Central Administrative Tribunal - Madras
Dr I Vijayakumar vs M/O Finance on 2 November, 2021
OA448/2020 I
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAIBENCH
V
• Dated the 2
OA/31 0/0C448/2020
day of Qetober Two Thousand Twenty One2 12,24)
No/enl,eh "2/
CORAM : HON'BLE MS. MANJULA DAS, Chairman
HON'BLE MR. T. JACOB, Member (A)
(Through Video Conferencing)
Dr. I. Vijayakumar, IRS, (Retd),
S/o. Mr. S. Iyadurai, Hindu, aged about 64 years,
Door No. 77//5, Gulmohar Avenue, Velachery Main Road,
Opposite to Forest Office, Guindy,
Chennai 600032. . ... Applicant
By Advocate Mis. R. Ramachandran
Vs
1.The Chairman,
Central Board of Direct Taxes,
Department of Revenue,
Ministry of Finance, I
Government oflndia, New Delhi.
IH
2.The Secretary to the Government oflndia,
Ministry of Finance,
Department of Revenue,
New Delhi 110001.
3.The Secretary to the Government oflndia,
Department of Fertilizers,
Ministry of Chemical and Fertilizers,
Shastri Bhawan, New Delhi 110001.
4.The Principal Director General of Income Tax (Vigilance),
Dyal Singh Public Library Building,
No. 1, Deen Dyal Upadhyay Marg,
New Delhi.
5.The Joint Secretary and Chief Vigilance Officer,
Department of Fertilizers,
Ministry of Chemicals and Fertilizers,
Shastri Bhawan, New Delhi 110001. . ...Respondents
By Advocate Mr. V. Vijay Shankar (Rl, 2 & 4)
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ORDER
2 • OA448/2020 (Pronounced by Hon'ble Shri. T. Jacob, Member(A)) The reliefs prayed for in this OA is as follows:
". To call for the records in respect of the impugned Charge Memo/F.No. C- 1401130/2017-V&L, dated 03.11.2017 issued by the office of 1" respondent, the Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India, New Delhi, leveling 6 charges against the applicant and further disciplinary proceedings including the appointment of Inquiring Authority and quash the same, ii. to direct the I" respondent to drop all the charges in pursuant to the charge memo issued,
11. pass such further order or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and proper in the circumstances of the case and thus render justice." O
2. The facts of the case submitted by the applicant are as follows:-
. ' The applicant joined as IR.S official during 1984 in Income tax department and continued his service upto 10.05.2012. From 11.05.2012, he was deputed to Madras Fertilizers Limited as Chairman cum Managing Director and \' continued in the post upto 31.10.2015 i.e. until his retirement. On 17.11.2017, a I charge memo dated 03.11.2017 was made available to the applicant, issued by the l respondent. The date of events has been related to more than 4 years after the alleged happening of such events and it is against the pension rules. The borrowing authority should alone issue such charge memo for the alleged happening of any events and here the lending authority has issued it. Further, no show cause notice was issued on the investigation report of the Chief Vigilance Officer's report before obtaining CVC's first stage of advice as mandated CVC's manual. The respondents have also not obtainied the approval of the Minister for Fertilizers and time limit has not been followed in the matter. In such 3 OA448/2020 circumstance, in this O.A., the applicant challenges the charge sheet and further • disciplinary proceedings.
3. The applicant has sought the above mentioned relief, initer alia, on the following grounds:-
1. The borrowing authority has not instituted fresh disciplinary proceedings for the alleged lapses happened while the applicant was in service with the st borrowing authority instead the institution was done by the lending authority, l respondent who is not conversant with the rules, regulations, bye laws.
11. In view of the reason that the borrowing authority alone is competent to initiate fresh disciplinary proceedings after the retirement of the applicant for the alleged lapses happened while he was in service with the active control of the Department of Fertilizers; the sanction ought to have been given by the Minister of Fertilizers alone. As the sanction was accorded by the Minister for Finance, it would vitiate the charge memo issued by the I st respondent and further disciplinary proceedings including the inquiry initiated through the 2 appointment of Inquiring Authority.
iii. The period of 4 years has been completely elapsed from the date of events in the charge memo served which is the statutory limitation specified by the Rule 9 (b )(ii) of the Pension Rules as for as the post retirement fresh disciplinary proceedings are concerned.
iv. While making reference for first stage of advice, the condition precedent is the version of the suspect officer on the 0 4 0A 448/2020 • O· obtained which invariably be furnished to the Central Vigilance Commissioner (CVC). This has been completely missing which goes against the chance of the applicant to speak against the allegations even before proceeding with disciplinary proceedings.
v. After getting the first stage of advice from the Central Vigilance Commission (CVC) of course be confidential, the recommendation of the Central Vigilance Commission (CVC) on the report of the inquiry has to be supplied to the charged employee to show cause as to why disciplinary action should not be taken against him. This has not happened in this case and the right 0 to be heard has been affected.
vi. The time limit in regard to submission of investigation report to the CVC, taking the matter to disciplinary authority, issuance of charge memo and finalization of disciplinary proceedings, have not been followed in toto to the contravention to the office memorandums issued by the Department of Personnel and Training.
vii. Above all, the applicant as the Chairman cum Managing Director of the Mis. Madras Fertilizers Limited, did take decisions from the advice from so many committees constituted as enunciated in the by laws of the said Public Sector Undertaking which also had been given by post approval by the Board of Directors at the relevant point of time and the Chief Vigilance Officer (CVO) had occasion to nod his head over the said decisions taken by the applicant.
gt..g.yg 5 OA448/2020
4. The respondents have filed detailed reply. The OA has been filed • challenging the charge memo dated 03.11.2017 issued by the 1 respondent. There is no real cause of grievance to the applicant at this stage because the disciplinary proceedings under challenge have not been finalized, nor any penalty has been imposed on the applicant. At this stage, the Disciplinary Authority (DA) has formed only tentative view. The entire procedure is devised to ensure full and fair opportunity to the applicant at various stages of the proceedings. The procedure also involves consultation with independent advisory bodies such as the CVC and the UPSC, so as to ensure a fair, objective and dispassionate assessment of the facts and the circumstances of the case. The applicant is, therefore, not justified at this stage of the disciplinary proceedings in seeking the intervention of the CAT without waiting for the outcome of the inquiry proceedings.
5. It is submitted that the charge memorandum dated 03.11.2017 is time barred and intended to victimize the applicant is denied. In the said charge memorandum, Articles 1 & 2 are related to plant upkeep and bagging and shipping contract where on 11.10.2013, the Charged Officer viz., the applicant herein finally awarded the contract to lone bidder, going against CVC guidelines. As per Articles 3 & 4 are concerned, these are related to MFL's Staff Canteen/Labour Canteen contract for providing canteen services to staff and contract labourers. In this case, the applicant, charged officer had approved the extension of contract on 13.11.2013 which is under the purview of the four 6 0A 448/2020 0- years period. Similarly, Articles 5 & 6 are related to day to day Shutdown & • Labour contract (Annual Tender), wherein Charged Officer had changed the pre qualification criteria to suit a particular contractor and to exclude the other and later awarded the contract to Mis. V D Swamy & Co., the lone bidder. In this case CO finally approved the tender on 15.11.2013. Therefore, it will be seen that charges related to Articles 1 to 6 of the charge sheet, are events which took place within the period of four years.
6. As per Rule 92)b)ii) of the CCS (Pension) Rules, 1972, the departmental proceedings, if not instituted while the Government servant was in 0 service, whether before his retirement, shall not be in respect of any event which took place more than four years before such institution. In case of the CO the articles of the charge memorandum dated 03.11.2017 are all related to the events which took place within the period of four years. Therefore, the averment of the applicant that the proceedings are time barred is vehemently denied . . . 7. The reliance placed by the applicant on Section 20 of CCS (CCA) Rules, 1965 is misplaced. The case of the applicant is covered by CCS(CCA) Rules, 1965 read with CCS (Pension) Rules, 1972. In terms of Rule 9(2)(b )(i) of the t.' CCS (Pension) Rules, 1972, the departmental proceedings, if not instituted while the Government Servant was in service, whether before his retirement, shall not be insituted without the sanction of the President. It is relevant to note that due sanction of the Hon'ble President was obtained under Rule 9 of CCS (Pension) Rules, 1972. Therefore, the departmental proceedings in case o 7 OA448/2020 applicant have been initiated after following the due procedure as per Rules. • 8. The Central Vigilance Commission (CVC) tendered its first stage advice vide its OM No. 014/C&F/021-354081 dated 11.08.2017 in this case wherein the CVC had recommended for initiation of major penalty proceedings against the CO. The advice of the CVC was conveyed by the Department of Fertilizers, Ministry of Chemicals and Fertilizers to this department on 27.09.2017 with the reques: to take further necessary action in this case. Subsequently, the disciplinary proceedings for major penalty against the applicant were initiated under Rule 14 and 15 of CCS (CCA) Rules, 1965 read with CCS (Pension) Rules, 1972 after obtaining due approval of Hon'ble Finance Minister on 24.10.2017.
9. Moreover, CVC vide OM No. 017/C&F/009/375935 dated 27.03.2018 (with respect to another Charge Memorandum dated 14.08.2019 issued against the CO) has observed that since the CO was not absorbed in the PSU, he is governed by CCS (CCA) Rules and Pension Rules. The CVC has categorically stated in the said OM dated 27.03.2018 that the Finance Minister is the competent authority to initiate the proceedings. Thus, the said charge memorandum has been issued to the applicant only on the advice of the CVC and after following due procedure as per law, therefore, the avennent of applicant is baseless and deserves to be rejected.
10. The respondents have also relied on the following judgments in support ..gg,gg"-.tag of their contentions:-
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i) In the case of Union of India & others Vs. Swathi Patil in Civil Appeal No. 3881 of 2007 (arising out of SLP(C) No. 17417 of 2006) •
ii) Reliance is also placed in the Mumbai High Court judgment in the case UOI Vs. Benoy Gupta wherein it was held that the Tribunal was not justified in quashing the Memorandum of Charge issued to the applicant without waiting for the outcome of the findings of the disciplinary authority in the disciplinary proceedings initiated against the officer.
11. Heard Ld. Counsel on both sides and perused the pleadings and documents on record.
0
12. The learned counsel for the applicant would submit that the issuance of charge memo beyond statutory limitation after retirement and other arbitrariness in instituting the fresh disciplinary proceedings shows the vindictive attitude of the 1st respondent towards the applicant for the reasons not known to him. Further, the I respondent's office has informed the applicant about the appointment of enquiring authority to enquire into the charges framed against him and the inquiry intended to be conducted would have adverse consequences and mental agony. He prayed for quashing of the charge memo.
13. Learned counsel for the respondents would submit that there is no illegality or irregularity in the initiation of the departmental proceedings against the applicant and it is for the applicant to appear before the inquiry officer. and demonstrate his innocence by utilizing the opportunity that would be accorded A tohim.The erefore,p th is, re-mature andO :. ' 9 OA 448/2020
14. The question relating to quashing of charge memo has been repeatedly • dealt with by the Supreme Court in several cases.
i) In (1987) 2 SCC 179 (STATE OF UTTAR PRADESH • BRAHM DATT SHARMA AND ANOTHER), while dealing with the question of quashing of charge memo at show-cause notice, the Supreme Court had observed :-
"9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably Without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice."
(ii).Generally, judicial interference in quashing charge sheet is not encouraged save in very exceptional cases, vide Upendra Singh vs. Union of India, (1994) 3 SCC 357 wherein the Apex Court has held as under:-
"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 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."
) iii). Similarly in (1996) 3 SCC 157 (SECRETARY TO GOVERMENT, PROHIBITION AND EXCISE DEPARTMENT v.L. SRINIVASAN), the Supreme Court observed:-
"3. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false record> u • IO 0A 448/2020 which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied."
iv) In a decision reported in 2007 AIR SCW 1639 (GOVERNMENT OF ANDHRA PRADESH AND OTHERS v. APPALA SWAMY), the Supreme Court observed as follows "10. Sp far as the question of delay in concluding the departmental proceedings as against a delinquent offi cer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be direct ed to be quashed on the ground of delay are:
\ (1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay cause prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Offi cer."
» v) The Supreme Court had observed inter alia in the case reported in AIR 1998 SC 1833 (STATE OF ANDHRA PRADESH v. N. RADHAKISHAN) as under:-
"19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to. determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity
11 0A 448/2020 and on what account the delay has occurred. If the delay is unexplained • prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its emplcyee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged offi cer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations." vi. The Hon'ble Supreme Court of India in the case of Union of India & others Vs. Swathi Patil in Civil Appeal No. 3881 of2007 (arising out of SLP(C) No. 17417 6f2006) has held as under:-
"We are unable to countenance with the above extracted reasoning recorded by the High Court whether there exists sufficient and cogent material to sustain the articles of charge or not, should not be decided by the court at the stage of framing of the charges. The articles of charge can be established by the evidence only during the course of inquiry without being inquired into by an inquiry office and without recording any finding whether the article of charge has been sustained or not either by oral enquiry or documentary evidence, it was not open for the High Court to come to the conclusion at the stage o[ framing of charges that no material is forthcoming to establish the charges."
15. The applicant, by means of the present OA, has sought the relief of quashing the charge memo. The law relating to quashing of charge memo has also been well settled through several judgments of various courts. The Principal Bench of Central Administrative Tribunal recently in 0.A. No. 201/2019 (Anuradh Mookerjee Vs. Union of India and Others) decided on 16.10.2019 held in para 9 of the judgment, laid down the criteria for the same as under:-
"The general principle is that whenever an employee or officer assails a charge memo, the cow-ts or the Tribunal would be reluctant to interefere with the same, unless the factors such as listed as under
exist:-
) The Charge Memo having been issued by anofhigIJ 0 · 12 OA448/2020 competent to do so;
ii) The subject matter of the disciplinary proceedings is a • fairly old and state matter raked up at a stage when the officer or employee was due for promotion;
iii) where even if the contents of the charges are taken as true, they do not constitute an act of misconduct; exist."
16. A number of grounds have been raised by the applicant vide para V of the OA and these are discussed as under:-
i. As regards the first ground that the borrowing authority has not instituted fresh disciplinary proceedings for the alleged lapses happened while the applicant was in service with the borrowing authority instead the institution was done by the lending authority, the CVC has clearly clarified that in view of non absorption of the applicant in the borrowing department, it is the CCS(CCA) Rules that apply to the case of the applicant. Further, the Principal Bench of the Tribunal in paragraph 24 of the order dated 02-07-2019 in OA No. 2772/2017 (Dinesh Singh vs Union of India and others) had held as under:-
24. From the rule, it becomes clear that it is competent for the lending as well as borrowing departments to initiate proceedings against an employee, who worked on deputation.
Depending on whether the employee is still on deputation or has since been repatriated, certain steps are required to be taken. However, the competence of either of the· departments to initiate the proceedings is neither doubted nor restricted. The applicant r A is not able to demonstrate that the proceedings initiated against • him are, in any way, violative ofRule 20 ofthe Rules.
11. As regards the second ground, in view of the above decision, with which we respectfully concur in, there is no need to seek the approval of the Minister of the borrowing department.
111. As regards the third ground, the respondents have clearly demonstrated 13 0A 448/2020 that the alleged incidents occurred within the period of 4 years which is the • statutory limitation specified by the Rule 9 (b)(ii) of the Pension Rules as far as the post retirement fresh disciplinary proceedings are concerned. iv. With reference to the fourth ground that the version of the applicant has not been made known to the CVC while rendering the first stage advice, the rule is that whenever cases are investigated either by Vigilance or by CBI such investigation reports are sent to the CVC (Senior Scale and above) along with the tentative action to be taken by the Disciplinary Authorities. Depending upon the circumstances and facts of each case, CVC advises (a) initiation of criminal and/or Departmental proceedings against the concerned public servants; or (b) issuance of Administrative warning to him/her; or (c) closure of the case. CVC's advice at this stage is termed as First Stage Advice. The tentative action of the Disciplinary Authority after taking into account the version of the applicant cannot be questioned as the applicant has a chance to vindicate his stand at the time of trial.
v. The fifth ground set out in the OA is that after getting the first stage of advice from the Central Vigilance Commission (CVC) of course be confidential, the recommendation of the Central Vigilance Commission (CVC) on the report of the inquiry has to be supplied to thecharged employee to show cause as to why disciplinary action should not be taken against him. This has not happened in this case and the right to be heard has been affected. In this regard, the CVC Memorandum dated 28th September, 2000 reads as under:-
3. The Commission, at present, is being consulted a""P"SP'a 0 14 • 0A 448/2020 in disciplinary proceedings, i.e. first stage advice is obtained on the investigation report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a copy of the Comm ission's first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him, for his information.
However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report, to give him an opportunity to make representation against IO's findings and the CV C's advice, if he desires to do so.
The supply of CVC advice is not for showing cause by the delinquent but only for information. As such, no prejudice would have caused to the applicant in the 0 respondents' not supplying a copy of the first stage advice. vi. As regards non adherence to the time limit as contended in the sixth ground, it has to be stated that wherever the Rules provide for, non adherence may be taken as fatal to the proceedings and certainly not when such stipulation of time limit is by way of OM of the DoPT.
·• 17. Now, testing the facts of the instant OA on the touchstone of above discussion, we find that there is no such allegation that charge memo has not been issued by an officer incompetent to do so or the matter of disciplinary CI proceedings is fairly old or any other ground legally available for quashing of charge memo. Therefore, the prayer for quashing charge memo is refused.
18. Keeping in view the ratio of the aforesaid decisions of the Supreme Court, High Court and Tribunal and the peculiar facts and circumstances of the case, we do not think it is a fit case where the Tribunalcould interferewiththe 15 OA448/2020 3 impugned order of the 1st respondent, particularly keeping in view the limited scope of interference in such matters.
• 19. Since the applicant has already submitted his reply to the charge memo, the authority concerned is directed to decide the same expeditiously in accordance with law on its own merits without being influenced by any of the observations made in this O.A. and the present order should not be construed as expressing any opinion on merits of the case.
20. With the above direction and observations, the O.A. is disposed of. There shall be no order as to costs.
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