CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 4221/2010 New Delhi this the 3rd day of June, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri R.K.Srivastava, Secretary, Labour, Govt. of NCT of Delhi, 7th Level, C-702, Delhi Secretariat, IP Estate, New Delhi. Applicant (By Advocate Shri P.P.Khurana, Sr. Advocate with Sh.VSR Krishna) VERSUS Union of India, through: 1. The Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Chief Secretary, Govt. of NCT of Delhi, 7th Level C-702, Delhi Secretariat, IP Estate, New Delhi. Respondents (By Advocate Mrs. P.K.Gupta ) O R D E R
Mr.L.K.Joshi, Vice Chairman (A):
Shri R.K. Srivastava, an IAS officer of 1984 batch of the AGMU cadre, is assailing the Memorandum of Charge dated 15.02.2010 under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, on the grounds of the charge sheet being highly delayed inasmuch as it is about the matter relating to the period between August 1999 and February 2001, the charges being vague and frivolous and also because a criminal case on the same grounds and based on the same documents and witnesses is pending against him before the Special Judge (CBI). He is also challenging the order dated 06.09.2010 by which the inquiry authority has been appointed to inquire into the charges against the Applicant.
2. The facts of the case, in a nutshell, are that the Applicant was posted as Registrar, Cooperative Societies, Delhi between the period September 1999 to February 2001. A Writ Petition (Civil) No. 10066/2004 was filed before the Honourable Delhi High Court complaining of illegal nexus between the builders and the officers of the Delhi Development Authority and the office of the Registrar of Cooperative Societies, by which land was being allotted to the ineligible societies on concessional rates and then the flats constructed thereon were being sold at market rates by the builders. The High Court, after hearing the case, directed on 13.02.2006, that a thorough investigation be conducted in the matter of 135 Cooperative Societies, which had become defunct and revived by the builders. On completion of the inquiry the CBI requested for sanction of prosecution against the Applicant, which was given on 05.06.2009 by the Department of Personnel and Training (DOP&T). It was also mentioned in the above mentioned letter that the Central Vigilance Commission (CVC) had also recommended initiation of major penalty proceedings against the Applicant and advised the Ministry of Home Affairs to take appropriate action in the matter.
3. The Article of Charges against the Applicant have been extracted below:
Article-1 Shri R.K.Srivastava, while functioning as Registrar of Cooperative Societies (RCS), Government of NCT of Delhi, New Delhi in the office of Registrar of Co-0perative Societies (RCS), Government of NCT of Delhi during the period between August, 1999 to February 2001 committed gross misconduct by passing revival order in respect of defunct Palwell Co-operative Group Housing Society Ltd. in collusion with S/Shri Yogiraj, the then Assistant Registrar, P.K.Thirwani, the then Sr. Auditor,Satish Aswal, the then Dealing Assistant, while working in the office of Registrar Co-operative Societies,Delhi and S/Shri Ashok Goenka, Gokul Chand Agarwal, Ashwani Sharma, Lalit Gupta dn. S.P.Saxena, all private persons who were closely associated with the affairs of the aforesaid society. The Society had been ordered to be wound up on 8.10.1992 and put under liquidation for violation of DCS Act and Rule. The Society was not found functioning from its registered address. On a letter dated 16.6.2000 submitted by Shri Gokul Chand Aggarwal, Secretary of the Society, Shri R.K. Srivastava passed an order dated 15.12.2000 for revival of the society on the basis of false and forged documents. Shri R.K. Srivastava ordered for revival of the Society on the basis of false and forged documents/affidavits processed and put up by Shri Satish Aswal, dealing hand without due verification/cross checking of records. Later, on a note date 5.1.2001 put up by Shri Satish Aswal, dealing assistant, Shri R.K. Srivastava approved the list of 60 members and ordered for forwarding the same to DDA for the allotment of land. Original members of the Society had been falsely shown to have resigned from the membership of the Society and their signatures were forged on the resignation letters.
Shri R.K.Srivastava by his above acts exhibited lack of integrity, devotion to duty, unbecoming of a Government servant and thereby violated Rule 3 of All India Service (Conduct) Rules, 1968.
Article-II Shri R.K.Srivastava, while functioning as Registrar of Co-operative Societies (RCS), Government of NCT of Delhi, New Delhi in the office of Registrar of Cooperative Societies (RCS), Government of NCT of Delhi, New Delhi during the period between August 1999 to February, 2001 committed gross misconduct in as much as knowingly ignored the initial note put up on the file by Shri S. Subramanium, dealing assistant after receipt of application for the revival of the Palwell Co-operative Group Housing Society Ltd. and in which inter-alia, physical inspection/verification of the said Society and its records was recommended but no physical inspection/verification of the Society was carried out. Shri R.K.Srivastava, however, approved the bogus list of members of the Society which was forwarded to Delhi Development Authority for allotment of land at prefixed rates which were very low in comparison to prevailing market rates.
Shri R.K.Srivatava by his above acts exhibited lack of integrity, devotion to duty, unbecoming of a Government servant and thereby violated rule 3 of All India Service (Conduct) Rules, 1968.
4. The learned senior counsel for the Applicant argued that about 135 FIRs were filed after the CBI completed the investigation, but it was only the Applicant who had to face both the criminal prosecution as well as departmental proceedings. No action was taken against other persons holding the post of Registrar before him and involved in the alleged scam. It was urged that during that period Shri Gopal Dixit, the Applicant and Shri N. Diwakar were posted as Registrar of Cooperative Societies, but departmental proceedings were not initiated against the other two persons posted as Registrar of Cooperative Societies, although the charges in the criminal trial against the aforementioned two persons were the same as against the Applicant.
5. It was further submitted that on receiving the Memorandum of Charge the Applicant had given a representation to the Secretary, Ministry of Home Affairs, the first Respondent herein, that the orders passed by him in exercise of quasi-judicial powers could not be a subject matter of disciplinary proceedings. It was submitted that in the quasi-judicial proceeding the concerned officer acts independently only under the statute, which he is supposed to administer. The Applicant has worked according to the provisions of the law regarding regulation of Cooperative Societies and the pronouncements of the courts in this regard. The action of the Respondents would amount to undermining the judicial process and call in question the exercise of quasi-judicial powers vested in the Registrar. It was submitted that there was no charge of the Applicant acquiring any material gains in the process of revival of defunct societies or that he acted from corrupt motive. There was no allegation that the Applicant tried to give undue favour to anyone and that he acted recklessly and in a grossly negligent manner.
6. It was also contended that the Applicant was facing a criminal trial and issues before the court were complex in nature and involved determination of complicated questions of fact and law. In the circumstances the Respondents were not justified in ordering departmental proceedings against the Applicant. The Applicant would be compelled to disclose his case even before the prosecution had stated its own case in the criminal trial and thus he would be deprived of a fair and just trial.
7. It has been contended that the Applicant has acted as per the provisions of the Delhi Cooperative Societies Act and Rules. It was argued that there was no provision in the above mentioned Act and Rule for deputing Area Inspector for physical verification. Under Section 40 of the Delhi Cooperative Societies Act, entries of the list of members of share-holders kept with any Cooperative Society is prima facie evidence of the particulars entered in that register with respect to the date on which the name of any person is entered in the register, who becomes a member or ceases to be a member. It was, therefore, patently wrong on the part of the Respondents to allege that he had knowingly ignored the contents of the note put up by the dealing hand recommending physical verification of the information provided by the Society. A legitimate action performed by a quasi-judicial authority could not be questioned even though it might result in benefit to a person, contended the learned senior counsel for the Applicant. The contents of the impugned Memorandum of Charge did not disclose any misconduct committed by him. The Applicant carried out certain acts in discharge of his quasi-judicial powers as Registrar of Cooperative Societies. He was legally bound to decide every application made to him under the provisions of the Delhi Cooperative Societies Act and could not abdicate his responsibilities. In order to commit misconduct there should be some impropriety in the actions of the Applicant and element of unlawful behaviour and wilful disregard of the law. Errors of judgement would not constitute misconduct and these would have to be corrected in a higher judicial forum. The Respondents never challenged the order passed by the Applicant before the appellate authority, which showed that the order passed by the Applicant was correct and proper.
8. It was further argued that the Respondents had completely failed to account for the delay in issuing the Memorandum of Charge highly belatedly. Such action of the Respondents had caused serious prejudice to the Applicant inasmuch as he would not be able to recall the events from such distant past.
9. The Respondents have opposed the cause of the Applicant on the ground that the action had been initiated against the Applicant on the direction of the Honourable Delhi High Court and the CVC.
10. We have given our utmost consideration to the arguments of the learned counsel for the parties and perused the pleadings in the OA and the counter reply of the Respondents. We have also minutely perused the records placed before us, including the file number 14033/5/08 II of the Ministry of Home Affairs.
11. Mainly the following arguments have been advanced on behalf of the Applicant during the course of submission:
(a) the reason for delay in issuing the charge sheet has not been explained by the Respondents and the delay has prejudiced the defence of the Applicant;
(b) a criminal case and disciplinary proceedings cannot be simultaneously pursued against the Applicant especially when the charges against the Applicant in the criminal proceedings were complex and involved interpretation of complicated facts and law;
(c) the Applicant has been discriminated against because no action has been taken against two other officers, who were working as Registrars of Cooperative Societies during the period of the alleged scam and criminal trial is going on against them; and
(d) the Applicant could not be proceeded against departmentally because he passed the order, which is alleged to be irregular, as quasi-judicial authority.
12. Usually in judicial review the Tribunal should not interfere with the Memorandum of Charge and let the inquiry proceed. Delay in issuing the charge sheet can be one ground for interference, but it is subject to condition that it would depend on the facts of each and every case. If the reasons for delay could be reasonably explained, there would be no need for interfering with the Memorandum of Charge. It is unfortunate that the Respondents have not made any attempt to explain the reasons for delay, which are not far to seek. Normally, we would have accepted the contention of the Applicant that the Memorandum of Charge should be quashed because the long delay in issuing the same had not been explained and the Respondents had not even answered the contention raised in paragraph 5 F of the OA about the delay in issuing charge sheet causing prejudice to the Applicant. However, the charges against the Applicant are serious and also since the delay is so obviously explained by the facts of the case, we are rejecting it. The matter regarding the alleged irregularities came to notice on the Writ Petition (Civil) number 10066/2004 being filed before the Honourable Delhi High Court. The High Court directed in the year 2006 that enquiry into the matter should be made. The CBI completed this inquiry in the year 2008. A similar issue was considered by the Honourable Supreme Court in Food Corporation of India Vs. V.P. Bhatia, JT 1998 (8) SC 16. The Honourable Supreme Court has considered the facts and circumstance of this case to decide whether there was undue delay in serving Memorandum of Charge on the respondent. In this case the CBI was informed by the appellant that sub-standard crates had been supplied to the FCI. On investigation it was found that the crates supplied were indeed sub-standard and that it had caused loss of Rs. 13 lakhs. In its report submitted on 30.12.1988 the CBI recommended holding of disciplinary proceedings against the employees of the appellant-Corporation. Memorandum of Charge was served on the respondent in November 1990. V.P. Bhatia filed a writ petition before the High Court, which was allowed on the ground that the FCI should not have waited for the report of the CBI and should have initiated inquiry straightaway when the misconduct was discovered in the year 1987 itself. The High Court also observed that there was delay even after the submission of the report by the CBI in 1988 because the inquiry was initiated only in 1990. In paragraph 4 of its judgement the Supreme Court observed that:
"4. It is no doubt true that undue delay in initiating of disciplinary proceedings may cause prejudice to the employees concerned in defending himself and, therefore, the courts insist that disciplinary proceedings should be initiated with promptitude and should be completed expeditiously." (emphasis added).
However, it was observed in the same paragraph that:
"........ The question whether there is undue delay in initiation of disciplinary proceedings or they are being unnecessarily prolonged has to be considered in the light of the facts of the particular case."
In this case the appellant, FCI, brought it to the notice of the Supreme Court that Chapter III of Volume I of the Vigilance Manual of the CVC, as adopted by the appellant, mandated that once an enquiry is entrusted to the CBI, departmental inquiry should be kept in abeyance till such time as the investigation by the CBI has been completed. In the circumstances the Honourable Supreme Court held that the delay in serving the charge sheet was not unduly long. In State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SC 570, it was held that:
"But how long a delay is too long always depends on the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever, such the plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words the court has to indulge in the process of balancing."
In the instant OA before us, there was a case pending before the Honourable Delhi High Court. Directions were given in the year 2006. The inquiry would naturally have taken time as there were 135 cases before the CBI for inquiry. After submission of the report of the CBI on 31.07.2008, the matter had to be processed for sanction of prosecution, which was given on 05.06.2009. Advice of CVC had also to be taken for initiating departmental proceedings. In the light of these facts and considering that the charge against the delinquent officer is very serious, we are not inclined to interfere with the charge sheet on the ground that it has been served on him belatedly.
13. The issue regarding disciplinary proceedings being maintainable against the orders of quasi-judicial authority has been examined by the Honourable Supreme Court in several judgments. This Tribunal in its judgement in Kamal Kishore Dhawan Vs. the Secretary, Ministry of Finance and others, OA number 1179/2008 decided on 6th February 2009 comprehensively considered the various judgements of the Honourable Supreme Court including Union of India and others Vs. K.K. Dhawan, (1993) 2 SCC 56; Zunjarrao Bhikaji Nagarkar Vs. Union of India and Others, (1999) 7 SCC 409; Union of India and others vs. Duli Chand, (2006)5 SCC 680; Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, (2005) 3 SCC 241; Inspector Prem Chand Vs. Government of NCT of Delhi and others, (Civil Appeal number 1815/2007, decided on 05.04.2007); and Ramesh Chander Singh Vs. High Court of Allahabad and another, (2007) 4 SCC 247. It was observed that in K.K. Dhwan (supra) the Supreme Court distilled six instances, where an officer could be departmentally proceeded against while performing quasi-judicial functions:
Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
If there is prima facie material to show recklessness or misconduct in the discharge of his duty;
if he has acted in a manner which is unbecoming of a Government servant;
if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
if he had acted in order to unduly favour a party;
if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago though the bribe may be small, yet the fault is great. The Honourable Supreme Court also observed that:
instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated. It was also observed that the charged officer may submit all his pleas before the inquiry authority and the disciplinary authority, which would be considered on merit. In Zunjarrao Bhikaji Nagarkar (supra) an identical issue was considered by the Supreme Court. While quoting the above six instances from K.K. Dhawan's (supra) case, it was further observed that:
When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence. It was further held that:
A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated with mala fides. It was also observed that there should be some basis for the disciplinary authority to hold even prima facie that undue favour has been shown to a party. The matter was again considered by the Supreme Court in Duli Chand (supra). The said Duli Chand was punished on the ground that he had wrongly allowed claims for refund to a person on three different occasions. The Tribunal, where the order of punishment was challenged, relying on Zunjarrao Bhikaji Nagarkar (supra) held that disciplinary proceedings would not lie against an officer discharging quasi-judicial functions unless it was stated was established that some undue advantage had accrued to the said officer. The order of the Tribunal was confirmed by the High Court. The Honourable Supreme Court, however, considered the decision of the three-judge Bench in K.K. Dhawan and observed that the officer exercising quasi-judicial functions negligently or recklessly could be proceeded against departmentally. The instances noted in K.K. Dhawan were reproduced in this judgement also. It was also observed that the view taken in Zunjarrao Bhikaji Nagarkar (supra) was different from the view expressed in K.K. Dhawan (supra) and the decision in the latter case being of a larger bench, would prevail. The Tribunal then considered the judgements in Cholan Roadways Ltd (supra), Inspector Prem Chand and Ramesh Chander Singh (supra). It was observed that:
In Cholan Roadways (supra) which is judgment of a Bench consisting of two Honble Judges, the Supreme Court relied upon its judgment in Nagarkars case as well for granting the desired relief. In Prem Chand (supra), which again is by a Bench consisting of two Honble Judges, while granting the relief, the Apex Court placed reliance upon its judgment in Nagarkars case as well. Negligence simpliciter has not been held to be misconduct. The only difference, it appears to us between the judgment of the Honble Court in the case of the applicant himself [K. K. Dhawan (supra)] and Duli Chand, and its judgments in Nagarkar followed in Cholan Roadways and Prem Chand, is that whereas, in one set of judgments, i.e., K. K. Dhawan and Duli Chand gross negligence can also be a misconduct for which departmental enquiry can be held even if the charged officer was discharging functions in his quasi judicial capacity, whereas in Nagarkar, Cholan Roadways and Prem Chand, it would be culpable negligence of an officer which can be tested in a departmental enquiry. The two decisions in Cholan Roadways and Prem Chand, as mentioned above, are by Benches consisting of two Honble Judges, whereas the one recorded by the Honble Supreme Court in Duli Chand (supra) is by a Bench consisting of three Honble Judges. In the two later decisions referred to above, the decision in Duli Chand has not been considered. In the circumstances, as mentioned above, the decision of larger Bench has to be followed. However, the Honble Supreme Court in its judgment in Ramesh Chander Singh (supra), which is by a coordinate Bench consisting of three Judges, while granting the relief, has placed reliance upon Nagarkars case as well. After considering the facts of the case in Ramesh Chander Singh (supra), it was observed that:
While referring to the law laid down in Nagarkars case (supra), it was held, Of course, if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. The reading of the judgment and the observations made therein would indeed reflect that when it is a case of negligence, it ought to have some overtones or undertones of culpability. The charge against the Applicant is that he passed the orders for revival of the Palwell Cooperative Society in December 2000 on the basis of false and forged documents. The society had been wound up on 8th of October 1992 and put under liquidation under the Delhi Co-Operative Societies Act, 1972. A letter was submitted in June 2000 by the Secretary of the Society for its revival. The order for revival was passed without cross verification or checking of records. The advice of the dealing assistant for physical inspection and verification of the records was also ignored. The facts and circumstances of the case are such that the disciplinary authority cannot be faulted for holding prima facie that it was not simple negligence but an act for which the blame would lie on the Applicant also. It is not what is expected from a person of normal prudence to be not able to suspect that there could be something wrong in the sudden revival of a society, which had become defunct eight years back. It was imprudent to just rely on the documents produced by the Secretary of the Palwell Cooperative Society, without subjecting the claim to thorough investigation, including physical verification. Wrong revival of a Cooperative Society could lead to enormous undue advantage to the builder. Therefore, it would appear prima facie that the Applicant was culpable and had to answer for his actions before the inquiry authority and the disciplinary authority. We are unable to accept the argument that even in this case the Applicant would be immune from disciplinary proceedings because he was performing quasi-judicial function.
14. The issue regarding simultaneous criminal proceedings and disciplinary inquiry has been considered by the Honourable Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd and another, (1999) 3 SCC 679. After considering the case law in this matter, it was held that:
22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. Although the charge against the Applicant is of grave nature, but the Applicant has failed to show how complicated questions of law and fact are involved in this case so that the disciplinary proceedings should be stayed. The argument that the defence of the charged officer would be prematurely disclosed in the criminal case has not been held to be a ground by the Honourable Supreme Court order
15. We do not agree that merely because two other officers, who were holding the post of Registrar Cooperative Societies during the period of scam have not been proceeded against departmentally, although criminal cases are pending against them also would amount to discrimination against the Applicant and would be in violation of Article 14 of the Constitution. The charge against the Applicant is specifically about the revival of Palwell Cooperative Society and not about the general scam. It cannot, therefore, be said to be an act of discrimination.
16. Considering all the aspects of the case and the judicial pronouncements of the Honourable Supreme Court, we are of the view that the Respondents can proceed against the Applicant in departmental proceedings also, while a criminal case for the same cause of action, based on the same documents and set of witnesses, is also pending against him. The OA is dismissed. No costs.
( L.K.Joshi ) (V.K.Bali) Vice Chairman (A) Chairman sk