious, unsubstantiated , not based on facts and is hence rejected, as already done earlier by the Hon'ble Supreme Court and this Tribunal, in the judgments, cited (supra) .
31. In the light of above, the following orders are issued:
I. The request in the OA to keep the departmental enquiry in abeyance is rejected.
II. Original Application is dismissed. Pending MAs, if any, stand closed. No order as to costs.
(Santosh Mehra) (Justice M.G. Sewlikar)
Member (A) Member (J)
dm.
Digitally signed by Deepti Ganesh Munarshi
Deepti
DN: C=IN, O=Personal, OID.2.5.4.65=
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