Central Administrative Tribunal - Delhi
Also At vs Union Of India on 5 August, 2014
Central Administrative Tribunal
Principal Bench
OA No. 4113/2012
Order Reserved on: 07.02.2014
Order Pronounced on: 05.08.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Nagendra Kumar Saxena,
S/o Late Sh. Raj Bahadur Saxena,
R/o D-201, Celebrity Homes,
Palam Vihar, Gurgaon, Haryana
Also At:
Room No.1053,
Jawahar Nehru Bhawan,
3, Janpath,
New Delhi-110001 -Applicant
(By Advocates: Sh. Ajayveer Singh Jain with Sh. Atul
Aggarwal, Ms. Divya Garg and Sh. R.K. Verma)
-V E R S U S-
1. Union of India,
Through its Secretary,
Ministry of External Affairs,
South Block, New Delhi-110001
2. Joint Secretary (CNV & CVO),
Ministry of External Affairs,
South Block, New Delhi-110001
3. Director (CNV & CVO),
Ministry of External Affairs,
South Block, New Delhi-110001 -Respondents
(By Advocate: Ms. Priyanka Bhardwaj for Sh. MK
Bhardwaj)
O R D E R
Dr. B.K. Sinha, Member (A):
The Instant Original Application filed under Section 19 read with Section 14 of the Administrative Tribunals Act, 1985, is directed against the order dated 24.05.2012 passed by the appellate authority rejecting the applicants appeal dated 4.1.2012 against the penalty of reduction by one stage in the time scale of pay for a period of three years without cumulative effect, imposed by the disciplinary authority vide Memo dated 26.9.2011, inter alia, on the ground that this constituted a well designed conspiracy engineered by one S.K. Panda, former Commercial Counsellor in the Indian High Commission against whom the applicant had recommended a departmental inquiry for sexual misdemeanor involving a Malaysian lady of Indian origin.
2. The applicant had sought the following reliefs vide means of this OA:-
(i) Quash the order dated 24.05.2012 passed against the applicant (Annexure P/22)
(ii) Restore all consequential benefits including arrears of salary/increments and promotions retrospectively and foreign postings that are due and have been denied to the applicant;
(iii) Award entire cost of the litigation in favour of the applicant;
(iv) Pass such further order(), direction(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice. However, vide order dated 11.9.2013, a learned Single Bench of the Tribunal pointed out from the order dated 24.5.2012 itself, that as per Rule 22(i) of the CCS(CCA) Rules, 1965, no appeal would lie against any order made by the President and on the request made on behalf of the applicant, permitted him to confine his challenge to the order passed by the disciplinary authority alone. Accordingly, the applicant filed an application for revision of Clause (i) of his prayer, which was allowed by the Tribunal vide order dated 2.12.2013. The revised/amended prayer is as under:-
a) Pass order(s)/direction(s) for the correction of prayer clause (i) of the instant OA at page 52 to read as quash the order dated 26.09.2011 passed against the applicant;
b) Pass such further order(s)/direction(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice.
3. The facts of the case, in brief, are that the applicant joined Indian High Commission at Kuala Lumpur (Malaysia) on 6.1.2006 as Deputy High Commissioner for India. On 10.7.2006, one Peter Loo, an employee of Education Section of the Indian High Commission at Malaysia, submitted a note enclosing therewith a list of shortlisted candidates to be interviewed for grant of India Trust Scholarship for academic year 2005-06. This note was countersigned by the applicant and subsequently by the then India High Commissioner one R.L. Narayanan. This note, inter alia, contained the list of name of beneficiaries of Indian Trust Fund, namely, Ms. Prema and Ms. Umanthini, daughters of one Muthus(w)amy at SI. Nos. 23 and 24 respectively as distinguished from one Prema, daughter of Muthusamy listed as SI. No.3. and one P.Umananthini A/P Gnanaprayasam at SI. No. 10. The note further suggested that total number of 176 students had been shortlisted from various Institutions of Higher Learning. This list was not exhaustive, but it served as a guide for selection of applicants based upon the criteria indicated in the note. The same was endorsed to FS(PIE) through the applicant, who marked it down after due approval. Subsequently, a letter was received from one Dato Seri Samy Vellu, President, Malaysian Indian Confress, on 9.3.2007 thanking India High Commission for having provided scholarships to Ms. Prema Muthus(w)amy and Ms. Umanthini from India Trust Fund and that both of them being sisters wanted scholarships to be consolidated together to purchase a laptop computer and that the amount could be paid to the vendor of the laptop. The applicant directed that as per the desire of the Honble Minister, a cheque could be issued in the name of vendor, which was duly acknowledged to the Indian High Commission in respect of RM 3,999.00. Subsequently, Miss Prema Muthus(w)amy intimated him vide her communication dated 17.8.2007 that she and her sister had received full scholarships for their courses on account of which they could not use any other scholarship. Therefore, they returned a sum of RM 4,000 to the Indian Trust Scholarship of the Indian High Commission on 17.8.2007 to be used by some other deserving candidates. After the applicant returned to India on completion of his tenure in May, 2009, an investigation was launched on complaint filed by one SK Panda, the Commercial Counsellor of the Indian High Commission at Kuala Lumpur (Malaysia), who had been entrusted with the charge of Scholarship Trust Fund after the applicant had demitted office. The applicant is at pains to emphasize that the inquiry launched against him was at the instance of S.K. Panda, who was perhaps nurturing a grudge against the applicant that he had recommended departmental proceeding against him for sexual misdemeanor involving a Malaysian lady of Indian origin. However, no action was taken against the applicant while the inquiry was being conducted (para 4.4 of the OA). It appears that an investigation team was sent to Malaysia to investigate the case and based upon its report, a memo of charge was served upon the applicant on 17.2.2011 by respondent No.2 along with Statement of Imputations of Misconduct and List of Documents on which reliance had been placed while drawing up the charges. The applicant was charged with the following acts of misconduct:-
That while being posted as Deputy High Commissioner of India, Kuala Lumpur (Malaysia), the applicant had misappropriated the Indian Trust Fund to the extent of MR 3999.00 for purchasing a laptop for self.
The Statement of Imputation indicates that on 3.8.2005, one Ms. Prema, daughter of Muthusamy, a Malaysian national of Indian Origin, had submitted an application for scholarship from Indian Trust Fund for the academic year 2005-06. Her application was rejected, as her name did not figure in the list of students called for interview for scholarships from Indian Trust Fund and the list of candidates shortlisted for interview was attached to a note dated 10.07.2006 recorded by one Peter Loo, an local employee working in Education Section of High Commission of India, Kuala Lumpur. This note of one Peter Loo has been countersigned by the applicant and then High Commissioner, one R.L. Narayanan. It is the case of the respondents that the applicant inserted the names of two candidates, namely, Ms. Prema and Ms. Umanthini, both being shown as daughters of one Muthus(w)amy in the list of shortlisted candidates with the mala fide intention of purchasing a laptop from the Indian Trust Fund. In the second list, it was shown that an amount of RM 4000 from the India Trust Fund had been earmarked for the afore two persons. The insertion of names of two so-called candidates Ms. Prema and Ms. Umanthini, has been done without the knowledge of the High Commissioner as was evident from the letter dated 22.4.2008.
The applicant thereafter purchased a laptop worth MR 3,999.00 from one M/s Note Book Shop SDN BHD, for self. The invoice No. NB171028 dated 5.3.2007 was prepared in the name of the applicant bearing his mobile No.012-217-2784 and his residence landline No. 03-2444703 while payment of MR 3999.00 towards the cost of laptop was made to the vendor vide Cheque No.748249 dated 5.3.2007 from the Indian Trust Fund signed by the applicant in his capacity as Deputy High Commissioner.
In order to cover up his misdemeanor, the applicant committed the following misconducts:-
(a) Although the cheque No.748249 dated 5.3.2007 for MR 3999.00 was in the name of Note Book Shop Sdn. Bhd, in the counterfoil of the same cheque which was dated 11.9.2006, instead of 5.3.2007, the applicant has indicated Prema and Umanthini D/o Muthus(w)amy, as the names of the beneficiaries. The amount of cheque was falsely shown as MR 4000.00 in the counterfoil, instead the actual amount of MR 3999.00.
(b) The applicant in collusion with EON Bank Berhad, obtained a fudged bank statement of High Commission of India-Indian Scholarship and Trust Fund which showed a false debit entry of MR 4000.00 against cheque No.0748249 (wrongly mentioned as 74849 by the bank) which was actually for an amount of MR 3999.00. An investigation team from the Ministry of External Affairs, which visited to Kuala Lumpur to conduct an investigation, contacted EON Bank Berhad, obtained from the said bank, the genuine bank statement of High Commission of India-Indian Scholarship and Trust Fund which show the correct debit entry of MR 3999.00 against cheque No.0748249.
(c) Upon detection of his fraud, the applicant was refunded the amount of MR 4000.00 into the account of Indian Scholarship Trust Fund vide Pay order No. 836804 dated 13.06.2007 and retained the lap top computer purchased from M/s Note Book Shop SDN BHD with himself. The refund was specifically made through a pay order so that the identity of the person making the refund would remain secret, knowing fully well that the stringent Malaysian Banking Laws of not disclosing the names of their clients to a third party would work to his disadvantage. Further, in order to cover up his misdeed, the applicant produced a fictious letter dated 17.08.2007 stated to have been written to him by one Ms. Prema Muthus(w)amy, stating she and her sister Umanthini Muthus(w)amy had deposited the scholarship money amounting to MR 4000.00 into the account of Indian Scholarship Trust Fund as they had received full scholarship of the courses to be pursued by them rendering them ineligible for such scholarships. This letter does not bear her address in Malaysia or her telephone or mobile number. The signature bearing in the letter was later compared with that of Ms. Prema Muthusamy that appeared on page-3 of her application dated 3.8.2005 for scholarship from Indian Trust Fund by the handwriting/signature experts in Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi and was found not to connect.
(d) The High Commission of India, Kuala Lumpur, established contact with Miss Prema Muthusamy and learnt from her that she had applied for the scholarship, but was under the impression that it had been rejected till Education Officer in the High Commission contacted at her residence on 22.8.2010. She categorically denied having received any money from the Indian High Commission for studies, or laptop in lieu thereof.
4. The applicant submitted his explanation denying the charges against him and alleging that this was result of a conspiracy hatched by one S.K. Panda, who was aggrieved by the applicant having recommended departmental proceeding against him on charges of sexual misdemeanor. The applicant, inter alia, states that the names of Prema and Umanthini (daughter of Muthus(w)amy) were recommended by Dato Seri Samy Vellu, the then Minister of Works, Government of Malaysia for consideration for providing scholarships from Indian Trust Fund. This is borne out by his letter dated 9.3.2007. The names of afore two candidates were included in the list of shortlisted candidates called to be interviewed on the recommendation of the Malaysian Minister. He further submitted that this had been sent by the then High Commissioner as was evident from his signature on the note. A cheque was issued to the applicant in view of the recommendation made by the Minister. The invoice of the laptop had to be made in the name of the applicant as the shopkeeper wanted details of the signatory of the cheque, for any further contact, if required. This was as per the requirement of the laptop vendor. The applicant further submitted that it is highly improbable that an employee of a foreign bank would enter into conspiracy for a gain of merely one MR. The applicant further alleges that the date of the complaint has not been disclosed and this would falsify the statement that the applicant refunded the money on the detection of the fraud. The applicant has further submitted in his explanation that Ms. Prema, whose signature is alleged not to have tallied, was different person. When the investigation team visited Kula Lumpur, her form was found to be untraceable. This is also evident from the fact that in the form of Ms. Prema, it is indicated that the applicant had only one brother; whereas the original Ms. Prema had a sister i.e. Ms. Umanthini. Moreover, there is a difference as Ms. Prema and Ms. Umanthini, daughters of Muthuswamy, spelt the name of father with W in between; whereas in the form, which has been sent, fathers name was spelt without W. This is corroborated by the fact that even the letter of the Malaysian Minister spelt the name with W.
5. The reply of the applicant was duly considered. The disciplinary proceedings had been initiated against him under Rule 16 of CCS(CCA) Rules, 1965. Consultation with the UPSC was duly made and the applicant was awarded penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years without cumulative effect and not adversely affecting his pension vide the impugned order dated 26.9.2011. This order has been signed by one Arun K. Chatterjee, Director (CNV) & Chief Vigilance Officer. An appeal was preferred against the order dated 26.9.2011 vide Memo of Appeal dated 4.1.2012. The same was considered and rejected by Joint Secretary (CNV) & Chief Vigilance Officer (respondent No.2) vide his order dated 24.5.2012.
6. The applicant has adopted the following grounds in support of his OA:-
(i) That the disciplinary authority and appellate authority is the same individual, which is against law and hence illegal and ultra vires.
(ii) That the disciplinary authority has not considered the reply of the applicant.
(iii) That the veracity of certain documents has been challenged, but nowhere in the order, the disciplinary authority has made any efforts to confirm the veracity of these documents challenged.
(iv) That the inquiry from Ms. Prema Muthus(w)amy had been made in the night well after office hours. The application forms of Prema and Umanthini have not been produced anywhere.
That prosecution document No.8, which is the copy of a cheque bearing no.748250 and counter foils of the same cheque book bearing nos. 748248 and 478249 respectively shows that the immediate next cheque is blank i.e. no.748250. However, the counterfoils are both dated 11.09.2006 and counterfoil bearing no.748249 is tempered with. It has been brought to the notice of the Tribunal that in case the cheque was made on 11.09.2006, how could the cheque be actually dated 05.03.2007? It has been further submitted that the immediate next cheque bearing no.748250 is blank and that no cheque has been issued to anyone from India Scholarship Trust Fund account after cheque no.748249 which speaks volumes that this was deliberately done in order to create a fabricated case against the applicant by the disciplinary authority. It is further submitted that only scholarship cheques can be issued from India Scholarship Trust Fund account cheque book. The entry in the counterfoil of the issued cheque no.748249 is for RM 4000.and is dated 1.09.2006 but the cheque, which is dated 05.03.2007 of the same counterfoil, is admittedly, of RM 3999.00. The counterfoil is dated 11.09.2006 and the cheque is dated 05.03.2007 i.e. after almost 6 months and thereafter no cheques have been issued for scholarships as is evident from the immediate next cheque bearing no.478250 which is blank. In fact, all this only points to a well planned conspiracy to victimize the applicant by vested interests in the disciplinary authority for which the disciplinary authority as well as officials in the Indian High Commission at Malaysia who are parties to this conspiracy to falsely implicate and victimize the applicant have all become liable to criminal prosecution. It is submitted that by retaining the immediate next cheque as blank, it is evident that all this was a pre-planned and a conspiracy to victimize the applicant by involving his name deliberately into a false case of forgery and fabrication and to jeopardize his career prospects. It is submitted that the disciplinary authority or the investigation team has not produced any evidence that there have been any subsequent cheques issued for scholarships after the cheque in question. It is further submitted that the disciplinary authority has not applied its mind by not sending the counterfoils of cheque book in question to the CFSL for determination of forgery and has, in fact, by producing documents that suit best to its own case has confirmed that all this was a pre-mediated and pre-planned conspiracy to victimize the applicant or the truth would have prevailed in case the comparison of the letter dated 17.08.2007 (prosecution document no.11) already annexed as Annexure P/5) and the counterfoil was compared.
(vi) That no inquiry officer was appointed to conduct the proceeding.
(vii) That the inquiry was result of a carefully laid out conspiracy. No inquiry had been conducted till the applicant was there at KL till May, 2009. The alleged transactions had taken place in the year 2006-07 and the amount had been refunded by two recipients of scholarships in question namely Prema Muthus(w)amy and Umanthini in 2007 itself. The inquiries were made after the applicant had left KL in May, 2009. The nature of the complaint has never been disclosed.
(viii) That the details of the investigation carried out by the investigation team and the investigation report have also not been disclosed or brought on record.
(ix) As required in the case of Class-A officers, approval of the concerned Minister before initiating a departmental proceeding has not been obtained.
7. The respondents have filed a counter affidavit denying all the facts alleged in the OA. It has been stated that Prema, daughter of Muthusamy, had submitted application, which was rejected as she had not been shortlisted for interview. With mala fide intention of purchasing a laptop from India Trust Fund, the applicant ensured that names of two candidates, namely Ms. Prema and Ms. Umanthini, both shown as daughters of one Muthus(w)amy, were falsely inserted in the list of candidates shortlisted for interview at SI. Nos. 23 and 24 without the knowledge of the then Commissioner. The respondents further submitted that the payment had been made from the India Trust Fund by the applicant and the laptop in question had been retained by the applicant. When the matter came to the knowledge, the applicant tried to cover up by getting a fictious letter written on behalf of one Prema, daughter of Muthusamy where no name or address or telephone number had been given. He also made the refund from his own account and retained the laptop with him. He entered into collusion with a Malaysian Bank employee, and refund was made by the pay order, which is difficult to detect on account of strict banking laws of confidentiality. However, there is a difference between counterfoil and the amount actually remitted. The signature of Prema does not tally with that on the application.
8. Coming to the grounds, the respondents have submitted that the applicant was given a fair chance of defence and his defence was duly considered.
9. The respondents further submitted that the orders passed by the disciplinary and appellate authorities were not passed by the same authority and were very much passed in accordance with law that under Rule 22 of CCS(CCA) Rules, no appeal lies against such orders, but since the applicant submitted an appeal dated 04.01.2012 therefore under Rule 29, the President decided the appeal under the revisionary powers. The contention of the applicant that the orders were passed by same authority are absolutely wrong and denied. It is stated that the orders were communicated to the applicant by the same authority but decided under Rule 29 of CCS(CCA) Rules.
10. The respondents have further submitted that the applicant did not ask for any oral inquiry. The procedure adopted by the Government is in accordance with rule position enunciated under Rule 16 of CCS(CCA) Rules, 1965, and is deemed to be an inquiry under Rule 16. As per Rule 16(1-A) of CCS(CCA) Rules, 1965, notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government under clause (a) of the sub-rule 16(1), to withhold increments of pay and such withholding is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty. The penalty imposed on the applicant does not fall in any of the categories of penalties indicated in Rule 16(1-A) of CCS(CCA) Rules, 1965, and therefore, no inquiry was held.
11. The respondents have also denied that any complaint of sexual harassment was received against one SK Panda, the then Counsellor, in Kuala Lumpur, by the respondent authorities. Hence, no comment can be offered on this issue.
12. The respondents have further submitted that vigilance inquiries are done in confidentiality without informing the person against whom inquiry is being conducted so that evidence in support of his or her misconduct, are not tampered with or destroyed and the officer entrusted with the task of carrying out the preliminary investigation can discharge his duties in a fair and prejudice manner. As per Government of Indias decision below Rule 24 of CCS(CCA) Rules, reports made after a preliminary inquiry are usually confidential and intended only to satisfy the competent authority whether further action in the nature of a regular departmental inquiry or any other action is called for. These reports are not usually made use of or considered in the inquiry. Ordinarily, even a reference to what is contained in these reports is made in the statement of allegations. It is not necessary to give access to the Government servant to these reports.
13. The respondents further stated that disciplinary proceedings against the applicant were initiated with the approval of the then External Affairs Minister, which would be clear from the charge memo dated 7.2.2011 and the subsequent orders dated 26.9.2011 and 24.5.2012.
14. The applicant submitted a rejoinder application rebutting all the charges and reiterating his views earlier enunciated.
15. It has been strongly argued that the prosecution document No.2 is absolute fabrication, as the same does not contain any signature or the address of Indian Trust Fund or of the official of the Indian High Commission at Malaysia. Whereas prosecution document No.3 (page 63 of the paper book) bears the signature which established that this document is genuine (page 202 of the paper book). Further, the applicant has never denied that the laptop had been purchased in his name, but has clarified that this was as per the requirement of the vendor as he wanted the contact details of signatory of the cheques. He has further reiterated that Ms. Prema, daughter of Muthusamy, was never in question and her signature has been incorrectly tallied with the signature of Ms. Prema Muthus(w)amy, who is a genuine person. The applicant further reiterated the fact that it was the Minister who had telephoned and had also sent the letter. The cheques were issued after having received the telephonic request from the Honble Minister. Moreover, the fact remains that the ladies, namely, Ms. Prema and her sister Umanthini, have returned the cheque and thereby no loss has been caused to the state or to the fund.
16. The respondents have filed additional affidavit to counter the rejoinder wherein they have submitted that the charges have been proved against the applicant during the course of the inquiry. Copy of the complaint is not relevant to the case as it did not form part of the documents mentioned in the memo of charges. However, a copy of the same has been enclosed as R-3 in terms of a letter of the then High Commissioner, which is based upon allegations from the said SK Panda, Counselor Economic and Education against the applicant. This letter spells out the charges against the applicant as has already been discussed earlier in this order and further mentions in paragraph 4 of the letter that the said SK Panda suspects that the applicant was instrumental in generating complaints against him. Copy of the complaint is also enclosed, including summary of charges and a detailed note from the said SK Panda (R-3 at Page 252 to 264).
17. We have carefully gone through the pleadings of the rival parties and such documents as have been submitted by them. We have also very patiently listened to the oral submissions made by learned counsel for both parties as have been detailed above while enumerating their respective cases and have confined to the points as have been discussed above and to none others. On the basis of the above documents, it appears that the following issues are germane to a decision in this case:-
What is the scope of judicial review in the instant case and that whether this Tribunal would be justified to assess evidentiary value of the documents submitted in the course of the inquiry?
Whether the inquiry conducted against the applicant suffers from any procedural lacunae, which may tend to vitiate the inquiry?
Whether rules of natural justice have been violated by the respondents?
What relief(s), if any, can be provided to the applicant?
18. Insofar as first of the issues is concerned, it is appropriate that the scope of judicial intervention in departmental proceedings be defined at the very outset. Departmental proceedings, in the instant case, have been conducted under Rule 16 of CCS(CCA) Rules, 1965. The role of judicial intervention in departmental proceedings is indeed limited and circumscribed by pronouncements of Honble Supreme Court and Honble High Courts from time to time. During departmental proceedings, the inquiry officer is face to face with the charged officer and also has the benefit of examination of the documents on which reliance has been placed in the inquiry. He is also a privy to examination of witnesses and their cross-examination as well as proving of the documents adduced as evidence. This benefit is not there either in the appellate court or in tribunal/high courts, which have to rely upon the evidence recorded during the course of departmental proceedings. Therefore, an appropriate view has evolved that this Tribunal or even for that matter the Honble High Courts are not superior appellate authorities, but have only to exercise the writ jurisdiction. They cannot go into reappraisal of evidence on record and are to purely confine themselves to the main issues concerned with the exercise of writ jurisdiction, namely, whether departmental proceedings are vitiated on account of mala fide being there or infringement of any statutory provisions relating to departmental inquiry or proceedings being barred by some gross procedural laches. In case of S.R. Tewari Vs. Union Of India & Anr. Vs. R.K. Singh & Anr, Civil Appeal No.4715-4716/2013 (arising out of SLP(C) No.22263-22264/2012), the Honble Supreme Court has held that where the findings are perverse i.e. they have been arrived at by ignoring and excluding relevant material or taking irrelevant inadmissible material into account, the findings of the inquiry are likely to be set aside. For better illustration, it is apt to quote paras 22 and 24 from the judgment of the Honble Supreme in this very case:-
22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala, (2010) 9 SCC 189). This view has been further supported in GAIL India Vs. Gujarat State Petroleum Corporation, Civil Appeal No.8263 of 2013 (Arising out of SLP (C) No. 21932 of 2013):-
28. In Arun Kumar Agrawal v. Union of India and others (2013) 7 SCC 1, this Court was called upon to consider the scope of judicial review of complex economic decision taken by the State or its instrumentalities. The Government of India, ONGC and Shell entered into a production sharing contract with a private enterprise for exploration and exploitation of crude oil and natural gas in respect of the Rajasthan Block. After due deliberation, the Government of India endorsed the decision taken by ONGC. While refusing to interfere with the decision of the Government, this Court observed:
We notice that ONGC and the Government of India have considered various commercial and technical aspects flowing from the PSC and also its advantages that ONGC would derive if the Cairn and Vedanta deal was approved. This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives. Similar views find echo in the judgments of Honble Supreme Court in Bihar State Government Secondary Teacher Association Vs. Bihar State Education Service Association, 2012(11) SCALE 291 and Union of India Vs. Upendra Singh, (1994)3 SCC 357. In the decision of Upendra Singh (supra), the Honble Supreme Court has emphasized that the Tribunal cannot take over the function of the disciplinary authority. The truth or otherwise of charges is a matter of disciplinary authority to go into and it has no jurisdiction to go into the truth of the charges or the correctness of the findings recorded by the disciplinary authority or the appellate authority, as the case may be. In the case of H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority Kamal Vs. Gopinath and Sons, 1992 Supp.(2) SCC 312, the Honble Supreme Court reaffirmed that the judicial review is not directed against the decision, but is confined to the decision making process, it cannot extend to the examination of the correctness or reasonableness of the decision as a matter of fact. The purpose of judicial review is to ensure that individual would receive fair treatment, but not test the correctness of the decision taken by the competent authority. It is not an appeal from the decision but rather a review of the manner in which the decision is made. The Honble Supreme Court was, at pains, to dispel the impression that the court sits in judgment not only of the correctness of the decision making process, but also of the decision itself. It flows from the above that the Honble Supreme Court has drawn a Laxman Rekha, which this Tribunal cannot venture to cross. In the instant case, we are distinctly of the view that the applicant has relied upon the factual matrix arising from similarity of names and has also dwelt upon a conspiracy theory by one S.K. Panda, former Commercial Counselor in the Indian High Commission. We cannot go into reappraisal of the facts and the evidence adduced before us and into questions of identity and motives. This issue is accordingly answered.
19. Insofar as the second issue is concerned, we find that all the procedures prescribed under Rule 16 of CCS(CCA) Rules have been adhered to. The applicant was served with a charge memo, enclosing the Statement of Imputation of Misconduct, Statement of all relevant facts, list of documents and that of witnesses upon which reliance had been placed while framing the charges. The applicant submitted his representation dated 20.4.2011, which was duly considered by the disciplinary authority in his order. The applicant has submitted more or less the same facts for the consideration of the disciplinary authority. We find that the order of the disciplinary authority is detailed and has covered and rebutted each point of the defence submitted in the representation. The disciplinary authority, it appears from the order, has carefully followed the evidence before him and has arrived at the conclusion:-
III. NOW THEREFORE, after taking into account the representation of Shri Saxena and the facts and circumstances of the case, the Disciplinary Authority came to the conclusion that Shri Saxena misappropriated Indian Scholarship and Trust Funds to the extent of Malaysian Ringitt 3999.00 for purchasing a laptop for self and in a bid to cover up his misconduct, he has indulged himself in inserting names of dummy candidates in the list of candidates shortlisted for interview/selected for the grant of scholarships, obtained fudged bank statements to show fake debit entry against cheque No.748249, tampered with the counterfoil of the cheque No.748249 to show fake beneficiaries, wrong cheque amount and incorrect cheque issue date, produced fake letter of alleged refund bearing forged signatures in order to cover up his involvement in returning of the scholarship money, upon detection of his misdeamnor. Shri Saxena used letters from the office of the then Malaysian Minister of Works as a tool to cover up this fraud the case records were sent to the UPSC for its advice. UPSC vide its letter No.F.3/62/2011-SI dated 09.08.2011(copy enclosed) advised that ends of justice would be met, if penalty of reduction to a lower stage in the time scale of pay, by one stage, for a period of three years without cumulative effect and not adversely affecting his pension is imposed on Shri N.K. Saxena, Joint Secretary. The Disciplinary Authority after careful consideration of the advice tendered by the UPSC, has decided to accept the same.
20. The applicant filed appeal dated 4.1.2012 which has again been considered by the appellate authority. The appellate authority has dealt with the points raised in the representation one by one. The first point, he has considered, is that no inquiry was held. The appellate authority stated that in his representation dated 20.4.2011 against the charge memo, the applicant had not given any indication that he wished to participate in a departmental inquiry. Inquiry under Rule 16 of CCS(CCA) Rules, has held that where minor penalty is proposed to be imposed, even then Rule 16(1) leaves it to the discretion of the disciplinary authority to decide whether inquiry should be held or not. This Rule provides that the disciplinary authority will apply his mind to the facts raised in the representation of the charged officer or form an opinion whether inquiry is necessary or not. He has also to provide the documents as requested by the charged officer and should not reject the request for inspection of documents merely on the ground that the inquiry is not being held. Where the disciplinary authority arrives at a conclusion that the departmental inquiry is not necessary, it should be so stated with reasons in writing. The appellate authority has clearly indicated that the applicant had never in his representation asked for holding an inquiry. The impugned order of the disciplinary authority dated 24.5.2012 further states that as per Rule 16(1-A) of CCS(CCA)Rules, 1965, if in a case it is proposed, after considering the representation if any, made by the Government servant under clause (a) of sub-rule (1), to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14. The appellate authority is of the opinion that the penalty imposed against the applicant does not fall within this category, and therefore, no inquiry was necessary. The order of the appellate authority further provides that the exact date of complaint had not been intimated to the applicant and if the money had been paid into ITF account before the complaint had been made, it would negate the suggestion that money had been paid to cover up this misdemeanor. The appellate authority has examined the evidence and has arrived at the conclusion:-
On the basis of preponderance of probability, which is the standard of proof in departmental proceedings, it was concluded that Shri Saxena was involved in the forgery of signatures because invoice No. NB171028 dated 05.03.2007 of M/s Notebook Shop shows Shri Saxena as the recipient of the laptop computer and its accessories. The refund was made by Shri Saxena through a pay-order so that the name of the person who made the refund remained a secret. The complaint which was made against Shri Saxena is dated 02.01.2008 but the complaint states that the letter of refund dated 17.08.2007 appears to be another forged document attempting to confuse the situation by returning the funds misappropriated by the person concerned when the fraud against the government has been detected. The appellate authority has also examined the contention of the applicant that the application forms of Ms. Prema and Ms. Umanthini, daughters of Muthus(w)amy were not provided to him. In this regard, the appellate authority has stated:-
Response:In the counter foil of cheque No.78249 dated 11.09.2006 (fake date, real date 05.03.2007), it was Shri Saxena who had indicated the names of the recipients of the scholarship money as Prema & Umanthini D/o Muthusamy. The letter dated 17.08.2007 (proved fake by CFSL report) produced by Shri Saxena about refund of scholarship money shows the name of the signatory as Prema Muthusamy. In view of this, a copy of the application of Ms. Prema d/o Muthusamy (SI No.3 of the list of candidates shortlisted for interview) was provided to him. The applications of Prema D/o Muthuswamy and Umanthini D/o Muthuswamy (SI No.23 and 24 of the list of candidates shortlisted for interview) do not exist as they are fake entities. During the departmental proceedings, Shri Saxena also did not provide the application forms/photographs of candidates whose names appeared at SI No.23 and 24 of the list i.e. Prema and Umanthini, D/o Muthuswamy, in order to prove the physical existence of these two candidates. The appellate authority has also denied, on the basis of the findings gleaned from departmental proceedings, the existence of letter jointly signed by Ms. Prema and Ms. Umanthini. The appellate authority has also arrived at a conclusion that the so-called letter dated 9.3.2007 of Dato Seri Samy Vellu, the then Minister of Works, Government of Malaysia was produced after the completion of payment and receipt of the laptop by the applicant while the amount has been defrayed from the scholarship account to the extent of MR 3999.00. Similarly, the appellate authority has dealt with the charges regarding the funds allocated to the applicant of MR 25000 being altered to MR 29000. The appellate authority has relied upon a letter of the then India High Commissioner one R.L. Narayanan dated 22.4.2008 that he had not approved grant of scholarship to Ms. Prema and Ms. Umanthini, daughters of Muthus(w)amy. The appellate authority also noticed the discrepancy between the signatures on the letter of refund and that of letter dated 17.8.2007 on the basis of CFSL reports that the questioned signature had been made slowly showing the sign of imitation.
21. From the above facts, it clearly emerges that procedures provided in departmental proceedings have been followed and that no procedural irregularities are there.
22. We propose to dispose of the third issue in brief in view of the findings in respect of issue nos. 1 and 2 broadly stating the rules of natural justice are being subject to various interpretations from time to time. In the case of Union of India Vs. T.R. Verma, 1958 SCR 499, the Honble Supreme Court has held that a party should have an opportunity of adducing all relevant evidence on which he has placed reliance, evidence of the opponent should be taken in his presence and that he should be given an opportunity to cross-examine the witnesses by the party. However, we have seen that since the punishment given is a minor and that inquiry was neither asked for nor given for reasons recorded in writing by the appellate authority, question of violation of principles of natural justice would not arise. This point has further been elucidated in Canara Bank & Ors. Vs. Debasis & Ors., (2003) 4 SCC 557 in the following paras:-
19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
20. Natural justice has been variously defined by different judges. A few instances will suffice. In Drew v. Drew and Lebura, 1855(2) Macg. 1.8 Lord Cranworth defined it as 'universal justice' In James Dunber Smith v. Her Majesty the Queen, 1877-78(3) App.Case 614, 623 JC Sir Robert P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works, (1884-85(10) App.Case 229, 240) Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In Vionet v. Barrett, 1885(55) LJRD 39, 41 Lord Esher, MR defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health, 1890(24)QBD712 Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's case (supra) chose to define natural justice as 'fundamental justice'. In Ridge v. Baldwin, 1963(1 )WB 569, 578 Harman LJ, in the court of appeal countered natural justice with 'fair- play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India, 1978 (2) SCR 621. In re R.N. (An Infaot), 1967(2) B617,530 Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'. In Fairmount Investments Ltd. v. Secretary to State for Environment, 1976 WLR 1255 Lord Russell of Willowan somewhat picturesquely described natural justice as 'a fair crack of the whip' while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball, 1977(1)WLR766 preferred the homely phrase 'common fairness'.
23. We find that the respondents, while adhering scrupulously to the prescribed procedures, have not violated the rules of natural justice at any stage. We also find that the grounds raised by the applicant stand covered either by the appellate authority or by the disciplinary authority. In view of the decisions in issue nos. 1 and 2, we do not find any violation of rules of natural justice.
24. Coming to the last of the issues, it would be apt to decide the same in view of larger backdrop of foreign relations. Admittedly, the applicant was serving as the Deputy High Commissioner at Kaula Lumpur and by all accounts, was very senior office in the High Commission of India. In this capacity, he was representative of the Government of India to the State of Malaysia. This is, by all means, a very onerous position where he comes into contact not only with compatriot Indians, but also the local Indian Malaysian Community, the people of Malaysia at large and the Government of Malaysia in particular and the other international diplomatic community stationed there. Hence, one of the requirements of the job, to our mind, is that his conduct should be not only correct, but should always appear to be correct. The opinion of the UPSC to whom a reference has been made is categorical as under:-
3.4 The Commission observe that the CO enlisted the support of staff members of the office of Dato Samy Velu, a former Minister to cover up his fraud. That COs explanation that the cheque was issued to the vendor on the specific request of Velu seemed to be misplaced and only indicated that the office of Dato Velu and the Ministers office had been used as a tool by the CO to cover up his fraud of obtaining computer for self out of IST fund.
3.5 The documentary evidence on record proved that Shri N.K. Saxena, Joint Secretary (Welfare/A&RM), had purchased a laptop by misappropriating Indian Trust Fund and when the fraud was detected the money was refunded. In order to cover up the misdemeanor, names of dummy/fake candidates were inserted in the list of candidates short listed for interview for grant of scholarship, counterfoil of the cheque was tampered, fudged bank statement obtained to show fake debit entries, fake letter bearing forged signatures was produced to cover up the fraud.
25. We have also further considered the letter of Ambassador Ashok K.Kantha dated 07.03.2008 wherein he refers to the complaint received from the said Sanjay Panda, Councilor Economic and Education alleging fraud and misappropriation on the part of the applicant. The applicant has also much relied upon the fact that no inquiry report was there. However, we find that the matter has been inquired into and the respondents have meticulously referred to issues relating to signature and handwriting to CFSL, not leaving anything to chance. In any case as stated in the very beginning, it is not for this court to go into reappraisal of evidence. We are dismayed by the fact that having such onerous responsibility of showcasing the country before the world, such charges of fraud, deceit and misappropriation have been leveled against the applicant and found substantiated. Though, we are not on the quantum of punishment, which has not been pleaded, we find that the respondents have been rather generous to the applicant, who has been charged with fraud and misrepresentation and held accountable in awarding what may be considered very light punishment.
26. Hence, we see no reason to interfere with the order. The OA is accordingly dismissed without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/