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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
D.B. Civil Writ Petition No.1350/2009.
(Rajendra Singh Sisodia Vs. Union of India & Others)
DATE OF ORDER : March 22nd, 2010
PRESENT
HON'BLE MR. JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. Kamal Dave for the petitioner.
Mr. Varun Gupta for the respondent(s).
Reportable
BY THE COURT : (Per Hon'ble Mr. Vyas, J.)
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
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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.
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.
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
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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.
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.
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
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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.
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 charge-
sheet 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
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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.
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.
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
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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.
It is obvious that if an employee is exonerated in
criminal case for the same charges, for which, show-
cause notice is issued and, after filing reply to the show-
cause 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
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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.
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.
Learned counsel for the petitioner submits that
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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.
We have considered the rival submissions made
on behalf of both the parties.
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
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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.
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
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dated 16.08.2007 was issued.
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.
Hon’ble apex Court, in the case of Nagaraj
Shivarao Karjagi Vs Syndicate Bank Head Office,
Manipal and Another, reported in AIR 1991 SC 1507, in
para 19, held as follows :
“The corresponding new bank referred to
in S..8 has been defined under S.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
11regard 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.”
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;
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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.
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.
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
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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.
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, charge-
sheet 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.
(Gopal Krishan Vyas) J. (A.M. Kapadia) J.
Ojha, a.