ORDER
Gopal Krishan Vyas, J.
1. In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the judgment dated 28.11.2008 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 241/07, whereby, the learned Tribunal dismissed the original application filed by the petitioner and further directed that the respondents shall finalize the departmental proceedings within six months from the date of receipt of copy of the order as the incident mentioned in the charge-sheet related to the year 1995. Applicant-petitioner was also directed to cooperate with the disciplinary proceedings fully.
2. As per brief facts of the case, the petitioner was charge-sheeted under Rule 14 of the Central Civil Services (CCA) Rules, 1965 vide charge memo dated 16.08.2007. In the charge-sheet, three articles of charges against the petitioner relating to the incident of year 1995, in respect of which a criminal case was also registered and the relied documents as appended as a list with the charge-sheet also are same as of the criminal case including the FIR.
3. The petitioner is an employee of the Income Tax Department working since 1995. The alleged misconduct for which charge-sheet was issued to the petitioner vide memorandum dated 16.08.2007 relates to criminal case also. The C.B.I. Registered an FIR on 26.04.1995 in which challan was filed and, subsequent to trial of the said criminal case, he was acquitted by the C.B.I. Court. After acquittal, the respondent department sought explanation from the petitioner vide show-cause notice dated 04.02.2003 as to why disciplinary proceedings should not be initiated against him. The petitioner filed his explanation vide communication dated 04.02.2003 and denied all the allegations in detail and being satisfied after considering the explanation submitted by the petitioner, the disciplinary authority concluded that this is not fit case for initiating disciplinary proceedings as the action being regular and bona fide having no mens rea. With the above observation it was recommended by the disciplinary authority that no disciplinary action is required against the petitioner.
4. It is very strange that subsequent to the above decision of the disciplinary authority, though the petitioner was accorded promotion to the post of Income Tax Officer with effect from 24.10.2003, from the date persons junior to the petitioner were promoted, after opening the sealed cover in furtherance of the recommendation of the DPC. But, after about 12 years of the alleged period of charges, again, a charge-sheet was served upon the petitioner.
5. The petitioner raised objection vide letter dated 10.09.2007 in detail but the respondents vide order dated 14.09.2007 rejected the same stating that acquittal from the criminal Court will not be a bar for initiation of the departmental proceedings and delay was not totally attributable to the department. The petitioner filed original application before the Central Administrative Tribunal, in which, he challenged the order dated 14.09.2007 whereby he raised objection with regard to issuance of fresh charge-sheet against him for the charges upon which criminal case was registered and petitioner was acquitted; and, thereafter, the disciplinary authority issued show-cause notice to him against which he filed his explanation and that explanation was accepted by the disciplinary authority with due satisfaction found that it is not fit case for initiating any departmental proceedings; but, as per the respondents, in the reply submitted before the Tribunal there was difference of opinion in between the C.B.I. and Commissioner, therefore, the matter was referred to the Central Vigilance Committee (C.V.C.) culminating into the charge-sheet.
6. As per respondents, upon the advice of the C.V.C. The charge-sheet was issued even after 12 years of the alleged misconduct and delay in issuance of the chargesheet does not create any legal right in favour of the delinquent. Upon objection raised by the petitioner with regard to issuance of fresh charge-sheet by way of filing representation, the respondents rejected the representation filed by the petitioner vide order dated 14.09.2007, on the ground that the acquittal from the criminal Court will not be a bar for initiation of departmental proceedings and the delay is not totally attributable to the department.
7. The petitioner's original application was dismissed by the learned Tribunal vide judgment dated 23.11.2008 and further ordered that the respondents shall finalize the departmental proceedings within six months from the date of receipt of copy of the judgment/order. The said judgment is under challenge in this writ petition.
8. Contention of learned Counsel for the petitioner for assailing the validity of the said judgment is that the finding of the learned Tribunal is totally erroneous and contrary to basic principles of law. Admittedly, the charge-sheet issued on 16.08.2007 relates to the Articles of charge of year 1995 and for the same charges a criminal case was also registered against the petitioner, in which, he faced the trial and, ultimately, he was acquitted by the criminal Court. The respondent Department also served show-cause notice asking for the petitioner's explanation why disciplinary action should not be initiated against him; but, upon filing the explanation by the petitioner it was concluded by the Disciplinary Authority that no case is made out for initiation of disciplinary inquiry against the petitioner. The said decision taken by the disciplinary authority was accepted and petitioner was accorded promotion as Income Tax Officer in the year 2003. Therefore, after according promotion, nothing remains to be adverse against the applicant in respect of the period prior to the date of promotion.
9. It is obvious that if an employee is exonerated in criminal case for the same charges, for which, showcause notice is issued and, after filing reply to the showcause notice, the Disciplinary Authority comes to the conclusion that no case is made out, then, there is no occasion left for any of the authorities to take further action as appellate authority of the decision taken by the Disciplinary Authority. The power to take disciplinary action is left with the Disciplinary Authority only and none else and once the Disciplinary Authority has opined that no case is made out for initiation of inquiry, then, any further action taken by the respondents can be defined as illegal action because as per Rule 14(2), the opinion of the Disciplinary Authority is final and shall prevail and no other authority can exercise the power to revise the decision of Disciplinary Authority. Here, in this case, admittedly, the Disciplinary Authority found after giving due notice to the petitioner and taking explanation from him that no case is made out to proceed against him, then, in that event, the charge-sheet issued to him on the basis of recommendation of the CVC deserves to be quashed; but, the learned Tribunal has committed a gross illegality while not accepting the above fact for the purpose of adjudicating the original application filed by the petitioner against the charge-sheet.
10. Hon'ble Supreme Court while considering the question of delay in departmental inquiry concluded that prolonged disciplinary inquiry against a government employee should be avoided in the interest of inspiring confidence in the minds of government employees. In the present case, the competent disciplinary authority already satisfied with the reply to the show-cause notice with regard to initiation of disciplinary inquiry, then, further action taken as per recommendation of CVC is per se illegal and no other authority other than the disciplinary authority can be given the power to take decision for initiation of the inquiry.
11. Learned Counsel for the petitioner submits that three judgments of the Hon'ble Supreme Court were brought to the notice of the learned Tribunal but the learned Tribunal ignoring all the judgments has illegally accepted the reply of the respondents that the action taken against the petitioner as per advice of the Central Vigilance Commission the respondent department has rightly proceeded with the departmental proceedings against the applicant. Further, it is submitted that at the time of adjudication the learned Tribunal has only observed that counsel for the applicant has relied upon the judgments of the Supreme Court; but, at the time of adjudication, none of the judgments cited by counsel for the petitioner were considered and discussed, therefore, it appears that the Tribunal has totally ignored the adjudication made by the apex Court. In this view of the matter, the judgment impugned deserves to be quashed and set aside.
12. We have considered the rival submissions made on behalf of both the parties.
13. In this case, admittedly for the same charges, for which, charge-sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued vide memo dated 16.08.2007, a criminal case was registered in the C.B.I. and, after investigation, challan was filed in the Court of Special Judge, C.B.I. Cases where the petitioner faced the trial; but, ultimately, vide judgment dated 29.11.2002, after seven years, learned trial Court acquitted the petitioner and it was observed in the judgment that charge against the petitioner was not of criminal nature but the same being in the nature of departmental irregularities.
14. After passing of the said judgment admittedly a show-cause notice was issued to the petitioner by the Disciplinary Authority. The petitioner filed his explanation before the Disciplinary Authority and, after due satisfaction, the Disciplinary Authority dropped the inquiry and gave finding that this does not appear to be a fit case for initiating disciplinary proceedings as the action being regular and bona fide having no element of mens rea. But, contrary to the decision taken by the Disciplinary Authority while knowing the fact that petitioner has been provided promotion as Income Tax Officer the impugned charge-sheet was issued on the ground that in the case of non-gazetted employee it is provided that wherever there is difference of opinion between the C.B.I. and competent authority the matter was to be referred to the CVC and, accordingly, the case of the petitioner was referred to the CVC for its advice and, as per the advice of the CVC, charge-sheet dated 16.08.2007 was issued.
15. In our opinion, the learned Tribunal has committed a serious error of law while ignoring the fact that power of decision as to initiating the inquiry or not to initiate the inquiry, vests in the Disciplinary Authority and only the Disciplinary Authority is competent under Rule 14(2) of the CCS (CCA) Rules, 1965; and, once the Disciplinary Authority has exercised the power while giving show-cause notice to the petitioner and took decision not to proceed for inquiry after considering the explanation given by the petitioner, then, it is not open to any of the authorities to take contrary decision. The rule of law must prevail and opinion given by any other authority cannot be taken into consideration to surpass the decision taken by the Disciplinary Authority as provided in the statute.
16. Hon'ble apex Court, in the case of Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office, Manipal and Anr. reported in : AIR 1991 SC 1507 in para 19 held as follows:
The corresponding new bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No thirds party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smith's Judicial Review of Administrative Act, Fourth Edition, p.309). The impugned directive of the Ministry of Finance is, therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters.
17. Now a days, it is seen that in government departments, in very casual manner, the authorities other than the Disciplinary Authority usurp the power of the Disciplinary Authority and imposing their decision upon the competent authority which is not permissible under the law. This case is clear example of that situation The petitioner was subjected to trial and upon charge-sheet filed by the C.B.I., after trial, the Special Judge, C.B.I. Cases acquitted the petitioner; and, thereafter, the Disciplinary Authority after due application of mind gave opinion that it is not a fit case in which departmental proceedings should be initiated and after accepting the opinion of the Disciplinary Authority by the Department, the petitioner was accorded promotion. Inspite of the above fact, on the basis of the advice of the CVC, again, charge-sheet was issued to the petitioner, that too, after 12 years. In our opinion, due to unnecessary interference not only unnecessary litigation has been created but public money is also mis utilized.
18. We are also required to say something with regard to adjudication made by the Tribunal In our opinion, the learned Tribunal although reproduced the extracts of the judgments cited by counsel for the petitioner but, has not chosen to consider the adjudication made by the Supreme Court in those judgments. Even it is not taken into consideration for adjudicating the controversy involved in the matter.
19. In this view of the matter, we deprecate the practice of the Central Administrative Tribunal ignoring the proposition of law laid down by the apex Court while observing in one line that the judgments relied upon by the counsel for the petitioner are of no help which is not proper. The learned Tribunal has proceeded upon the presumption that the power for taking disciplinary action lies with the Central Vigilance Commission only; but, in fact, this assumption is unfounded because the legislature has enacted rules and for taking disciplinary action and as per principle of law only the Disciplinary Authority is competent to take decision and none else.
20. In this view of the matter, while following law laid down in the case of Nagraj Shivarao Karjagi (supra) this writ petition is allowed. Impugned judgment dated 28.11.2008 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur and, so also, chargesheet Annex.-3 dated 16.08.2007 impugned in the Original Application No. 241/07 are hereby quashed and set aside. A copy of this order may be sent to the Central Administrative Tribunal, Jodhpur Bench, Jodhpur.