Central Administrative Tribunal - Delhi
Mukesh Kumar Pal vs Finance on 11 July, 2025
Item No. 18/C-2 OA No. 3/2023
Central Administrative Tribunal
Principal Bench,
New Delhi
O.A. No. 03 of 2023
Orders reserved on : 03.07.2025
Orders pronounced on : 11.07.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Mukesh Kumar Pal,
Aged about 39 yrs,
S/o Rishiram Pal
R/o M-704, Ajnara Daffodil,
Sector-137, Noida,
UP-201305
Group-A
Post: Joint Commissioner
... Applicant
(By Advocate: Mr. Harpreet Singh, Mr. G.D. Chawla)
Versus
1. Union of India
Through Secretary
Ministry of Finance,
North Block, New Delhi-110001
2. The Central Board of Indirect Taxes & Customs,
Through its Chairman,
North Block,
New Delhi-110001
...Respondents
(By Advocate: Mr. S N Verma)
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Item No.18/C No.2 2 OA No.03/2023
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(i) Quash and set aside memorandum dated 11.12.2017.
(ii) Quash and set aside inquiry report dated 28.02.2019.
(iii) Quash and set aside penalty order dated 24.12.2021.
(iv) Award costs of the present OA in favour of the Applicants;
(v) Pass any other order/orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
2. FACTS OF THE CASE AS STATED BY THE APPLICANT 2.1 The applicant is an officer of the Indian Revenue Service (Customs & Indirect Taxes), 2007 batch, who joined the office of the Respondents as Assistant Commissioner (Probationer) at Mussoorie on 18.08.2007. Until the issuance of the impugned Memorandum dated 11.12.2017, the applicant has maintained an unblemished service record and has consistently discharged his duties to the utmost satisfaction of the Respondents.
2.2 The present proceedings emanate from the issuance of the impugned Memorandum dated 11.12.2017, issued in the name of the President of India, proposing to initiate an inquiry against the applicant under Rule 16(1)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The said Memorandum contains three Articles of Charge, all of which relate to an investigation conducted by the Vadodara Regional Unit of the erstwhile Directorate General of Central Excise Intelligence ('DGCEI'), now renamed as the Directorate General of GST Intelligence ('DGGI'), during which the applicant was posted as Assistant Director. The case under investigation pertained to 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 3 OA No.03/2023 alleged duty evasion by M/s Shree Ji Aluminium and certain purchasers of raw materials from the said entity.
2.3 The crux of the allegations in the impugned Memorandum is that the applicant was negligent and casual in preparing the draft Show Cause Notice for M/s Shree Ji Aluminium, which was to be placed before the Additional Director General. It was further alleged that the applicant failed to investigate the aspect of diversion of imported scrap and availment of CENVAT credit without actual receipt of goods. These allegations formed the basis of Articles I and II of the impugned Memorandum, which were held to be partially proved by the Inquiry Officer. By Article III, it is alleged that the applicant failed to address all aspects recorded in the intelligence file while preparing the said draft Show Cause Notice, was held to be not proved by the Inquiry Officer.
2.4 Upon receipt of the impugned Memorandum, the applicant submitted his representation (Annexure A-4), acknowledging receipt and inter alia praying for closure of the proceedings. In his representation, the applicant categorically denied all the charges and raised several grounds and justifications in his defence.
2.5 Thereafter, the respondents initiated formal inquiry proceedings. Vide order dated 25.05.2018, an Inquiry Officer was appointed to conduct the inquiry into the charges framed against the Applicant. On the same date, a Presenting Officer was also appointed. Prior to the commencement of the inquiry, the Applicant sought certain relied-upon documents from the Respondents to enable him to effectively defend himself. The said documents were subsequently supplied, and a series of correspondences were exchanged in this regard between the applicant and the Respondents (Annexure A-5). The Inquiry Officer thereafter commenced the inquiry proceedings. During the course of the inquiry, the two prosecution witnesses named in the 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 4 OA No.03/2023 Memorandum were summoned, examined, and cross-examined by the applicant (Annexure A-6). The applicant also appeared before the Inquiry Officer on 27.02.2019 for his general examination in terms of Rule 14(18) of the Rules of 1965. Upon completion of the examination, the Inquiry Officer closed the inquiry. The Presenting Officer thereafter submitted his brief, and the applicant filed his written submissions before the Inquiry Officer on 06.02.2019 (Annexures A-7 and A-8).
2.6 The inquiry officer submitted his inquiry report on 28.02.2019 and held Article 3 to be not proved and in so far as Articles 1 & 2 are concerned, the inquiry officer in his common findings has held the said charges to be partially proved. While holding so the inquiry officer has held as under:-
"From the above, it appears that there has been lack of proper supervision in the investigation of the case. Without putting any question mark on the conduct of earlier officer, I would restrict myself to the present case. I find that the charged officer has lacked proper supervision over the case as he could have seen the information available with him before finalizing the SCN in the case. The statements of the IO and SIO show that there has been communication gap between the investigating team and the supervisory officer. The issue of diverting imported scrap in the local market and availing credit of CVD appears to have been missed out of this communication gap even though CHA of M/s Shreeji Aluminium Pvt. Ltd., was searched and the documents were seized. The letter dated 11.10.2020 addressed to the Dy. Commissioner (Statistics) JNCH Nhava Sheva shows that the issue was very alive in October, 2010 but it somehow got not communicated to the investigating team at that time. Similarly, the remaining two unite should have been searched as soon as search in the main unit was conducted in September, 2010 as delaying search in respect of some units would certainly had impacted the availability of evidences. The plea of the CO for not looking to the information file and showing faith on the investigating team that all the issues have been covered may be a practical approach but it is not very convincing. Therefore, I find that the charged officer has lacked proper supervision over the case though it appears unintentional. The charges levelled against the to be Charged Officer in Article 1 & 2 are partially proved."
2.7 The inquiry report was accepted by the disciplinary authority and the same was provided to the applicant for submitting his representation against the same, if any. The applicant vide his representation dated 11.10.2019 (Annexure A-9) 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 5 OA No.03/2023 filed a detailed response to the inquiry report refuting each allegation which was held to be partially proved against him, however, the said representation was rejected by the competent authority and, thereafter, the matter was referred to the UPSC under Rule 15 of the Rules of 1965 seeking its advice. In response to the same, the UPSC forwarded its advice dated 16.08.2021 (Annexure A-10).
2.8 Vide its letter dated 25.08.2021, the respondents provided a copy of the UPSC advice to the applicant for submitting his representation and which was duly replied to by the applicant. Vide representation dated 01.10.2021 (Annexure A-11), the applicant filed a detailed representation on the said UPSC advice and prayed for dropping of the proceedings and exoneration from the charges leveled against him.
2.9 The aforesaid representation of the applicant failed to elicit any positive response from the respondent department and finally vide letter dated 28.12.2021, the applicant was served upon with Order No. 37/2021 dated 24.12.2021 whereby the penalty of reduction to lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely effecting his pension, has been imposed upon the applicant. Hence, the present OA.
3. ARGUMENTS OF APPLICANT'S COUNSEL 3.1 Learned counsel for the applicant submitted that the impugned Memorandum issued to the applicant is baseless and without any merit. He submitted that there is no misconduct which has been committed by the applicant and in fact, nothing even was brought on record during the entire inquiry proceedings which could even remotely establish any misconduct on part of the applicant.
3.2 Learned counsel for the applicant also submitted that the impugned penalty order passed by the respondents is illegal, 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 6 OA No.03/2023 arbitrary and violative of Articles 14 & 16 of the Constitution of India, 1950 in as much as the same has miserably failed to appreciate the submissions put forth by the applicant and therefore, the same deserves to be quashed and set-aside on this short ground alone.
3.3 The impugned penalty order passed by the respondents seems to have been passed in haste without considering the overall facts and circumstances of the case and the defence adduced by the applicant while presenting his case before the respondents' authorities. Further, the impugned inquiry report and the impugned penalty order also deserve to be quashed on the ground that the same ignore the entire positive material which surfaced during the inquiry proceedings in favour of the applicant. The inquiry officer has chosen to disregard whatever positive evidence came to light in favour of the applicant during inquiry proceeding and the disciplinary authority has also chosen to ignore the same. It is trite that during inquiry proceedings, the authorities are bound to take note of the entire material and evidence which is/are brought forth before the inquiry officer and then take a holistic view in the matter as has been held by the Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank & others, (2002) 9 SCC 570, that the departmental authorities cannot ignore the defence adduced by the charge officer and in fact they are duty bound to take the same into consideration and then take an independent view in the matter. The facts of the present case, which were recorded during the inquiry proceedings, clearly established the fact that no misconduct can be attributable to the applicant but the same has been conveniently ignored by the respondents. Therefore, the entire proceeding deserves to be quashed and set-aside.
3.4 Learned counsel for the applicant further submitted, in the facts of the present case, there was no direct evidence against the applicant. Even there was no indirect evidence. The inquiry officer also holds that no mala fide intention can be attributed to 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 7 OA No.03/2023 the applicant. As such, in the circumstances, there was no occasion for the inquiry officer even to hold that the charges I & II stood partially proved. The inquiry officer also appears to have not applied his mind to the fact that Article-1 as contained in the impugned Memorandum and Article 3 thereof were similar in nature and when the inquiry officer has concluded that Article 3 did not stand proved, he could not have, in any manner, held that Article-1 stood partially proved. In this regard, the relevant portions of Article 1 & 3 are being reproduced hereunder for the purposes of ready reference:-
"Article-1 "This clearly brings out that the investigation of the case was done in a very negligent and casual manner and show cause notice was put up in a perfunctory manner by Shri Mukesh Kumar Pal in as much as he failed to notice shortcomings in investigations.
Thus, by acting in the above said manner, Shri Mukesh Kumar Pal, Deputy Director has exhibited gross negligence and lack of devotion to duty, thereby contravened the provision of Rule 3(1) () of CCS (Conduct) Rules, 1964 acted in a manner unbecoming of a Government Servant thereby contravened the provisions of Rule 3(1) (iii) of CCS (Conduct) Rules, 1964.
Article-3 Since, the show cause notice was issued during his tenure, it was incumbent upon Shir Mukesh Kumar Pal to ensure that all aspects covered in the recorded intelligence are investigated and covered in the show cause notice to be issued. This was not done by Shri Mukesh Kumar Pal. Thus, by acting in the above said manner Shri Mukesh Kumar Pal has exhibited gross negligence and failed to maintain devotion to duty, thereby contravened the provisions of Rule 3(1) (ii) of CCS (Conduct) Rules, 1964 acted in a manner unbecoming of a Government Servant thereby contravened the provisions of Rule 3(1) (iii) of CCS (Conduct) Rules, 1964."
3.5 Learned counsel for the applicant further submitted that a bare perusal of the aforesaid Articles of charge would reveal that both Articles I & III in the impugned Memorandum alleged that the applicant did not cover all the aspects in the show cause notice which was issued during his tenure. In the circumstances, when one Article of charge was held to be not proved, the other Article of charge (Article I) could not have been held by any stretch of imagination to be partially proved. The basic charge against the applicant i.e. charges I & II, which were held to be partially proved 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 8 OA No.03/2023 by the Inquiry Officer), were broadly in relation to an investigation carried out by the Vadodara Regional Unit of the erstwhile DGCEI (Now 'DGGI') where applicant was posted as Assistant Director, in relation to a case of duty evasion alleged against once M/s Shree Ji Aluminium. The Inquiry Officer while holding the said charges (I & II) to be partially proved held that there was a lack of proper supervision in the investigation of the case. The Inquiry Officer held that the applicant should have seen the information available before finalizing show cause notice and also that there was communication gap between the investigation team and the applicant. In the same breath, the inquiry officer also held that the action of the applicant was unintentional.
3.6 Learned counsel for the applicant submitted that the applicant had joined the DGCEI Vadodara Regional Unit on 01.09.2011 after taking charge from Shri Mohd. Altaf. The allegations against the applicant pertain to an intelligence which was filed in three (3) parts about a year earlier to the applicant taking charge and all the three (3) parts were filed from a single intelligence file under one entry made in the intelligence register. The investigation pertained to the issues of fraudulent availment of CVD on imported scraps; clandestine removal of aluminum profile and duty evasion by various other units which CENVAT credit on fake invoices supplied by M/s Shreeji Aluminum. It involved separate investigations/case against M/s Shreeji Aluminum and each of the units availing fake CENVAT credit. Thus, separate SCNs-1 for duty demand to M/s Shreeji Aluminum for duty evasion by fraudulent availment of CVD on imported scraps without its receipt and clandestine removal of aluminum profile & other SCNs to each of the units which has availed CENVAT credit on fake invoices supplied by M/s Shreeji Aluminum were to be issued. Few SCNs have already been issued prior to the joining of the applicant so it was never a case of issuance of a single SCN covering all parts of the intelligence.
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Item No.18/C No.2 9 OA No.03/2023
3.7 It is also submitted that subsequent to filing of
intelligence, searches were conducted regarding this intelligence during the tenure of then Deputy Director posted earlier to the applicant. Then incidence report was issued in December 2010. The incidence report mentioned that M/s Shreeji Aluminum had evaded duty by clandestine removal of their final product. It is also mentioned the issue of supply of fake invoices by M/s Shreeji Aluminum through a Bhavnagar based dealer and to M/s Arrow Engineers but it has no mention of fraudulent availment of CVD on imported scarp by M/s Shreeji Aluminum. In fact, the incidence report has a gist of the intelligence in the introduction part but even there was no mention of fraudulent availment of CVD by M/s Shreeji Aluminum. When the applicant joined the DGCEI, the investigation into various cases booked with regard to this intelligence were already 12 months old and even few SCNs have already been issued in some cases. When the applicant joined DGCEI, he was not given any brief during handing over/taking over note, including any information about the pending parts/issues of this intelligence and, therefore, the applicant was not informed by his predecessor about any part of this intelligence on which action had yet not been taken even after 1 year of its filing or any part in which investigation had yet not been initiated. This was confirmed by Shri Mohd. Altaf, in his statement dated 22.01.2016 in answer to question nos. 17 and 18. Thus, as can be seen from the above, the applicant was never made aware of the allegations of wrong availment of CVD on imported scraps by M/s Shreeji Aluminum and, therefore, the charges leveled against the applicant were totally unfounded and baseless.
3.8 Learned counsel for the applicant further submitted while in the present proceedings, re-appreciation of evidence may not be done, however, as has been held by the Hon'ble Supreme Court in the case of Roop Singh Negi (supra), this Hon'ble Tribunal can and in fact, must analyze as to whether there is any evidence at all 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 10 OA No.03/2023 in support of the impugned conclusion and even if whatsoever evidence did come on record, does the conclusion follow that the charges in question stood partially proved against the applicant. This approach will avoid weighing the evidence and will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. In case this test is applied, it will be revealed that the entire case against the applicant is based on no evidence.
3.9 Further, upon joining his post, the applicant undertook the standard procedure of reviewing the list of cases pending investigation. In doing so, he ensured that all pending matters, including the one related to M/s Shreeji Aluminium, were attended to. Upon perusal of the intelligence register, the applicant found that the intelligence in question had already been acted upon and executed. In light of this, there was no occasion or justification for reopening an intelligence file that had already been executed over a year ago. It is further submitted that in all such cases, including the one concerning M/s Shreeji Aluminium, intelligence brief is maintained on file. The applicant meticulously ensured that all aspects contained in such brief were duly examined and covered. This fact remains uncontroverted but has been entirely ignored by both the Inquiry Officer and the Disciplinary Authority, resulting in a miscarriage of justice.
3.10 It is further submitted that a perusal of the Inquiry Report, particularly, the portion dealing with Articles I and II, reveals a glaring inconsistency. While the Inquiry Officer records and seemingly appreciated the applicant's submissions in paragraphs 3 to 8, he inexplicably reverses his view in paragraph 9 by observing that there was a lack of proper communication between the investigating team and the supervisory officer, thereby holding the charges partially proved. This reasoning is fundamentally flawed. It is crucial to note that the investigating team, comprising Shri Tushar P. Arothe (IO) and Shri M.B. Jain (SIO), clearly deposed during the inquiry proceedings about the 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 11 OA No.03/2023 nature and extent of briefing and instructions given to them. However, these instructions were issued not by the applicant, but by his predecessor. The applicant joined the post only on 03.09.2011, by which time the investigation was already a year old and most of the show cause notices had been issued. Even the Inquiry Officer records in paras 8 and 9 that the applicant assumed charge at a much later stage. The relevant intelligence brief also makes no mention of any issue concerning wrongful availment of Cenvat Credit by M/s Shreeji Aluminium Pvt. Ltd. Therefore, there can be no allegation of misconduct or lapse attributable to the applicant on account of non-communication or supervision.
3.11 Regarding the allegation of failure to conduct searches at M/s Komal Atomizer Pvt. Ltd., Valsad and M/s Metal Best & Co., it is submitted that the intelligence was filed and necessary search operations were conducted during the tenure of the then Deputy Director Shri Vinish Chaudhary and his successor Shri Mohammad Altaf, prior to the applicant joining on 03.09.2011. An Incidence Report was issued in December 2010, which detailed the modus operandi of M/s Shreeji Aluminium Pvt. Ltd. in clandestine removal of goods and issuance of fake invoices. However, there is no mention whatsoever either in the Incidence Report or the gist of intelligence about fraudulent availment of CVD on imported scrap by M/s Shreeji Aluminium. At the time of applicant's joining, the investigations were nearly completed and several SCNs had already been issued. Importantly, no formal handing-over briefing was given to the applicant regarding any unfinished or pending portions of this intelligence, a fact confirmed by his predecessor Shri M. Altaf in his statement dated 22.01.2016. Therefore, the allegation regarding non-conduct of searches is unfounded and baseless.
3.12 Learned counsel for the applicant further submitted that it is a well-settled legal principle that an Inquiry Officer cannot travel beyond the scope of the charges framed and the 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 12 OA No.03/2023 documents/witnesses relied upon in the charge memorandum. A bare reading of the inquiry report makes it evident that the IO has gone beyond the scope of the charge memorandum as well as the relied upon documents (RUDs). The charge memorandum does not attribute any lapse in supervision or communication to the applicant. No such allegation is specifically framed, nor is there any documentary or testimonial basis to support it. Further, no disciplinary proceedings were initiated against any of the investigating officers, clearly indicating that no lapse was attributed to the functioning of the team under the applicant. This strengthens the inference that the purported finding of lack of communication is both extraneous and unsustainable. The IO has not relied on any of the RUDs annexed to the charge memorandum while arriving at the impugned conclusion. Instead, the IO relies on a letter dated 11.10.2010 addressed to the Deputy Commissioner (Statistics), JNCH, Nhava Sheva. However, this document is not listed as a RUD and was authored by a Deputy Director nearly 11 months prior to the applicant assuming the charge of the said post. The said letter contains no reference to any pending aspect of the intelligence or omission by the applicant, and thus cannot form the basis for any adverse conclusion against him.
3.13 Lastly, learned counsel submitted that the findings recorded by the Inquiry Officer suffer from perversity, non- application of mind, and are based on surmises and conjecture. The disciplinary proceedings against the applicant are vitiated by failure to adhere to settled principles of natural justice and due process, warranting interference.
4. REPLY OF THE RESPONDENTS 4.1 Per contra, learned counsel appearing for the respondents raised a preliminary objection that the issue pertains to incomplete investigation which resulted in issuance of incomplete Show Cause Notice. The applicant failed to investigate 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 13 OA No.03/2023 wrong availment of CENVAT credit and did not verify the intelligence file before finalizing the investigation due to which investigations were not conducted properly, including not conducting search of premises of some of the assessees, and that the applicant failed to examine properly the documents retrieved during the course of search by his predecessor(s).
4.2 Further, it is stated that the investigations were based on information that was recorded on 05.07.2010 and subsequent supplementary information recorded on 07.10.2010 and 11.09.2010 (Annexure R-1). The recording of the information had taken place before the applicant joined the DGCEI unit as DD of the unit. The applicant was in possession of the information.
4.3 Learned counsel for the respondents submitted that the Charge Memorandum No.34/2017 dated 11.12.2017 for Major Penalty proceedings has been issued on the basis of documentary evidences & witnesses as given in Annexure-III & Annexure-IV to the Charge Memorandum. The Inquiry Officer, after inquiry, concluded two charges as 'partially proved' and one as 'not proved.' Disciplinary Authority duly considered the Inquiry Report and tentatively agreed with the findings of the inquiry officer. The DA decided to impose Minor penalty of "reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely affecting his pension" vide Final Order No. 37/2021 dated 24.12.2021 after considering all the facts of the case and in consultation with UPSC.
4.4 Respondents' counsel further submitted that the Disciplinary proceedings have been conducted by following the due procedure, law and principles of natural justice. Penalty Order No. 37/2021 dated 24.12.2021 was issued after considering all the facts of the case. The Inquiry officer submitted inquiry report after considering all the documentary evidences, witnesses and applicant's submission. The case law quoted by applicant is not 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 14 OA No.03/2023 applicable in instant case as the facts and circumstances of both cases are different. The Inquiry officer has discussed the evidences in detail in regard to Articles 1 and 2 on pages 14-16 of the Inquiry Report. Inquiry officer submitted inquiry report after considering all the documentary evidences and concluded two charges as 'partially proved' and one as 'not proved.' 4.5 From a detailed reading of the Article-1 and Article-3 of the charge memorandum, it can be seen that both the articles are not same and Inquiry officer held Article-1 as partially proved and Article-3 as not proved after considering all the documentary evidences, witnesses and applicant's submission. The submissions made by the applicant during the course of inquiry were duly considered by the inquiry officer and the inquiry officer submitted inquiry report after considering all the documentary evidences, witnesses and applicant's submission. Disciplinary Authority ie. the Hon'ble Finance Minister, has taken a decision after considering all the facts of the case and in consultation with UPSC. Consequence to that a penalty order was issued. On perusal of para 5 at page 15 of inquiry report, it is seen that letter dated addressed to the Dy. Commissioner (Statistics), JNCH, Nahava Sheva is part of the case file.
5. REJOINDER 5.1 Learned counsel for the applicant besides reiterating submissions as noted above submitted that though the penalty proposed by the department is harsher than many of the defined major penalties in CCS (CCA) Rules but it is neither one of the defined minor penalty nor major penalty in CCS (CCA) Rules which shows that the departmental authorities have complete lack of the knowledge of the even basic provision of the vigilance. This reckless and callous approach of the authorities in sensitive matters like vigilance where the careers of the officers and the lives of their family members are involved shows the bias and irresponsible manner in which this case was handled. As per 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 15 OA No.03/2023 CVC/DOP&T instructions, if department is of opinion that a penalty higher or lower than the penalty advised by the CVC in its first stage advice is required to be imposed, then department need to refer the case to CVC for second stage advice before seeking advice of UPSC for the quantum of the penalty. 5.2 Learned counsel also submitted that the applicant was issued a Minor penalty charge Memorandum on the basis of first stage advice of CVC so department before proposing a harsher penalty to UPSC should have sought second stage advice of the CVC which was not done in this case. The IO in its inquiry report of Minor Penalty proceedings has concluded two charges as partially proved and one charge as not proved. If department wanted to disagree with the Inquiry report and propose a harsh penalty then they were required to give disagreement note on inquiry report to the applicant for the comments/representation of the applicant. This was not done in this case which was complete in violation of the principle of natural justice. Lastly, it is submitted that the inquiry report has already been accepted by the President so it was not open to the department to take contrary view later without emergence of any new fact. In any case the comments of the applicant should have been taken if some contrary view was being taken after communicating the acceptance of the inquiry report to the applicant. 5.3 Learned counsel also submitted that the penalty imposed upon the applicant not only adversely effected his pension but also damage to the career of the applicant was much higher, far reaching and immeasurable. The promotion of the applicant from JAG to NFSG grade which involves substantial salary increase was delayed by 3 years. The applicant was not able to work in field formations of department at the crucial middle management level because of these proceedings and hence failed to get the crucial exposure of the working of the department. The applicant was not able to apply for central deputation at the level of Deputy Secretary/Director to the government of India and even now may not be able to apply for deputation for another three year because 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 16 OA No.03/2023 as per DOPT guidelines vigilance clearance is normally not granted for a period of 3 years after the currency of penalty in case of minor penalty. As applicant will not be able to work at the level of Deputy Secretary/Director to the government of India so he will not be able to get empanelled as JS/AS/Secretary to the Government of India.
5.4 It is further submitted that the applicant has suffered irreparable career prejudice, having lost a crucial period of 7-8 years of his service tenure. Despite this, the applicant has consistently discharged his duties with utmost honesty, integrity, and dedication. This is amply demonstrated by his Annual Performance Appraisal Reports (APARs), wherein he has been rated exceptionally high, including a consistent grading of 10/10 in most years of his service. The remarks recorded by his reporting and reviewing officers unequivocally endorse his integrity as being beyond reproach and contain high commendation for his professional competence and conduct.
ANALYSIS
6. Since this matter pertains to departmental proceedings, we deem it apt to observe that it is settled principle of law that in departmental proceedings, the Disciplinary Authority is the sole judge of facts. Once findings of fact, based on appreciation of evidence are recorded by the Disciplinary Authority and Appellate Authority, normally the Court/Tribunal may not interfere with those factual findings, unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court/Tribunal, since the High Court/Tribunal does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review. The Tribunal cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities.
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6.1 In this regard, it we deem it fit to refer catena of
judgments on the point of scope of judicial review by the Courts/Tribunals, the Three Judges Bench of the Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80] wherein it has been held as under:
"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court/tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR p. 728 (AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
(emphasis supplied) 6.2 In another case in the matter of Union of India vs. P. Gunasekaran reported in (2015) 2 SCC 610, the Hon'ble Supreme Court held that while re-appreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings as under:-
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
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(vii) go into the proportionality of punishment unless it shocks its conscience."
6.3 In another judgment rendered by the Three Judge Bench of the Hon'ble Supreme Court in the case of SBI vs. Ajay Kumar Srivastava, reported in (2021) 2 SCC 612: (2021) 1 SCC (L&S) 457, by referring the law laid down in B.C. Chaturvedi (supra) and catena of other judgments, the Hon'ble Apex Court held as under:-
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority............"
23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Bench of this Court in Pravin Kumar v. Union of India [Pravin Kumar v. Union of India, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103] .
24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 19 OA No.03/2023
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
(emphasis supplied)
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
(emphasis supplied) 6.4 Further, the Hon'ble Apex Court in the State of Karnataka & Anr. vs. Umesh (2022) 6 SCC 563: (2022) 2 SCC (L&S) 321, emphasised about the scope of judicial review by the Courts/Tribunal in the matter of disciplinary/departmental inquiry and held that: -
"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 20 OA No.03/2023 the disciplinary authority. The court does not re- appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
7. Keeping in view the legal principles laid down by the Hon'ble Supreme Court, as noted above, and after considering the facts and circumstances of the present case, it is observed that although counsel for the applicant has argued various grounds, however, he has mainly argued that the Inquiry Officer while holding that the articles of charge nos.1 and 2 partially proved has mainly relied upon a letter dated 11.10.2010 addressed to the Deputy Commissioner (Statistics), JNCH, Nhava Sheva, but the said document was neither a part of the list of documents annexed with charge sheet nor was brought on record by the concerned IO in accordance with the rules on the subject, thus, the IO's report is vitiated being clearly violative of principles of natural justice. This fact although brought to the notice of the disciplinary authority but the disciplinary authority rejected the same and awarded the punishment of reduction to lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely effecting his pension by the impugned order dated 28.12.2021.
8. For delving upon the above contention of the learned counsel for the applicant, we have perused the IO's report dated 28.02.2019, the relevant portion of which reads as under:-
"9. From the above, it appears that there has been lack of proper supervision in the investigation of the case. Without putting any question mark on the conduct of earlier officers, I would restrict myself to the present case. I find that the charged officer has lacked proper supervision over the case as he could have seen the information available with him before finalizing the SCN in the case. The statements of the 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 21 OA No.03/2023 IO and SIO show that there has been communication gap between the investigating team and the supervisory officer the issue of diverting imported scrap in the local market and availing credit of CVD appears to have been missed out of this communication zap even though CHA of M/s Shreeji Aluminium Pvt Ltd., was searched and the documents were seized The letter dated 11.10.2010 addressed to the Dy Commissioner (Statistics) JNCH Nhava Sheva shows the issue was very alive in October, 2010 but it somehow got not communicated to the investigating team at that time Similarly, the remaining two units should have been searched as soon as search in the main unit was conducted in September 2010 as delaying search in respect of some units would certainly had impacted the availability of evidence. The plea of the CO for not looking to the information file and showing faith on the investigating team that all the issues have been may be a practical approach but it is not very convincing. Therefore, I find that the charged officer has lacked proper supervision over the case though it appears to be unintentional. The charges leveled against the Charged Officer in Article 1 & 2 are partially proved."
9. From the above finding of the IO's report, it is apparent that IO had relied upon the said letter dated 11.10.2010 for holding the articles of charge nos.1 and 2 as partially proved in his said report. It is trite law that when an Inquiry Officer (IO) relies upon exterior or extraneous documents, i.e., documents not part of the charge-sheet or not provided to the charged officer during disciplinary proceedings, the Hon'ble Supreme Court has repeatedly held that such reliance vitiates the inquiry as it violates principles of natural justice and fair hearing. In State of Uttar Pradesh v. Mohd. Sharif, reported in (1982) 2 SCC 376, the Hon'ble Supreme Court held that If any material not disclosed to the delinquent employee is relied upon in the inquiry report or decision, the inquiry is vitiated, as it is not open to the Inquiry Officer to use any material against the delinquent without affording him an opportunity to rebut the same. The relevant portion of the said judgment reads as under:-
"3. After hearing counsel appearing for the State, we are satisfied that both the appeal court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 22 OA No.03/2023 against him and he was prejudiced in the matter of his defence. Only two aspects need be mentioned in this connection. Admittedly, in the charge-sheet that was framed and served upon the plaintiff no particulars with regard to the date and time of his alleged misconduct of having entered Government Forest situated in P.C. Thatia district, Farrukhabad and hunting, a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank, were not mentioned. Not only were these particulars with regard to date and time of the incident not given but even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these plaintiff was obviously prejudiced in the matter of his defence at the enquiry. Secondly, it was not disputed before us that a preliminary enquiry had preceded the disciplinary enquiry and during the preliminary enquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary enquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary enquiry was also rejected. In the face of these facts which are not disputed it seems to us very clear that both the first appeal court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary enquiry; it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses he was prejudiced in the matter of his defence. Having regard to the aforesaid admitted position it is difficult to accept the contention urged by the counsel for the appellant that the view taken by the trial court should be accepted by us. We are satisfied that the dismissal order has been rightly held to be illegal, void and inoperative. Since the plaintiff has died during the pendency of the proceedings the only relief that would be available to the legal heirs of the deceased is the payment of arrears of salary and other emoluments payable to the deceased."
9.1 Further, the Hon'ble Supreme Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority. In considering the importance of access to 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 23 OA No.03/2023 documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows:
"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
9.2 The Hon'ble Supreme Court in the case of State of U.P. and others vs. Saroj Kumar Sinha, reported in 2010 (2) SCC 772, has also ruled that :
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 24 OA No.03/2023 the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969) "... Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
10. In view of the above legal position, without delving upon other contentions of learned counsel for the applicant, we hold that IO's report dated 28.2.2019 is not sustainable in the eyes of law and as such, therefore, consequent order passed on the basis of the said IO's report is/are also deserve(s) to be quashed.
11. In view of the above facts and circumstances of the case, and for the reasons stated hereinbefore, the impugned Inquiry Report dated 28.02.2019 and the consequential punishment order dated 24.12.2021 are liable to be set aside. Ordinarily, upon quashing the Inquiry Officer's report and the resultant disciplinary order(s), this Tribunal would remit the matter to the Disciplinary Authority to proceed afresh in accordance with law, 2025.07.14 RAVI KANOJIA 16:18:13+05'30' Item No.18/C No.2 25 OA No.03/2023 either from the stage of issuance of the charge-sheet or such other stage as may be deemed appropriate. However, in the present case, we are of the considered opinion that the allegations pertain to the period from 2008 to 2010, whereas the applicant joined the post only on 02.09.2011, and we are now in the year 2025. Considering the inordinate delay and the totality of circumstances, we are not inclined to remit the matter for a fresh inquiry.
12. Accordingly, the Original Application is allowed with the following directions:
(i) The Inquiry Officer's Report dated 28.02.2019 (Annexure A/2) and the Disciplinary Authority's order dated 24.12.2021 (Annexure A/3) are quashed and set aside; and
(ii) The applicant shall be entitled to all consequential benefits, in accordance with law and the applicable rules.
13. Pending MA(s), if any, shall stand disposed of.
14. There shall be no order as to costs.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
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2025.07.14
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