Central Administrative Tribunal - Kolkata
Kartik Singh vs Eastern Railway on 24 August, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL E
KOLKATA BENCH
KO LKATA
N0.0 A.350/1309/2016
Coram Hon'bte Mrs. Bidisha Banerjee, Judicial Member
Hon'ble Dr.(Ms) NanditaChatterjee, Administrative Member
Kartik Singh, S/p Late Mohan Singh, aged
About46 years, working as Divisional Commercial
Manager., Eastern Railway, Asansol under control
of Divisional Railway Manager, Eastern Railway,
Asansol at present residing at Railway Quarter
No.1291/B, Traffic Colony, PO-Asansol,
District-Burdwan, Pin-7 13301, West Bengal
Applicant
-v E R S U S -
Union of India, through the General Manager,
Eastern Railway, Fairlie Place, Kolkata - 700001;
Chief Commercial Manager, Eastern Railway,
3,. Koilaghat Street, Kolkata-700001;
Senior Deputy General Manager, Eastern Railway,
Fairlie Place, Kolkata;
Deputy Chief Vigilance Officer(Traffic), Eastern
Railway, Fairlie Place, Kolkata-700001;
.5. Secretary-Vigilance, Railway Board, Rail Bhawan,
New Delhi-110001
Respondents
For the applicant : Mr. C. Sinha, counsel
For the respondents : Mr. S.K.Das, counsel
Heard o.n : 19.07.2018 Order on: 24 '/çP
ORDER
Bidisha Banerjee, JUdicial Member This application has been filed in order to seek the following reliefs:
1/ 2V "a) To set aside and quash the impugned Charge Memorancluni being No.SP264/D&A/KS(2) dated 22.12.2015 issued by General Manager, Eastern Railway;
To set aside and quash Impugned letter being No.C/CCM/COfl/VC/5 dated 18.08.2016 issued by Chief Commercial Manager, Eastern Railway;
To set aside and quash Impugned appointment of Enquiry Officer vide Order No.SP264/D&A/KS(2) dated 08.07.2016 issued by General Manager, Eastern Railway;
To set aside and quash Impugned Enquiry proceeding(Daily Order sheet) dated 08.08.2016;
Any other order or orders as the Hon'ble Tribunal deems fit and proper."
In the present case preliminary investigation was initiated on the basis of an anonymOus complaint and departmental action has been initiated on the basis of such investigation report and the materials and evidence gathered during such investigation.
Learned Counsel of the applicant would vociferously submit that in terms of CVC's Instructions dated 25/11/14, no action could be taken on anonymous or pseudonymous complaints and such complaints should just be filed. Therefore, action was prohibited. Materials or evidence gathered during the investigation for verifications of anonymous complaints and when such enquiry was initiated without the approval of the CVC, it could lead further to any disciplinary proceedings. Learned Counsel would echo the grievance of the applicant stating that the complaint was intentionally made with an intention to delay the process of granting vigilance clearance to an employee who was due for promotion. Ld. counsel relied upon CVC circular dated 07.03.2016.
Per contra the Learned Counsel for the respondents would submit that the complaints of 2013 were acted upon before the issuance of circular of November 2014, and, therefore, could be pursued for further enquiry, investigation and 3 initiatiofl of departmental proceedings for any misconduct noticed in such verifications or enquiry and, therefore, the charge memo was sustainable.
The issue for determination that arose in course of hearing was whether the \ charge sheetand the proceedings initiated on the basis of anonymous comblaint was sustainable or not.
A CVC circular dated 07/03/2016 that deals with action on anon us complaints stipulates as under, extracted to the extent found relevar and germane to the present us:
"Sub:- Action on Anonymous / Pseudonymous Complaints - reg. The Commission has been receiving references from Depart nts / Organisations seeking clarification on the action to be ta on anonymous/pseudonymous complaints which were acted upon and at differ stages of process including under disciplinary proceedings before issuance of CVC Ci ar No. th 07/11/2014 dated 25 November, 2014 on the captioned subject.
3. The instructions / guidelines issued from time to time on the subject-mtter by D0PT/CVCareasfollows:
DoPT's O.M. No. 321/4/910-AVD.111 dated 29.09.1992 that no action is required to be taken on anonymous/pseudonymous complaints in ~ieneral, provided the option to inquire into such complaints which contained verifiable details.
Commission's initial Circular No. 3(v)/99/2 dated 29.6.1999 pthscribing that no action should be taken on anonymou/pseudonymous compl a ints and should just be filed. I Commission's circular No.98/DSP/9 dated 31.1.2002 reiterating that under no circumstances, should any investigation be commeiced on anonymous/pseudonymous complaints. 1 Commission's circular No. 98/DSP/9 dated 11.10.2002 revi1wing its earlier instructions of 1999, providing that if any Departments! organisations F.L)IIIIJICIIIIL3IL uiiay 1 ii ... ... - - -
through the CV.O or the Head of the organisation.
V. DoPT O.M. No. 104/76/2011-AVD.1 dated 18.10.2013 that nolaction is required to be taken on anonymous cornplain$, irrespective of the ature of allegations and such complaints need to be simply filed.4
withdrawiflg vi. Commission's circular No.07/11/2014 dated 25.11.2014 Circular dated 11.10.2002 and reiterating previous circulars dated. 29.6. 1999 and 31.1.2002 to the effect that no action should be taken, on anonymq /pseudonymOUS complaints and such complaints should be filed.
4. XXXXXXXXXXXXXXXXXXXX Ld. Attorney General for India has furnished his opinion and clarified that unless expressly stated all Executive Circulars are prospective in nature and they do not have retrospective effect. Only a law can be retrospective if, a law expressly states that it will be retrospective or the intention to that effect is very dear. It is further clarified that an anonymous / pseudonymous complaint, say made in 1997 i.e. prior to the prohibitory circular dated 29.06.1999 ought to have been generally not entertained but if there was verifiable material in accordance with the DoPT's O.M. of 1 logical 1992 and investigation has commenced, the same would have to be taken to its conclusion notwithstanding the issue of a later circular dated 29.06.199.
5. Based on the opinion furnished by Ld. AG, the following clarifications are being issued:-
action should be taken on anonymous / pseudonymous complaints in 25th line with Commission's present instructions dated November, 2014 and such complaints should be filed.
However, where the action was initiated on anonymous/ pseudonmous complaints prior to the issue of CVC's circular dated 29.6.1999 and was pnding as on 29.6.1999, it can be pursued further to its logical end.
Where action was initiated on anonymous/ pseudonymous complaints between the period 11.10.2002 and 25.11.2014 with prior concurrence of CVC but is pending, further action is permissible on such complaints. iv. Material/evidence gathered during the investigation/verificatin of anonymous complaints when the action was prohibited on such complaints (i.e. between 29.06. 1999 & 11.10.2002), or where such enquiry was initiated without the approval of CVC, can be utilised for further initiation of disciplinary proceedings on misconducts noticed in such verification ,/ enquiry.
6. All Administrative Authorities / CVOs may note the above clarificati4s for guidance / compliance while handing and processing matters arising out of anonythous / pseudonymous complaints.
Sd,'-
(J. Vinod Kumar) Director"
7. The provisions of circular' exemplify and demonstrate that action on anonymous complaints between. the period 11.02.2002 and 24.11.2014 could be proceded with if initiated with prior concurrence of CVC. Admittedly an anonymous complaint, dated 12.06.2013, addressed to the ri S Advisor(Vigilance)/RaiIwaY Board, formed the basis of investigation in the pre1sent V case.
in terms of the CVC circular extracted supra, the said complaint dted 12.06.2013 could be acted upon only with prior concurrence of CVC.
Ld. counsel .for the applicant has vociferously alleged that no concurrence of CVC was obtained and, therefore, the consequent actions wore illegal.
Per contra the Id. counsel for the respondents would defend their a by submitting that the complainant sent his confidential letter of complaint dated 12.6.2013 to Advisor (Vigilance)/Raitway Board furnishing a number of verifi1able allegations/facts and figures of misusing Privilege Passes in illegal ma Railway Board, Vigilance vide their letter dated 10.07.2013 advised GM/E em Railway to look/enquire into the complaint of source information made inst the applicant, asit Was a serious one. Railway Board/Vigilance advised to ;ure that a consolidated report reached their office within six weeks. H rice, GM(Vigilance)/Eastern Railway decided to enquire into the complaint as e of information on 19.07.2013. Further that CVC itself sent a copy of u rCe information received in their office to Railway Board for necessary action it as source information vid,e CVC's office memorandum issued under their No.18899/13/Vig.1/218817 dated 8.7.2013.
Ld. counsels were heard and materials on record were perused. It came to the notice of this Tribunal that the railways are conspicuo.ts by their silence on "Prior concurrence of CVC". They referred to a letter dted 08.07.2013(Annexure R/2), that of a Section Officer of CVC who sirppl.y forwarded the complaint to Railway Board for action which cannot, undr any stretch of imagination, be termed as "Concurrence of CVC."
14th jUl 2016 However, we cannot remain oblivious to the Circular dated which says that even anonymous complaints can be verified if its allegatiohs are serious and Hon'ble Apex Court's decision legitimising the practice of anonymous whistle blowing.[(2010)8 SCC 281].
In Pradip Kumar Guha Vs Union of India and Others[2008(2) SLJ 332 CAT] this Tribunal held that:
"It is true that ordinarily the Court or Tribuhal should not interfre at the chargesheet stage in disciplinary matters but in a case wher p the applicant has raised issue that delay in initiation of disciplinary action has been prejudicial to his interest and that action against him was initiated without any basis, the Court felt it incumbent to lift the veil by going through the departmental records produced by the respondents and s4e the facts of the case to come to a conclusion."
The Hon'ble Court found that "an anonymous complaint was received by the Ministry of Health & Family Welfare in September, 1998 imp/ic1 ating eight (8) officers, one of them being the applicant in that case. Whe1n the matter was dealt with in the file and put up to the CVO of the Ministi4', the officer in his notes dated 01/09/1998 observed that 'anonymous complaint cannot start vigilance enquiry as per CVC's direction.' The same view was reiterated by the Chief Vigilance Officer on 09/04/03 when the vigilance clearance in respect of the applicant for appointment as Director, CDL Cakutta was sought for and it was obsrved that the Director GHS constituted a Committee under the Chairmanstip of AddI DG (RKS) to enquire into the matter. The Committee submittd its report saying that since the allegations contained names of private parties/persons this may be given to a professional body like CB1 for investigation. Further the Committee found nothing against the appIiant. No chargesheet or disciplinary proceedings were initiated against him. The applicant P.K. Guha was earlier accorded vilgilance clearance in connection with his in situ promotion dated 05/09/2000. The allegation containd in anonymous complaint was enquired into by a Committee which give its report and that was examined vide office note dated 05/08/2003. In that note, without any reference to the observations made in the earlier hote dated 09/04/2003, it was observed that from the complaint it is seen ithat P.K. Guha along with two others were perhaps responsible for the all4ged irregularities for the said period. Further we may refer the case to CVC for first stage advice.
7After receipt of advice dated 06/11/2002 of CVC the respondent initiated action to peruse the relevant documents/profile/register of GDMS, Guhawati and Cicutta for framing of charge. The matter then remained pending for study of the documents for two years. The chargesheet was actually issued on 13.06.2005 after obtaining clearance of disciplinary authority on 26/04/2005 and, therefore, the Court found that the anonymous complaint was opened up after several years to consider vigilance/disciplinary action against the applicant."
The Tribunal held that "the charge memo dated 13/06/2005 issued against the applicant was unsustainable in the eye of the law being arbitrary, irregular, illegal, irrational, premeditated and in violation of CVC Instructions and, therefore, liable to be quashed."
is. In the instant case, we noticed that CVC concurrence would have lend an entirely differnet complexion to the matter(action on complaint) which otherwise ought to have been filed:
16. in the aforesaid backdrop we remand the matter back to the disciplinary authority to examine satisfaction of the conditions enumerated in the CVC circular supra, before proceeding further with the matter.
Based on its revelations on scrutiny, the disciplinary authority shall be at liberty either to withdraw the charge memo or to proceed with it.
18. The O.A. stands disposed of. No costs.
(Dr. Nandita Chatterjee) (Bidisha Barcerjee)
Administrative Member Judicial Member
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