Central Administrative Tribunal - Kolkata
Debasish Bandopadhyay vs Corporate Affairs on 1 August, 2023
d) An order directing the respondent authorities to quash and set aside the Show Cause Notices dated 23.01.2023 and 24.01.2023;
e) An order directing the official respondents to produce/cause production of all relevant documents;
f) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."
The applicant has also prayed for an interim relief under Para 9 of the O.A. which reads as under:-
"(a) Restraining the respondents not to proceed with the enquiry in connection with the Charge Memorandum dated 30.01.2023 bearing No.C-
14015/1/2022-Vigilance-MCA under Rule 14 of CCS (CCA) Rules, 1965 issued by Paras Sarwaiya, Under Secretary to Government of India;
(b) To stay the Disciplinary Proceeding in terms of the major penalty charge sheet dated 30.01.2023 till disposal of the original application. "
2. Learned Counsel Mr. S.K. Datta along with advocate Mr. B. Chatterjee and Mr. A.K. Khan appears on behalf of the applicant and submits as under:-
Waa a Fs y * 2.1 That the charges levelled against the applicant are related to the alleged incident of 2007-2010 whereas the charge memorandum has been issued on 30.01.2023 ( Annexure A/5). Ld. Counsel argues that while applicant was working as Regional Director, Eastern Region, Ministry of Corporate Affairs, Government of India, Kolkata, he was served with the impugned charge memorandum just before one day of his retirement with a view to harass him.
It is submitted that the respondents have issued show cause notice vide memorandum dated 23.01.2023 (Annexure A/1) wherein by referring to various provisions of Companies Act, 1956, it was alleged against the applicant that while the applicant was working as ROC, he had approved E ye Forms/Form-10 in violation of provisions of Companies Act, 1956 and rules thereunder. Accordingly he was show caused as to why disciplinary action shall not be initiated against him for the lapses and was directed to submit his reply within three days.
2.2 Before the applicant submits his representation/reply to the said show cause as per the time limit prescribed, the respondents issued another show cause vide memorandum dated 24.01.2023 (Annexure A/3) wherein the applicant is once again called upon to submit his explanation with regard to issuance of "E Form" while he was working as Registrar of Companies (ROC), Kolkata.
2.3 In response to the first show cause notice dated 23.03.2023, the applicant had submitted his reply on 25.01.2023 and for the second notice he filed his reply on 27.01.2023 (Annexure A/4) before the competent authority. In the said reply/representations, the applicant has explained in detail about his innocence by referring the statutory procedure for sanctioning of Form No.- 10 under the Companies Act and the Rules. It was also brought to the knowledge of the competent authority that at the relevant time i.e. in the year 2007-10 there was no mandate of attaching Valuation Certificate with the Form-10 under the extant Companies Act and Rules, hence there was no occasion to verify any such valuation certificate/market value while considering the Form No.10.
It is submitted that since the respondents have not considered the aforesaid submissions of the applicant and has decided to initiate the disciplinary proceeding against the applicant vide impugned charge Gl iy memorandum, the applicant has no other alternate remedy except to approach this Tribunal.
2.4 Ld. counsel for the applicant submits that the charge sheet has been issued on 30.01.2023 through email in respect of the Form 10 issued by the applicant while working as ROC in the year 2007-2010, i.e. Forms issued 12- 16 years back. Learned Counsel submits that the Hon'ble Apex Court and High Court deprecated the belated departmental action against the Government servant in various judicial pronouncements. The respondents have totally ignored the same as well as the instructions/guidelines issued time and again by the DOP&T with regard to initiate the departmental enquiry. In this regard, Ld. counsel for the applicant vehemently argued that the Hon'ble Apex Court in the case of State of A.P. Vs. N. Radhakrishnan reported in (1998)4 SCC 154 held that "if the delay in initiation of disciplinary NZ proceeding is unexplained prejudiced to the delinquent employee is writ 8 large on the face of it. Delay causes prejudice to the charged officer 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."
It is submitted that the delay caused in initiating the disciplinary proceeding is abnormal and there is no explanation whatsoever in the charge memorandum for such delay. In addition, Learned Counsel by relying upon the judgment passed by Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh and Another reported in AIR 1990 SC 1308 submits that in the said judgment the Hon'ble Apex Court while considering the delay of long 12 years for initiation of disciplinary proceeding against the gf Government servant as well as considering the fact that there was no satisfactory explanation for inordinate delay in issuing the charge memorandum held that it would be unfair to permit the departmental enquiry to be proceeded with. In the present case, the alleged irregularity which are the subject matter of the enquiry have taken place between the year 2007-2010 and as such, there is no explanation whatsoever stated in the charge memorandun, for such inordinate delay in initiating the disciplinary proceeding against the applicant herein. Therefore, the impugned charge memorandum required to be quashed and set aside.
2.5 According to Learned Counsel, before issuance of the charge memorandum to a Group-A officer, the requisite provision prescribed for necessary approval to initiate disciplinary proceeding and also specific approval on draft charge of the memorandum. In the present case, the respondents tear ON have not followed the said procedure. The competent authority has not ey approved the decision to initiate the proceeding against the applicant, nor the draft charge memorandum was ever placed before the competent 2 reund MS authority for approval. The information sought by the applicant under RTI with respect to placement of draft charge memorandum before the competent authority and their approval thereon have not been provided/supplied to the applicant. The impugned charge memorandum has been issued without following the procedure of requisite approval of the draft charge sheet, hence the impugned charge memorandum is void ab initio.
2.6 He submits that along with the charge memorandum the relied upon 2.7 documents (RUDs) have not been supplied to the applicant. Said fact has been brought to the knowledge of the Disciplinary Authority while responding to tne charge memorandum in_ his representation dated 03.02.2023 as well as the subsequent comprehensive representation dated 10.02.2023 (Annexure A/6 and A/7). Therefore, the disciplinary proceeding initiated against the applicant in violation of the principles of natural justice and on the sole ground the proceeding vitiated.
According to Learned Counsel for the applicant, the charges leveled against the applicant are vague in nature and the same is required to be quashed and set aside. In this regard, it has been submitted that in the article of charge No.| it has been alleged that while the applicant was functioning as Registrar of Companies (ROC), Kolkata during the period from 01.11.2007 to 31.03.2017, he committed misconduct in approving From-10 for creation of charge filed by the company as no valuation certificate was attached to the E Form. In this regard it is vehemently argued that though the respondents in reply to the said charge submitted on 10.02.2023 and had brought to the knowledge of the Disciplinary Authority that there was no mandate for attaching Valuation Certificate with the Form-10 in the extant Companies Act and Rule. It is stated in the said reply that nothing was prescribed under Section 128 of Companies Act, 1956 or in any Rules under the Act or in any Manual or SOP or in the Instruction Kit for attaching Valuation Certificate along with Form No.10. Hence there was no scope for checking Valuation 'i report/market value etc. It is also stated by the applicant that which is not provided in the rules cannot be imposed on stakeholder by ROC. The ROC cannot supplant the legislature to cure any absence of Rule. Accordingly he requested the competent authority to accept his explanation and drop the proceeding. However, same has not been considered and impugned charge memorandum was issued against him.
2.8 Ld. counsel for the applicant submits that in absence of any statutory provision prescribed to annex or attach Valuation Certificate or details of market value along with Form No.10, the Government officer cannot be held liable to do which is not permissible under the law. It is submitted that the applicant has discharged his duties in accordance with the rules in vogue, The Learned counsel would argue that the charges leveled against the applicant are vague in nature and not constituted any misconduct as alleged.
He has invited the attention of this Tribunal to the statement of article of charges as well as statement of imputation of misconduct supplied to the applicant and would argue that the charges are not specific and definite and the same are vague in nature. In this regard it is submitted that since there was no provision for attaching any Valuation Certificate with Form No.10, there cannot be any irregularity in approval or sanction of such form without 'Valuation Certificate or market value. Therefore, the charges leveled against the applicant are absolutely vague and cannot constitute any misconduct on the part of the applicant herein. By relying upon the judgment of Hon'ble Supreme Court in case of Union of india & Others Vs. Gyan Chand Chattar fe [(2009)12 SCC 78] he submits that the charge shouid be specific, definite and no enquiry can be sustained on vague charges.
2.10 Further it is submitted that there was no vigilance report against the applicant, as such, on receipt of the Vigilance Clearance, the applicant was allowed to retire from service on attaining the age of superannuation. It is stated that there is no charge of corruption and there being no loss to Government, the proceeding should not have been initiated under the provisions of Rule 14 of CCS (CCA) Rules.
2.11 Ld. Counsel would argue that the respondents have violated the instructions contained in Circular No.19/9/21 dated 06.10.2021 of CVC by not following the prescribed time limit for obtaining the first stage advice. It is submitted that the respondents failed to consider the instructions contained in the Minister's letter No.17/194/2012-CL.V dated 03.10.2012 wherein it was admitted that there was absence of regulations regarding non-convertible debentures issued by unlisted companies. Such absence of regulations left ROCs to sanction the Form No.E-10. Hence the extant legal position was that a charge was deemed registered when its particulars are finding with ROC. Therefore, the charges leveled against the applicant are absolutely vague in nature and cannot sustain. Learned Counsel for the applicant submits that the Ministry issued vigilance clearance to the applicant on 01.12.2022 inspite of having the report of DGCOA dated 30.12.2021. Nothing was stated in the vigilance clearance that any enquiry was going on regarding Form-10. Then suddenly on 23.01.2023 show cause notice was issued for alleged approval of Form-10 that too the same was issued 12-16 years ago and the charge sheet served upon the applicant on the date of his Sp retirement on superannuation on 31.01.2023. The said unexplained
- immensely long time the applicant becomes highly prejudiced with such belated action against the applicant. Therefore, the impugned charge memorandum is bad in law. The respondents are required to restrain to continue with the enquiry in respect of the impugned charge memorandum during the pendency of this O.A. Ld. Counsel would also argue that in fact the applicant had taken action against some of the companies which were referred in the charge memorandum for violation of provisions of the Companies Act. The decision of the applicant was challenged by the said companies before the Hon'ble High Court and no stay order was granted, therefore, the respondents should have considered all these aspects before issuance of charge memorandum against the applicant.
5. On receipt of the notice issued by this Tribunal, Mr. R. Halder, Counsel for \ the respondents appear and submits that It is not correct on the part of the applicant that before issuance of the charge memorandum prior permission of the Hon'ble Minister was not obtained. It is stated that in fact, prior permission of the Hon'ble Minister being the Disciplinary Authority in this case was obtained on 30.01.2023 before issue of charge memorandum dated 30.01.2023. In this regard he placed on record the copy of the letter dated 26.07.2023 addressed to him by Joint Director for the Office of Regional Director (ER), Kolkata. He submits that before initiating the disciplinary proceeding against the applicant the competent authority had issued show cause notice to the applicant and he was granted due opportunity to explain his version with respect to grant/sanction of Form-10 while he was working as ROC which was found issued in violation of ji wnistray> oi 'bey WW i Contrary ID ING My %) CP feun> 10 provision of the Companies Act and Rules thereunder. Since his explanation was not satisfactory, the Disciplinary Authority decided to initiate disciplinary proceeding and had issued charge sheet on 30.01.2023.
He submits that the applicant was granted opportunity to inspect the documents. However, as the representation submitted by the applicant in response to the charge memorandum was not found satisfactory, the Disciplinary Authority decided to conduct departmental enquiry against the applicant with respect to the charges leveled against him under the impugned charge memorandum. He submits that the issue raised by the applicant with regard to non-adherence to the procedure before issuance of the charge memorandum and the maintainability of the same are as such not tenable. The judgments relied upon by the counse! for the applicant to justify his claim that charge memorandum has been issued at belated stage and the charges are vague are also not applicable to the present case.
He submits that Disciplinary Authority has decided to conduct departmental enquiry against the applicant and the date of enquiry has been fixed on 09.08.2023. He requests for some time to file reply to the O.A.
6. Having considered the submissions of the Learned Counsel for both sides arid also on a perusal of the materials on record, it is noticed that the charge memorandum dated 30.01.2023 came to be served upon through email on 31.01.2023 i.e. on the date of his superannuation. We find that no explanation hes been given by the respondents in the charge memorandum for initiation of disciplinary proceeding against the applicant after 12-16 years with respect to the incidence of issuance of or approval of the forms No.10 by the applicant while working as ROC in the year 2007-2010. It is also not in dispute that the applicant a 11 has been allowed to be superannuated based on vigilance clearance report dated 01.12.2022. The applicant has also raised various issues that though there was no provision of attaching Valuation Certificate with Form-10 at the relevant time it was not open for the him while working as ROC to insist upon it or had any scope to verify any Valuation Certificate in absence of the same. According to the applicant, since he has discharged his duties in accordance with law there was no occasion to allege any irregularity against him and in the light of settled principle of law to maintain any charge sheet against quasi-judicial authority as well as the assessing authority more has to be alleged than a mere mistake of law, eg. in the nature of some extraneous consideration- influencing the quasi-judicial order or the order of final approval of the claim. According to the applicant, there is no charge of any corruption or doubtful integrity and the charge sheet does not constitute any misconduct on the part of the applicant herein.
At this stage we cannot go into the merit of charges. However, it is a case vA at Str, ath Ke ° ra Lop Or we, 57 eaiq woe eund?» of the applicant that the charge memorandum has been issued without following Gunwa;
a ' due procedure and charges leveled against him are vague and does not constitute any misconduct. Such submission of the applicant and to ascertain whether the decision making process in respect to the impugned charge memorandum is in consonance with the mandate of CCS (CCA) Rules, 1965, needs to be adjudicated in the present OA since this Tribunal are concerned with correct decision making process with respect to the impugned order, this Tribunal needs explanation/reply of the respondents. Considering the material on record and discussion hereinabove, we are of the considered view that the applicant has made out a prima facie case for grant of ad-interim relief. Accordingly by way of ad-interim relief, we direct the respondents not to proceed with the pe O . . 12, _ departmental enquiry in respect to the charge memorandum dated 30.01.2023 till the next date of listing.
7. The respondents are further directed to file reply to the O.A. within 3 weeks with an advanced copy of the same to the applicant. In the meantime, it is open for the respondents to file an application for vacating ad interim relief if so desireq List on 21.08.2023.
~ NY a (Suchitt Kamar Das) (Jayesh V. Bhairavia) Administrative Member ; . Administrative Member Sb AY SS S hb S "my