| SooperKanoon Citation | sooperkanoon.com/54737 |
| Court | Central Administrative Tribunal CAT Ahmedabad |
| Decided On | Jan-31-2006 |
| Judge | A Sanghvi, P A Shankar |
| Reported in | (2006)(3)SLJ43CAT |
| Appellant | Dilip Wagheshwari |
| Respondent | Union of India (Uoi) and ors. |
He has approached this Tribunal challenging the charge sheet and seeking the following relief: (A) Quash and set aside the impugned charge sheet dated 28.8.2004 at Annexure-A hereto on the ground that the respondent No. 2 herein is not vested with any authority or power under any law to decide and initiate major penalty proceedings against the applicant herein.
(B) Be further pleased to hold and declare that the decision of the respondent Nos. 2 and 3 herein to initiate major penalty disciplinary proceedings against the applicant herein suffers from the vices of bias, prejudice, malice and inordinate and unexplained delay.
(C) Hold, declare and direct that having regard to the peculiar facts and circumstances as narrated in the present O.A., the disciplinary proceedings initiated against the applicant, with the issuance of the impugned charge sheet at Annexure-A hereto shall not be proceeded with until the final outcome of the two criminal cases viz. Criminal cases bearing RC No. 1 (A)/99-GNR and RC No. 03(A) of 2000 pending before the learned CBI, Court at Ahmedabad.
He has alleged that the respondent No. 2 is not an authority of competence to hold an inquiry against him as he is not an employee of the Prasar Bharati and is only the Central Govt. employee on deemed deputation to Prasar Bharati. It is also contended by him that the respondent No. 3 was highly prejudiced and biased against him as he had not joined in Dharna and strike along with other Doordarshan employees.
He had also been jealous on the award of a case price of Rs. 2500 to the applicant. He has also alleged that one Mr. Atul Patel with the active connivance of the respondent No. 3 has managed to get a raid conducted in his office chamber on 15.7.99 by the CBI and falsely implicated him. He was arrested and a criminal case being RC No. 1(A) of 1999 has come to be registered before the learned Session Judge, CBI, Ahmedabad. The respondent No. 3 had thereafter persuaded the DDK Headquarter to place him under deemed suspension. The criminal case is still pending for final trial and disposal. He had made a representation on dated 3.3.99 followed by reminder dated 30.7.99 to the Ministry, for revocation of his suspension. The charge sheet in the criminal case has come to be filed by the CBI on 16.4.2000. The respondent No. 2 has only on dated 9.1.2003 i.e. after lapse of about four years after the alleged incident of 15.2.99 issued a departmental charge sheet to him on the assumption that he is the Disciplinary Authority. He has contended that respondent No. 2 has no authority or power to issue such a charges sheet and as such, such a charge sheet was not maintainable. He has also contended that this inordinate delay in filing the departmental charge-sheet is also fatal to the charge sheet and the same deserves to be quashed. He has pointed out that after filing his reply on dated 29.1.2003 to the departmental charge sheet, he had moved an O.A. No. 77/2003 before this Tribunal praying for quashing and setting aside the same departmental disciplinary proceedings. The same has been disposed of by this Tribunal on the ground of lack of jurisdiction of this Tribunal. Thereafter no Inquiry Authority or the Presenting Officer is appointed in pursuance to the said charge sheet and the inquiry in the charges levelled against him has also not been initiated against him. His suspension has also come to be revoked w.e.f. 2.4.2004 only after finding that the same would not be sustainable in the eye of law. He has further alleged that only after revocation of his suspension the respondent No. 2 at the instance of the respondent No. 3 had taken up the charge sheet dated 9.1.2003 and realized that in the article of charge there is no mention as to the person from whom the applicant had allegedly demanded and allegedly accepted the amount in question. Hence, without considering the defence statement filed by him on 29.1.2003 the respondent No. 2 at the instance of respondent No. 3 had issued an order dated 31.7.2004 withdrawing the said charge sheet dated 9.1.2003 without prejudice to any fresh proceedings being initiated against him. He has thereafter come to be issued a fresh charge sheet on dated 28.8.2004 and though the respondent No. 2 cannot act as Disciplinary Authority in his case, the charge sheet is given by him. According to the applicant since he belongs to Group 'B' General Civil Service of the Union, only the Secretary to the Govt. of India can decide and issue major penalty charge sheet against him. He has asserted that the impugned charge sheet is issued without any authority and power by the respondent No. 2 and the same is served to him only at the instance of respondent No. 3 who is biased and prejudiced against him and as such the same deserves to be quashed and set aside.
2. The respondent No. 2 has filed his written reply to the O.A. The respondent No. 3 though joined in his personal capacity, has not filed any reply to the O.A. In his reply to the O.A. the respondent No. 2 has denied that he is not competent to issue the charge sheet to the applicant. He has pointed out that on one hand the applicant himself has asserted that he has not been absorbed in Prasar Bharati and as such he is a Central Govt. employee, while on the other hand he is challenging the competence of respondent No. 2 to issue the charge sheet. As per CCS (CCA) Rules, the Head of the Deptt. is the Disciplinary Authority of Group 'B' post and since the applicant is holding Group 'B' post, the Director General Doordarshan being the Head of the department is the Disciplinary Authority and Competent to initiate the disciplinary proceedings against him. He has also denied that the charge sheet is issued to the applicant at the instance of the respondent No. 3 and that the respondent No. 3 being biased and prejudiced against him had instigated the department to issue the charge sheet against him. He has pointed out that the applicant while working as Programme Executive in Doordarshan, Ahmcdabad during the month of February, 1999 had stopped the telecast of one TV serial titled "Jaduna Khcl" without seeking permission from the higher authority. Not only that, he demanded illegal gratification of Rs. 20,000 from one Mr. Atul Patel, Producer of the said serial and on the complaint lodged by Mr. Atul Patel with the CBI, the CBI had arranged the trap and caught the applicant and Ms. Hetal Trivedi red handed, while accepting the bribe. The CBI also arrested the applicant on 15.2.99 and was in police/judicial custody for more than 48 hours.
Since he was in police/judicial custody for more than 48 hours as per CCS (CCA) Rules he was placed under deemed suspension with effect from the date of his detention. The CBI has already filed a charge sheet in the Court in the criminal case lodged against the applicant and therefore, the question of respondent No. 3 being prejudiced or biased against the applicant and at his instance the departmental charge sheet was given does not survive. The departmental charge sheet given earlier was withdrawn due to technical defects and fresh charge-sheet is given to the applicant. They have also denied that there is delay in issuing the charge sheet to the applicant and that they are deliberately not pursuing the disciplinary proceedings. According to them it is the applicant who has delayed the conclusion of the disciplinary proceedings pending against him by approaching the Tribunal and the Court time and again. They have asserted that it is a settled legal position that the departmental proceedings can simultaneously proceed with the criminal proceedings. They have contended that there is absolutely no merit in the O.A. and prayed that the O.A. be dismissed with costs.
3. We have heard the learned Counsels of both the parties and duly considered the rival contentions.
4. It is rather surprising that the applicant has raised the contention regarding the competency of the respondent No. 2 to issue him with the charge sheet and has even gone to the extent of seeking relief of quashing and setting aside the impugned charge sheet dated 28.8.2004 on the ground that respondent No. 2 is not vested with any authority or power under any law to initiate major penalty proceedings against him.
It is to be noted that in the O.A. the applicant has unequivocally averred that he is a Central Govt. employee on deputation to Prasar Bharati. He has also asserted that he has not been absorbed in Prasar Bharati and continues to be the Central Govt. employee. When he is Central Govt. employee or employee of Doordarshan we fail to understand how the Director General of the Doordarshan does not possess the competency or power to issue the charge sheet for the alleged misconduct on his part. The charge sheet is given to him under Rule 14 of the CCS (CCA) Rules, 1965 and the respondents have asserted in the reply that the Director General being the Appointing Authority and being the Competent Authority for Group "B" post and also Head of the Department, the averment of the applicant that he was not competent and empowered to issue such a charge sheet is quite mischievous. In fact, the applicant was placed under suspension by the respondent No. 2 and the said suspension order was challenged by the applicant by moving O.A. 8/2003 before this Tribunal. The Tribunal had vide order dated 4.7.2003 directed the respondents to review the suspension of the applicant in the light of the extant rules and regulations.
Subsequently, when the applicant was transferred by respondent No. 2 to Bhuvaneshwar, he had challenged that order by filing O.A. 502/04. He had all along maintained that he was a Central Govt. employee and therefore, this Tribunal has the jurisdiction to entertain and decide his grievances. He therefore, now cannot be heard to blow hot and cold by contending that the respondent No. 2 had no authority, power or competence to issue the charge sheet to him. In fact in none of his replies to the charge sheet he has raised this dispute about the competency of the respondent No. 2 to issue the charge sheet to him.
Significantly when the charge sheet dated 9.1.2003 was issued to him he had challenged the same by moving O.A. 77/03. The said O.A. had come to be rejected on the ground that the Tribunal has no jurisdiction as the applicant therein stated that he was the employee of the Prasar Bharati. Now he has again invoked the jurisdiction of the Tribunal on the ground that he was on deputation to Prasar Bharati and still insisting that respondent No. 2 Director of the Doordarshan had no competence to issue him the charge sheet. It is quite obvious that when the applicant is treating himself as a Central Govt. employee or the employee of the Doordarshan the question of respondent No. 2 as the Director of the Doordarshan being competent to issue him a charge sheet for alleged misconduct on his part cannot be permitted to be agitated any further. It is not the say of the applicant that under the Rules, the respondent No. 2 is not his Appointing Authority or his Disciplinary Authority. He is raising the question of the competence of respondent No. 2 to issue him a charge sheet only on the ground that he is a Central Govt. employee on deputation to Prasar Bharati. Merely because an employee is on deputation to other institution, the parent department does not become incompetent to serve him with a charge sheet for a misconduct. We find from the record that the applicant has taken inconsistent pleas so far the question of the competence of the respondent No. 2 to serve the charge sheet to him is concerned. We however, do not find any substance in this plea raised by the applicant, as under the rules Director General of Doordarshan is very much competent to initiate disciplinary proceedings against Group 'B' officers of the Doordarshan or AIR. We therefore, reject this contention.
5. The next contention raised is that the impugned charge sheet has come to be issued to him in view of respondent No. 3, Mr. Satish Saxena, Chief Producer, Doordarshan Kendra, having grudge and malice against him. According to him when some employees of Doordarshan including the respondent No. 3 had observed Dharna and demonstrations before the office of the Doordarshan, he had not joined them and had carried on his duties faithfully resulting into annoyance and grudge against him on the part of respondent No. 3. He had in connivance with the CBI framed and lodged the case of illegal gratification against him and got issued the charge sheet. It is also alleged that his instance he was suspended by respondents and was kept under continuous suspension till the Tribunal directed to review his suspension.
According to him even when his suspension was revoked and he was directed to be reinstated, the respondent No. 3 did not like it and brought pressure on respondent No. 2 to transfer him to Bhuveneshwar.
6. It cannot be denied that these are serious allegations made against respondent No. 3 and the respondent No. 3 who is joined as a party in his individual capacity was supposed to reply to them. He has however, not filed any reply in this O.A. and relying heavily on this aspect.
Mr. Rao, learned Counsel for the applicant has submitted that this failure of respondent No. 3 in filing reply requires drawing of adverse conclusion that the allegation of mala fide against him are correct and should be accepted. It is true that ordinarily when the allegations of mala fide against an individual officer are made, the same are required to be answered by the concerned officer and his failure to rebut the same, may be a reason of drawing adverse inference against his case.
However, in the instant case the respondent No. 3 appears to have been transferred to Kohima and as can be seen from the pleadings in this O.A. itself, he has also been transferred by way of punishment. It would therefore to be but natural he would not be inclined to cooperate with the department and might be in different to the charges levelled against him by the applicant. Mere failure of the respondent No. 3 to file his reply and rebut the allegations of mala fide against him is however, not sufficient for the applicant to prove his case. He is required to prove the allegations of mala fide independently by bringing some material on record. He has however, failed to discharge that burden. Except the bare allegation of mala fide made by him and except a circumstance of his not joining the Dharna and demonstrations along with other employees including respondent No. 3, cannot be deemed to be providing sufficient material to establish the allegations of mala fide. There is absolutely no material on record to show how the respondent No. 3 had connived with CBI to lay a trap against the applicant. In fact, the respondent No. 3 is not participant in that trap and the record shows that CBI had acted on the complaint of a third party Mr. Atul Patel who was producer of one of the serials. In any case the CBI has found sufficient evidence against the applicant to arrest him and submit a charge sheet in the Criminal Court. When any employee is arrested and has to be sent to the police custody or judicial custody the department under the rules is bound to treat him as under deemed suspension. The applicant therefore, cannot be heard to make a grievance about his deemed suspension and also about the subsequent decision of the department to hold an inquiry against him.
The CBI has levelled a serious charge of illegal gratification against him and the department could not have closed eyes to such serious charges and even after his arrest and submission of the charges levelled against him by the CBI allowed him to work without taking any action against him. Their decision to serve him with a charge sheet levelling imputations of misconduct and lack of integrity cannot therefore, be attributed to the mala fides of the respondent No. 3.
They were under the rules bound to take action against him in view of independent agency i.e. CBI arresting him of criminal charges and even filing a criminal case against him in the Criminal Court. It is alleged that he had committed gross misconduct inasmuch as he demanded illegal gratification of Rs. 20,000 from one Mr. Atul Patel and Ms. Hetal Trivedi accepted illegal gratification of Rs. 10,000 on his direction and on his direction restarted the serial "Jaduna Khel" produced by Mr.
Atul Patel. It is alleged that he had stopped the telecast of TV serial without first seeking permission of his higher officer and for restarting the serial he had demanded Rs. 20,000 as illegal gratification from Mr. Atul Patel. When a prima facie case to file charge sheet is already made .out by the CBI, the question of departmental charge-sheet having been issued to him at the instance of respondent No. 3, does not arise at all. The department had no other alternative but to initiate the disciplinary proceedings against him as there are serious allegations of misconduct and lack of integrity against him. We therefore, do not find any substance in this allegation and reject the same.
7. The next ground on which the charge sheet is challenged is the delay in issuing the charge sheet. Admittedly the charge sheet was issued to the applicant on dated 9.1.2003 but finding some error therein the same was withdrawn vide order dated 31.7.2004 without prejudice to any further proceedings being initiated against him. Subsequently the impugned charge sheet dated 18.8.2004 has been served to him. The applicant has contended that for the incident of 1999 the service of the departmental charge sheet in 2003 is clearly vitiated on account of inordinate delay. There is no substance in this contention. The whole case against the applicant has been initiated by the CBI and only because of his arrest by CBI on the charges of demanding and accepting illegal gratification and being kept in the custody for more than 48 hours, he had to be placed under deemed suspension and that suspension continued till the same was revoked vide order dated 2.7.2004 w.e.f.
2.4.2004. Since the investigation in the charges against him was going on and the CBI had yet not filed the criminal charges against him the department was clearly justified in not issuing any departmental charge sheet to him. If the CBI had decided not to file the charge sheet in the Criminal Court, obviously the department also would have desisted from issuing any departmental charge sheet to him. However, since it is a settled legal position that the departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously though separately, the department appears to have issued the impugned charge sheet to the applicant. It is also not certain when the criminal case pending against the applicant would be taken up for hearing and finally decided. It is also a settled legal position that if the criminal case does not proceed or its disposal is unduly delayed the departmental proceedings, even if, they were delayed on account of pendency of the criminal case can be proceeded with, so as to conclude them at an early date. Under the circumstances, the department cannot be blamed for the delay in issuing the charge sheet to the applicant and on this count the departmental proceedings initiated against the applicant cannot be held to be vitiated and the charge sheet cannot be quashed.
8. Another plea made by the applicant is for the stay of the disciplinary proceedings until the final outcome of the two criminal cases pending before the CBI Court at Ahmedabad. The question of staying a departmental proceedings when the criminal case based on identical and similar set of facts is pending, had been subject matter of the O.A. 174/2005 decided by this Tribunal on 23.8.2005 as well as O.A. 78/2004 in the case of H.P. Motwani v. Union of India decided on 19.1.2005. Relying on the decision of the Hon'ble Supreme Court in the case of Captian M. Paul Anthony v. Bharat Gold Mines Ltd. , Kendriya Vidhyalaya Sangathan v. T. Srinivasa, , the Tribunal has in both cases refused to stay the departmental proceedings. In the case of Kendriya Vidhyalaya Sangathan v. T. Srinivas (supra) the Apex Court after considering the decision in the cases of B.K. Meena and M. Paul Anthony laid down as under: In the instant case, from the order of the Tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, a reading of the two impugned orders indicates that both the Tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the respondent in service in spite of such serious charges levelled against him. This Court in the said case of State of Rajasthan has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that in the disciplinary proceedings the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The Court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan the facts which seem to be almost similar to the facts of this case held that the Tribunal fell in error in staying the disciplinary proceedings.
9. The Apex Court further in Para 14 of the decision has observed as under: We are of the opinion that both the Tribunal and the High Court proceeded on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, in this background it is not necessary for us to go into the second question whether at least charge 3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned Counsel for the appellant.
10. This decision of the Hon'ble Supreme Court applies with full force to the facts of the instant case as the facts of the instant case also pertain to acceptance of illegal gratification and the desirability of continuing the respondent in service inspite of such serious charges levelled against him. The Hon'ble Supreme Court has in no uncertain terms observed that when the case involves question of acceptance of illegal gratification and is a case under the Prevention of Corruption Act then considering the seriousness of the charges levelled against the delinquent, the departmental inquiry should not be stayed.
11. Again in the case of State Bank of lndia v. R.B. Sharma while disposing of the question regarding staying of the departmental inquiry the Apex Court in Para 8 of the judgment has observed as under: The purpose of the departmental inquiry and of prosecution arc two different aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall made satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.
Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short" the Evidence Act"). Converse is the case of departmental inquiry. The inquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances what is required to be seen is whether the departmental inquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.
Court has observed that advisability, desirability or propriety as the case may be, of staying the departmental inquiry has to be determined in each case taking into consideration all the facts and circumstances of the case. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court's decisions.
13. When the ratio of all these three decisions of the Hon'blc Apex Court is duly considered in the light of facts of the instant case, we have no hesitation in concluding that the relief prayed for by the applicant for staying the departmental proceedings cannot be granted.
The applicant is facing serious charges of accepting illegal gratification which is a charge against the public policy and the criminal trail initiated by the CBI by filing a charge sheet in the Special Court has yet not begun though the charge sheet is filed as far back as 2003. There is no certainty when the trial in the Special Court will begin and when it will end. When there is no certainty as to the commencement of the trial itself, it would not be prudent to stay the departmental proceedings indefinitely. Merely because the applicant is likely to be prejudiced in his defence cannot be a ground for staying the disciplinary proceedings indefinitely and allow the delinquent a premium on his illegal act. When it is alleged that he has been caught red handed while accepting illegal gratification staying the departmental proceedings and permitting the applicant to continue in the service inspite of such serious charges levelled against him would not be desirable and would be clearly against the public interest. Mr.
M.S. Rao, learned Counsel for the applicant has drawn our attention to the interim stay granted by the Gujarat High Court in Special C.A. No.4633/05 and Special C.A. No. 12595/2005 in similar matters but both the stays are given ex pane and it is made clear by the Hon'ble High Court that they are subject to the hearing the other side. They cannot therefore, be considered as laying down law for deciding matter. We may however, point out that in another matter of H.P. Motwani v. Union of India and Ors. in O. A. 78/2004 decided on 19.1.2005 this Tribunal, relying on the Hon'ble Supreme Court decision in the Kendriya Vidyalaya Sangathan (supra) has refused to stay the departmental proceedings in a similar matter. We do not see any reason to take a different view in this matter than the one that we have already taken. We do not sec any merit in this O.A. and are of the considered opinion that this O.A.deserves to be rejected. In the conclusion, therefore, the O.A. is rejected with no order as to costs.