Central Administrative Tribunal - Delhi
Abid Ali vs Union Of India: Through on 10 December, 2008
Central Administrative Tribunal Principal Bench OA No.1135/2008 MA No.915/2008 New Delhi this the 10th day of December 2008. Honble Mr. Shanker Raju, Member (J) Honble Mrs. (Dr.) Veena Chhotray, Member (A) Abid Ali, Lower Division Clerk, Office of Joint Commissioner of Income-Tax, Range-2, Agra. -Applicant (By Advocate Shri B.S. Mainee) -Versus- 1. Union of India: through Secretary, Ministry of Finance, North Block, New Delhi. 2. Chief Commissioner of Income-Tax, 16/69, Ayakar Bhawan, Civil Lines, Kanpur. 3. Joint Commissioner of Income Tax, Range-2, Sanjay Place, Agra. -Respondents (By Advocate Shri V.P. Uppal) ORDER Mr. Shanker Raju, Member (J):
Applicant, since superannuated as Lower Division Clerk (LDC) from Income Tax Department, by virtue of this OA has assailed a minor penalty inflicted pursuant to a major penalty proceedings vide order dated 10.1.2007. Also assailed are appellate order dated 23.3.2007 and order passed in revision on 2.11.2007, whereby the punishment has been upheld.
2. While working as LDC, applicant presented four cash memos from one Vinod Medical Store, which, on enquiry by an Inspector at preliminary level, were found to be false and not genuine. During the course of enquiry, apart from statements of the PE officer but also enquiry made from Drug Distributors have found that the cash memos were issued with wrong batch numbers. However, neither the Inspector who submitted his report on 22.11.2004 nor the employees of Aristo Pharmaceuticals and M/s Drug House were examined. The enquiry officer (EO) though has not upheld the charges against the applicant and has not proved them fully in its enquiry report, yet a disagreement arrived at without assigning tentative reasons, while fully proving the charges, disagreed with the findings of the EO and on representation when penalty was imposed culminates into affirmation by the impugned orders, gives rise to the present OA.
3. Learned counsel of applicant Shri B.S. Mainee took legal plea of non-compliance of Rule 14 (18) of the CCS (CCA) Rules, 1965 by contending that applicant has not been cross-examined by the EO as to the evidence brought against him. One of the grounds raised is that the disagreement arrived at first of all is not a tentative one, as a final view of the matter has been taken and the opportunity given is also a post-decisional hearing. It is also contended that there are no grounds, worth appreciating in law, to disagree with the findings.
4. Learned counsel states that the PE officer Inspector, Income Tax, whose report was heavily relied upon by the EO and by the disciplinary authority (DA), was not summoned in the enquiry and an opportunity to cross-examine has been denied to applicant, which is denial of reasonable opportunity in violation of principles of natural justice.
5. Learned counsel would also contend that the Pharma companies whose letters have been relied upon despite no witness cited in the enquiry, yet none of the persons from these Drug companies have been called to enable applicant to effectively cross-examine and reliance on these reports, without their being validly proved, is not in consonance with law.
6. On the other hand, learned counsel of respondents vehemently opposed the contentions and Shri V.P. Uppal states that applicants misconduct was amply proved from the evidence brought on record. All the procedures under CCS (CCA) Rules 1965 have been followed. The orders passed are reasoned and as the applicant submitted forged bills his integrity is doubtful and taking a lenient view in the wake of his retirement on superannuation he has been let off with a minor penalty. It is also stated that the letters from the manufacturing companies were received and there was no reason to get them authenticated by the authorities.
7. We have carefully considered the rival contentions of the parties and perused the material on record. In judicial review of the disciplinary proceedings, as held by the Apex Court in Bank of India v. Degala Suryanarayana, 1999 SCC (L&S) 1036, though we are not competent to substitute our own view, yet the decision-making process and the prejudice caused on violation of procedural rules is subjected to judicial review. The Apex Court in Ministry of Finance v. S.B. Ramesh, (1998) 3 SCC 227, it is ruled by the Apex Court that when a document is tendered in the enquiry, non-summoning of the maker of the document with an effective opportunity to the delinquent to cross-examine amounts to denial of reasonable opportunity. It is further held that non-examination of delinquent under Rule 14 (18) of the CCS (CCA) Rules, 1965 is a serious infirmity in the course of enquiry. As we find that the EO relied upon the PE report by the DA and, yet the PE officer was not summoned in the enquiry. This has prejudiced the applicants right of effective cross-examination and to present his defence in the enquiry in violation of principles of natural justice.
8. Insofar as letters from manufacturers are concerned, though distributors have sent letters but their authenticity has not been established, as the persons from those companies were not summoned with a view to afford right of cross-examination to the applicant. This has prejudiced applicant and deprived him of a valid defence to be raised through cross-examination.
9. Apart from the above, the DA relied upon the reports vehemently while disagreeing and also taking a final view of the matter.
10. Though the power to disagree is the prerogative of the DA, yet the disagreement arrived at in the present case does not show the tentativeness and rather on fully establishing the charges on disagreement by the DA, a final view of the matter has been taken. In such an event, affording an opportunity to the applicant with a pre-determined view, amounts to taking a final stock of the matter, for which the opportunity granted is only a mere formality and a post-decisional hearing, which in turn, has denied applicant a reasonable opportunity to show cause in violation of the principles of natural justice.
11. Though several other grounds have been raised, yet on violation of Rule 14 (18) of the CCS (CCA) Rules, 1965, where it is incumbent upon the enquiring authority to put to the delinquent all the circumstances brought against him by way of cross-examination having not been followed, as it does not transpire from their reply and from the enquiry report, there is certainly violation of Rule 14 (18) of the Rules ibid, which has prejudiced the applicant and has been held to be illegal by the Apex Court in S.B. Ramesh (supra).
12. On the aforesaid count and with the above reasons, the enquiry and the pursuant orders passed are vitiated. OA is resultantly allowed. Impugned orders are set aside. Respondents are directed to accord all consequential benefits of withhold increments, if any, with arrears and also in case of any change in computation of retiral benefits, the same shall be revised and paid to the applicant with arrears, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
San.