Central Administrative Tribunal - Delhi
Arun Shah vs Union Of India Through on 31 October, 2013
Central Administrative Tribunal Principal Bench O.A. No.3232/2011 Order reserved on: 13.08.2013 Order pronounced on: 31.10.2013 Honble Mr. V. Ajay Kumar, Member (J) Honble Mr. V.N. Gaur, Member (A) Arun Shah, S/o late Shri L.R. Shah, K-15/B Saket, New Delhi-110017. -Applicant (By Advocate Ms. Vibha Dutt Makhija) -Versus- 1. Union of India through The Chairman, Executive Committee, CAPART, Ministry of Rural Development, Krishi Bhawan, New Delhi-110 001. 2. Council for Advancement of Peoples Action and Rural Technology (CAPART), through Director General, Zone V A, India Habitat Centre, Lodhi Road, New Delhi-110 003. -Respondents (By Advocate Shri S.K. Rungta with Shri Prashant Singh) O R D E R Mr. V.N. Gaur, Member (A):
The applicant was posted as a Member Convener, Regional Office of Council for Advancement of Peoples Action and Rural Technology (CAPART) at Patna during the period from March, 2001 to June 2003. Disciplinary proceedings were initiated against him vide memorandum dated 07.03.2008 in respect of his actions when he was posted at Patna. On the conclusion of the disciplinary proceedings a penalty of compulsory retirement was imposed on the applicant vide letter dated 24.11.2010 by the appellate authority. The appeal of the applicant has also been rejected vide letter dated 29.07.2011. The present OA has been filed by the applicant with a prayer to set aside the orders of the disciplinary authority (DA) and appellate authority (AA) dated 24.11.2010 and 29.07.2011 respectively and to declare the penalty of compulsory retirement as illegal and to declare the enquiry proceedings as illegal and against the law of natural justice.
2. In brief, the facts of the case are that the applicant was a Deputy Director (Marketing) rank officer posted as Member Convener, Regional Office of the CAPART at Patna during the period March 2001 to June, 2003. The memorandum of charge was issued to the applicant on 07.03.2008, with the following charge:
Shri Arun Shah while functioning as the then Member Convener in CAPART Regional Committee, Patna, during the period from March 2001 to June 2003 failed to maintain absolute integrity, honesty and devotion to duty in as much as he accepted uncertified forged copies of mandatory documents like bank pass book of SB a/c No.9325 with PNB, Patna, Audit reports and Annuals reports for three years, ITR submitted by VO on 27-10-2002, list of Executive Committee and minutes of Gram Shabha meetings etc. submitted by the Organisation namely Baidyanath Mahila Sanskriti Manch, Sriniketan, Machhauatoli, Patna, Bihar and got the sanction of project on 18.12.2002 from the Regional Committee on the same day against the guidelines of CAPART which subsequently resulted into loss to CAPART to the tune of Rs.1,70,000/-
Thus, the said Shri Arun Shah functioned unbecoming of a CAPART employee and contravened Rule-3 (i), (ii) and (iii) of CCS (Conduct) Rules 1964.
3. The applicant denied the charge whereafter the DA appointed an inquiry authority (IA) vide order dated 25.08.2008. The IA split the above mentioned charge into two components as follows:
a. Acceptance of uncertified copies of mandatory documents i.e. Bank Pass Book of S.B. Account No.9325, Audit Reprot and Annual Reprot for three years, ITR, list of Executive Committee and minutes of meeting, etc. by Shri Arun Shah which is against the guidelines of CAPART; and b. Doubt was there in the mind of Shri Arun Shah about the genuineness of documents but he did not exercise enough caution for the same and got the project sanctioned by placing it before the Regional Committee with his recommendations which resulted in a loss of Rs.1,70,000/- to CAPART.
4. After completing the enquiry proceedings the IA submitted his report concluding that the allegation of misconduct (a) remained unsubstantiated while the allegation of misconduct (b) stood established. As a result the whole article of charge stood partly disproved and partly proved. A copy of the report of the IA was sent to the applicant vide letter dated 30.03.2010 giving him an opportunity to submit his representation on the report. The applicant submitted his representation on 15.04.2010. The DA vide letter dated 04.08.2010 sought further clarification as to why the services of three Research Officers posted under him were not utilized. After considering the reply given by the applicant on 11.08.2010 and the earlier representation, the DA disagreed with the finding of the IA in respect of disproved part of the charge and treated the original charge as proved. On that basis the DA imposed a penalty of compulsory retirement with effect from 24.11.2010 vide order dated 24.11.2011. The applicant preferred an appeal against the order of the DA (respondent no.2) vide letter dated 01.12.2010. In view of the delay in the disposal of his appeal the applicant filed OA-11/2011 which was disposed of by this Tribunal on the ground of being pre-mature and with a direction to the respondents to decide the appeal within a period of six weeks. Subsequently, the AA (respondent no.1) passed an order on 28.07.2011, rejecting the appeal filed by the applicant.
5. Learned counsel for the applicant in his submission pointed out grave irregularities and violation of principles of natural justice in conducting the disciplinary proceedings. It was alleged that the proceedings were conducted on the basis of the photo copies of the documents relied upon and the original files were never shown to the applicant. The recommendation given by the Central Vigilance Commission (CVC) was fabricated as the CAPART guidelines were mentioned as one of the listed documents while it was never a part of listed document. The AA failed to appreciate the evidence on record and merely repeated the findings of the DA while upholding the punishment imposed on the applicant and observing that this appears to be a blatant case of corruption. There was no charge of corruption against the applicant in this case. The learned counsel also drew our attention to the fact that the enquiry proceedings against the applicant were started on the basis of the recommendations of the CBI and the same were bad in law since the findings and recommendations of the CBI cannot be the basis and evidence of proving the charge in an independent disciplinary enquiry. The applicant accepted uncertified copies of certain documents for processing the project proposal. The learned counsel stated that the guidelines did not stipulate acceptance of certified copies in respect of mandatory documents. The clarification sought by the DA vide letter dated 04.08.2010 would also amount to addition of another charge outside the memorandum of charge issued in the disciplinary proceedings and as a result it vitiated the entire process. According to the CAPART circular dated 11.02.1999 All RA/YP/Asst/UDC/ LDC will work as desk officers with respect to the files allotted to them by the HOD/MC. They will put up these files directly to HOD/MC and there shall be no intermediate levels. Learned counsel pointed out that the project executed by the NGO was evaluated mid-term in March, 2004, i.e., 09 months after the applicant ceased to be the Member Convener at Patna and the work was found to be satisfactory. The second evaluation of the same work in August-September, 2005, which reported the work to be defective and not up to the mark, was against the CAPART rules and, therefore, illegal. Besides this, the unfinished civil work, if evaluated after 02 years, was bound to show deterioration in the condition. The applicant, it was stressed, was not the approving authority for the release of the funds. The whole process involved several functionaries from the stage of receiving the proposal from NGOs like scrutinizing, certifying, verifying in the field, approving for inclusion in the Agenda for the Regional Committee and after approval in the process of release of payment. However, the department singled out the applicant for disciplinary proceedings with mala fide intention. This is reflected by the quantum of penalty also as the same is grossly disproportionate to the charge inflicted on the applicant. Therefore, the applicant was entitled to the reliefs, as prayed for.
6. The learned counsel for the applicant relied on the following case laws:
i) Union of India v. H.C. Goel, AIR 1964 SC 364 where it was held that the High Court in dealing with a writ petition filed by a Government office who has been dismissed from Government Service is entitled to hold that the conclusion reached by the Government in regard to his misconduct is not supported by any evidence at all.
ii) Union of India & Others v. Mohd. Ramzan Khan, (1991) 1 SCC 588 wherein the Honble Apex Court has held that delinquent employee is entitled to copy of enquiry report submitted by Inquiry Officer to disciplinary authority and to make representation against it.
iii) Kumaon Mandal Vikas Nigam Ltd. V. Girja Shankar Pant and others, (2001) 1 SCC 182 wherein it was held by the Honble Apex Court that where financial and administrative powers were withdrawn from the respondent [then General Manager (Tourism)], show-cause notice was issued to him and the same was subsequently treated as charge-sheet, documents were not supplied to him despite requests and even inspection of some of the documents was denied to him and without affording an opportunity of hearing the enquiry officer gave the finding that the charges stood proved, held, High Court rightly set aside the consequential dismissal order on the ground that there was miscarriage of justice.
iv) Sher Bahadur v. Union of India & others, (2002) 7 SCC 142 wherein it was held that the evidence and proof in the departmental inquiry must link the charged officer with the alleged misconduct.
v) Union of India and others v. Gyan Chand Chattar, (2009) 12 SCC 78 wherein it has been held that in a departmental inquiry the charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges.
vi) Punjab National Bank & others v. K.K. Verma, (2010) 13 SCC 494 wherein it has been held that respondent ought to have been given opportunity to challenge adverse finding of disciplinary authority where it differed from enquiry officer to establish his innocence.
vii) TA no.70/2010 O.P. Sharma v. Union of India & others, decided on 02.02.2011 (CAT, PB), wherein the Tribunal has held that the inability of the respondents to supply the crucial documents to the applicant in the inquiry is a fatal flaw.
viii) TA-1446/2009 B.R. Suman v. Union of India & others, decided on 06.05.2011 (CAT, PB) wherein the Tribunal has held that the charges for which punishment has been meted out to the applicant have not been clearly mentioned in the Articles of Charge read with the imputation of misconduct in support of the articles of charge.
ix) M.V. Bijlani v. Union of India & others, (2006) 5 SCC 88 where the Honble Supreme Court has held that though proof beyond all reasonable doubt as required in criminal trial is not necessary in departmental proceedings, charges in said proceedings has to be proved by preponderance of probability.
x) S.R. Tewari v. Union of India & others, (2013) 6 SCC 602, wherein it has been held by the Honble Supreme Court that judicial review is not akin to adjudication on merit by reappreciating evidence as an appellate authority.
xi) B.C. Chaturvedi v. Union of India and others, (1995) 6 SCC 749 wherein it has been held by the Honble Supreme Court that the High Court/Tribunal in exercise of review power cannot normally interfere with the punishment imposed by disciplinary/appellate authority, except where it shocks the judicial conscience in which case it can mould the relief either by directing the authority to reconsider the punishment/penalty imposed or in exceptional cases by itself imposing an appropriate punishment recording cogent reasons.
xii) Pritam Singh v. Union of India and others, (2005) 9 SCC 748 where the Honble Apex Court held that judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is arbitrary or mala fide or if it is based on no evidence.
xiii) Lav Nigam v. Chairman & M.D, ITI Ltd. and another, (2006) 9 SCC 440 wherein it has been held that disciplinary authority is bound to give a notice setting out his tentative conclusions to the charged employee. It is only after hearing the said employee that the disciplinary authority can arrive at a final finding of guilt.
xiv) U.P. State Road Transport Corpn. and others v. Mahesh Kumar Mishra and others, (2000) 3 SCC 450, wherein the Honble Supreme Court held that sufficient evidence though available, not collected and the misconduct not a serious one interference by High Court on quantum of punishment, if on facts, justified.
7. The Learned counsel of the respondents, at the outset, denied the allegation that there were violations of procedure in conducting the enquiry proceedings or there was any infringement of the principles of natural justice. He submitted that the record would show that the proceedings were conducted strictly in accordance with the laid down procedure and the applicant was given full opportunity to defend himself at every stage. Denying that there was any bifurcation of the charge by the IA, the learned counsel explained that the charge remained one only as the concluding part of the enquiry report would show that only for the convenience sake it was broken into two components. In substance there was no deviation from the original charge. The DA sought advice of the CVC in accordance with the CCS (CCA) Rules and the CVC also agreed with the opinion of the DA. He denied that the evidence adduced during the enquiry showed that none of the documents mentioned in the charge-sheet were mandatory documents. It was submitted that the investigation was conducted by the CBI Anti-Corruption Branch, Patna, which after a thorough investigation reported that the applicant without keeping in mind the guidelines of the CAPART committed gross negligence by accepting the uncertified copies of the forged documents, which resulted in loss to the organization to the tune of Rs.1,70,000/-. It was pointed out that it was the applicant himself who had asked the concerned voluntary organization to submit attested copies of the documents on the basis of the CAPART guidelines but ultimately accepted uncertified copies of those documents which were found to be forged. The documents such as pan card, ITR etc. given to the applicant by the voluntary organization have been stated to be the mandatory documents in the charge-sheet also.
8. With regard to the allegation that the original files/documents were never shown to him, the learned counsel pointed out that the originals of the documents relied upon by the Presenting Officer were with the CBI as a part of the record of the case filed by the CBI in the Court of Special Judge, CBI, Patna. Moreover, the applicant never raised such a grievance about the authenticity of the documents during the enquiry proceedings. The learned counsel referring to the Counter filed by the respondents, wherein CAPART guidelines have been annexed, stated that these guidelines clearly stipulate that the mandatory documents were required to be certified by the gazetted officer/notary before acceptance. The applicant failed in his duties to verify those documents once again whether they were certified in the required manner or not before accepting them. It was particularly more important as the applicant himself had insisted on production of those documents when the file was put up to him in the first instance. The applicant has no explanation as to why he accepted uncertified documents as a part of the proposal when it was put up to him second time when he himself had objected to it earlier. Denying that there was any mala fide or mischief behind the statement that CAPART guidelines were part of the list of documents, learned counsel submitted that the guidelines were part of the investigation by the CBI which in any case were available with the applicant being a Convener of the Committee. Referring to Para (I) on page 15 of the Counter, he denied that it was ever mentioned in the communication to CVC that CAPART guidelines were part of the list of documents, as alleged. Learned counsel further stated that the disciplinary proceedings were initiated against the applicant on the basis of the recommendations of the CBI, who had enquired into the criminal case of forgery, cheating etc. by certain voluntary organization and the action was recommended by the CBI only in respect of the Member Convener and not against any other person as CBI did not find them guilty. While concluding his submission the learned counsel emphasized that the role of this Tribunal is limited in the cases relating to disciplinary proceedings as the law laid down by the Honble Apex Court in several cases is that the Tribunal/High Courts cannot be a substitute of the enquiry authority or competent to decide the quantum of penalty.
9. We have considered the rival contentions and the material placed on record. This case started from a proposal submitted by an NGO for construction of a fuel efficient crematorium for which CAPART has a scheme of funding. This funding is done in three stages subject to certain verification and evaluation at every stage. An amount of Rs.1,70,000/- was released to the NGO as the first installment and its work was evaluated as satisfactory by an evaluation team in March, 2004. Later, another team re-evaluated the work done at this site in August/September 2005 and found the work defective and not upto the mark. The CBI had investigated a case where the concerned NGO was involved in an act of fraud and cheating by submitting forged documents to get the project sanctioned by the CAPART Regional Office, Patna. After investigation CBI filed a case in the Court of Special Judge, CBI, Patna. The charge-sheet submitted by the CBI (dated 25.03.2007, copy annexed to the Additional Affidavit filed by the applicant) does not mention the name of the applicant while naming 05 accused persons, four of whom are connected with the NGO and one of them is a Facilitator-cum-Evaluator of CAPART working under the applicant at that time. In respect of the applicant the CBI has submitted a recommendation to the Department to initiate major penalty proceedings against the applicant for violating the CAPART guidelines by not insisting on acceptance of certified copies of the mandatory documents. It is obvious that the CBI did not have enough evidence to charge the applicant under the Prevention of Corruption Act or any of the IPC offences on the basis of the investigation conducted by them. They only found certain procedural flaws for which the applicant was named by the CBI for departmental action. The distinction between the police investigation and a departmental enquiry even if they relate to the same incident is well established as the purpose of the two enquiries is different. The police inquiry or investigation is conducted with a view to identify the persons involved in the criminal activity and collect evidence for prosecuting them for punishment under the relevant criminal laws. The departmental enquiry in an incident, on the other hand, concerns itself to determine as to what led to the occurrence of a particular event; whether there are deficiencies in the system, rules or procedures, which require amendment and fortification to prevent recurrence of such an event in future; to identify the lapses on the part of individuals involved in that incident, and punish them through departmental proceedings. In this case that there was no departmental enquiry conducted in the incident to identify gaps and lapses and fix the responsibility on the individuals before starting the disciplinary proceedings. The department accepted the CBI recommendation in respect of the applicant and started the disciplinary proceedings. Thus the department failed in its duty to first determine full ramifications of the violations of its rules and guidelines which might not fall within the scope of CBI investigations, identify systemic deficiencies and take remedial measures, identify all those who were responsible for violation of the departmental procedures which led to the alleged loss of Rs.1,70,000/- to the CAPART and initiate action against them. The respondents initiated departmental action only against the applicant as suggested by the CBI.
10. Before we proceed further, we would like to refer to the boundaries laid down by the Honble Apex Court through a catena of judgments with regard to judicial review of disciplinary proceedings. It is trite that while exercising powers of judicial review, court does not become an appellate forum. This has been reiterated by the Apex Court often. In Raibareli Kshetriya Gramin Bank v Bhola Nath Singh [1997 SCC (L&S) 80], the Honble Supreme Court held that Tribunal cannot sit as an appellate Court and reappreciate the findings and take a different view from departmental authorities.
11. In Union of India v Tulsiram Patel [AIR 1985 SC 1416], the Constitution Bench clearly said that if the charged employee is dissatisfied with the result of the appeal he has the remedy of judicial review, which is left open to him. He may challenge the entire proceedings showing that there was violation of natural justice.
12. The concept of natural justice has been further elaborated in K.I. Shephard v. Union of India [1987 SCC (L&S) 438], the Court held (para 12):
it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representation on their own behalf, (b) or to appear at a hearing or enquiry (if one is held), and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.
13. In this case the main grounds taken by the applicant in support of his case are as follows:
i) the disciplinary proceedings were conducted on the basis of photo copies and original files were never shown to the applicant.
ii) The CAPART guidelines even though relied upon was not mentioned in the list of documents given to IA. It was also wrongly conveyed to CVC that this document was one of the listed documents.
iii) The respondents vide letter dated 04.08.2010 introduced another charge of not having utilized the services of Research Officers posted under the applicant thus vitiated the disciplinary proceedings.
iv) The documents whose unattested photo copies were accepted by the applicant were not mandatory documents, as envisaged under the CAPART rules.
v) The applicant as a Member (Convener) was not the sanctioning authority of the Project and, therefore, cannot be held responsible.
vi) The charge that there was a financial loss of Rs.1,70,000/- to CAPART was not proved.
vii) The imposition of the penalty of compulsory retirement, which amounts to dismissal from service since CAPART does not have provision for pension was disproportionately high.
14. We have considered these grounds and will now examine them seriatim. We do not find force in the submission that the disciplinary proceedings were vitiated because the original papers/files were not shown to the applicant. It is observed that at no point in time applicant had questioned the veracity of those documents and no prejudice has been claimed to have been caused because of this reason except as a procedural flaw. The Honble Apex Court judgments in the cases of Mohd. Ramzan Khan and in Girja Shankar Pant (supra) are, therefore, not relevant in this case.
15. Much reliance has been placed in the submissions of the applicant on the fact that CAPART guidelines were not mentioned in the list of documents submitted to the IA. From the documents on record it is seen that the statement of the applicant appears to be true. The IA had also recorded in his report that the Presenting Officer had not produced any documentary or oral evidence to establish that the charged officer has contravened the guideline/rule of CAPART while accepting uncertified copies of the documents from the organization and, therefore, the allegation of misconduct (i) remains unsubstantiated. The DA on the other hand has not agreed with this finding of the IA on the ground that acceptance of uncertified copies of documents were in contravention of the CAPART guidelines. The DA has also stated that Shri Arun Shah accepted unattested copies of documents from the VO in spite of the fact that Shri Arun Shah himself initially asked the VO to submit certified copies of documents from Gazetted officer/Notary but he did not care to ensure it and later compromised with the VO. The respondents have filed a copy of the CAPART Guidelines for Advancement of Rural Technology Scheme, which is marked Reprint: November, 2003. The instruction for filling up organization profile contained in these guidelines specifies that the documents that are to be enclosed by the applicant under that Scheme. A note under that list of documents states in italics that All photocopies of documents should be attested by Gazetted Officer/Notary. There is a further clarification on the same page that Please Note: All proposed changes are in italics. Thus, it is not clear whether insistence on submission of the attested copies of the mandatory documents was still a proposal or had become a part of the guidelines. It is relevant in the context to note that the incident of alleged fraud took place in December, 2002. The report of the I.A. and the documents filed by the respondents alongwith their Counters do create a doubt about the existence of a CAPART guidelines that made it mandatory to insist on attested copies of certain documents in 2002 when the project was approved.
16. The respondents have also made a statement in para (k) of Reply to evidence on record in the Counter that it was never mentioned in the communication sent to CVC that CAPART guidelines was one of the listed documents in the charge-sheet, as alleged. At the same time, the CVC letter dated 02.03.2010 in para-4 has mentioned that:
4. CVO has stated that the charged officer accepted all the mandatory documents without getting it attested by GO/Notary, that the copy of guidelines of CAPART was one of the listed documents of the case which was given to the Inquiry Officer, that in the said guidelines, it was clearly stipulated that Gazetted Officer/Public Notary should attest all photocopies of mandatory documents which were required to be submitted with the proposal, that accordingly, the CO asked the party to submit the attested copies of documents but later the CO accepted all such documents without getting it attested from the Gazetted Officer. (emphasis supplied)
17. Thus, we find that there are discrepancies in the statement with regard to CAPART guidelines being part of the listed documents and about the same having been communicated to the CVC at the time of obtaining 2nd stage advice. However, we notice that in the ultimate analysis both the DA and AA have stressed on the fact that the applicant having once asked for attested copies of certain documents, failed to ensure compliance of his own direction before placing them for the approval of the Regional Committee. The IA has also observed in his report that:
the version of P.O. appears to be logical when he states that C.O. had the doubt about genuineness of Documents because otherwise there was no reason for calling the authenticated/attested copies of Documents submitted by the V.O. when it is not prescribed so in the guidelines of Capart. Moreover if C.O. had asked for these un-called for Documents in the interest of transparency, then it was all the more necessary for him to ensure that they are received/perused by him & is satisfied about the positive information before recommending the Project to R.C. Patna which he never did.
18. Hence, the allegation with regard to failure of the applicant in ensuring compliance to his own direction would not get obliterated or diluted even if the CAPART guidelines was mentioned in the list of documents. But the charges against the applicant in the memorandum of charge was that he violated CAPART guidelines but the same was modified by the IA to introduce an additional element of Doubt was made in the mind of Shri Arun Shah.. but he did not exercised enough caution, besides the violation of the CAPART guidelines. While the first component of the charge (violation of CAPART guidelines) was not proved, the second component relating to the Doubt. only was proved. DA while differing on the not-proved portion of charge again emphasized on the applicants own doubt and directions to conclude that the first portion of charge was therefore proved! Thus we find substance in the assertion by the learned counsel for the applicant that the disciplinary proceedings got vitiated due to the splitting of the charge. The fact remains that violation of a mandatory procedure could not have been proved without reference to the relevant provision in the CAPART guidelines, as it existed in 2002 and it follows as a corollary that the copy of the same should have been supplied to the applicant.
19. The applicant has also contended that it was the Y.P. who was responsible to scrutinize the documents and once he had scrutinized and submitted the proposal stating that every thing was in order, the applicant was not expected to once again get the entire scrutiny done by himself. This argument does not hold water as it was applicant himself who had asked vide letter dated 24.08.2002 for alleged copies of certain documents and it was expected of him that once the proposal was resubmitted, he would verify whether his instructions had been carried out. Even otherwise being a supervisory officer he cannot escape his responsibility for any lapse in the scrutiny of the proposal, especially when the person putting up the proposal is a contract employee and not even a regular employee.
20. The applicant has claimed that there was no financial loss to the CAPART. The claim does not appear to be canvincing in the face of the fact that a fictitious organization succeeded in getting Rs.1,70,000/- released by the Regional Office at Patna but the Project objectives were never achieved.
21. Another contention of the applicant is that by issuing letter dated 04.08.2010 before DA took a decision on the report of the IA amounted to addition to the charge and, therefore, vitiated the disciplinary proceedings. It is observed that the fact that he did not utilize the services of three Research Officers who were regular employees posted under him was not communicated to him as a charge. He was asked to give reasons for not taking the assistance of the R.O.s. This gave him an opportunity also to explain his conduct and therefore cannot be termed as violation of the principles of natural justice because nothing was being done behind his back or without giving him an opportunity to explain.
22. The applicant has alleged mala fide against the Chief Vigilance Officer by citing an order of respondent no.2 dated 22.05.2008 whereby it was ordered that all vigilance files and future complaints against the applicant will be routed through DDG (Admn.) and not through Chief Vigilance Officer. The applicant has failed to produce any record to show the circumstances under which this order was passed because, the wordings of that order, a copy of which has been enclosed with the additional document and rejoinder, shows that the above order was passed by respondent no.3 with reference to a DO letter dated 14.01.2008 from the Chief Vigilance Officer himself. Thus, we do not have any ground or material on record to explore this allegation further.
23. The applicant has also referred to the minutes of the 51st meeting of the Executive Committee of CAPART held on 25.01.2010 where the following was recorded:
After a detailed discussion on the findings of the Inquiry Officer, the disciplinary authority, the appellate authority and the review petition, the Committee came to the conclusion that the penalty was disproportionately on the higher side and recommended that a minor penalty for Censure would adequately meet the ends of justice. The Committee further opined that expenditure, if any, incurred beyond the Powers delegated to the authority of RR&MC the same be recovered from the officer. was approved by the Executive Committee.
24. In this context it is observed that according to the material placed on record the appellate authority is respondent no.1 and the Executive Committee of CAPART is chaired by the respondent no.1. The respondents have not commented as to why the recommendations of the Executive Committee where both the respondents no.1 and 2 were present were not taken into account while passing the final orders by DA & AA. In this connection in an other case of disciplinary proceedings in CAPART the matter came before this Tribunal in TA-1446/2009 (supra) and in the Tribunals order dated 06.05.2011 the following was recorded:
The disciplinary authority, the Director General of CAPART, echoed the observations of the inquiry authority and noted the reasons for imposing punishment on the Applicant thus:
ANDWHEREAS the report of the Inquiry Officer and the submissions made by Shri B.R. Suman have been very carefully considered by the Executive Committee of CAPART at its meeting held on 24th March, 2000. On careful consideration of all the facts and circumstances of the case the Executive Committee observed that the charge proved against Shri B R Suman, Assistant Director relates to the processing of the case for sanction and release of funds exhibiting undue haste and without appropriate examination establishes the nexus between Shri B R Suman and the V.O. and it creates the doubt about his integrity and dishonest intentions. Taking an overall view in the matter the Committee felt that his continuance in service under CAPART will not be in public interest. It is accordingly felt that good and sufficient reasons exist for imposing the penalty of compulsory retirement on Shri B.R. Suman, AD.
The Executive Committee of CAPART also observed that the matter had been examined by the Applicant inadequately and such examination would establish unholy nexus between the Voluntary Organisation and the Applicant, casting doubts on his integrity "as he would not have acted in a manner he did without any mala-fide and dishonest intentions."
25. In that case the respondent no.2 has based the decision to impose punishment on the observations of the Executive Committee on the report of the IO and the submission of the charged officer thereon. In the present case, there is no explanation for ignoring the view of the Executive Committee that the punishment was disproportionately high and that a penalty of censure will be adequate to meet the ends of justice.
26. From the foregoing discussion it emerges that IOs finding that the charge was partly proved was rightly based on the fact that there was no document to prove that attestation of certain documents was mandatory under the CAPART guidelines. The reason given by the DA for disagreeing with this finding of the IA does not address the main issue. The violation of CAPART guidelines was never proved. In our view there was a violation of the principles of the natural justice to the extent a copy of the CAPART guidelines applicable at the time of the sanctioning of the project was not made available to enable him to prepare his defence but that portion of charge was taken as proved by the DA. [Kumaon Mandal VIkas Nigam, Sher Bahadur and O.P. Sharma (supra)] What is also irreconcilable is that the written midterm evaluation of the work at site was done by two teams. One team gave satisfactory report and the other termed it as not upto the mark. The respondents have not given any reason for discarding the first report and ordering the second evaluation.
27. There is also no explanation as to why no action was taken against the YP who cannot be absolved of the responsibility of not complying with the objection of the applicant for getting attested documents and not pointing out this deficiency in the final note. In S.R. Tewaris case (supra) in the context of an appointment recommended by a Board of officers but disciplinary action being taken against the Chairman, the Honble Supreme Court observed thus:
the matter was considered by a Board consisting of several officers and the appellant could not have been selectively targeted for disciplinary action. In this case also there were persons other than the applicant in the entire decision making process but respondents made no effort to probe their culpability.
28. The charge that has been established is the fact that having once asked for certified copies of certain documents on his own, the applicant failed to ensure compliance to his own direction. We are of the view that even if the charge as stated in the charge-memo is taken as established, the failure on the part of the applicant is procedural. Nowhere, it has been alleged that there was any nexus between the applicant and the VO or any evidence of collusion. Considered in this perspective the penalty imposed on the applicant appears to be disproportionately high and falls in the category where it shocks the judicial conscience [B.C. Chaturvedi (supra)]. Our conclusion in this regard is in consonance with the recommendations of the Executive Committee on the quantum of punishment to the extent that the punishment imposed on the applicant is disproportionate. We are of the considered view that intervention of this Tribunal in the present case is justified and warranted [Pritam Singh and Mahesh Kumar Mishra (supra)].
29. Considering the entire conspectus of this case, we hereby quash and set aside the orders dated 29.07.2011 and dated 21.11.2010 passed by the AA & DA respectively and remand the matter back to the DA for considering appropriate quantum of penalty taking into account our observations and the recommendations of the Executive Committee. The applicant will be reinstated from the date he was compulsorily retired and will be entitled to back wages and other consequential benefits as per the rules which will be further subject to the final order passed by the DA with regard to the quantum of penalty under the aforesaid directions. The order shall be implemented within four weeks from the date of receipt of this order. The OA is allowed accordingly. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.