R.K. Sharma vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 911 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner is admittedly governed by the CCS (CCA) Rules, 1965. In the year 1998-99 he was posted as Superintendent of Police, CBI, Anti Corruption Branch, Jammu. Sh.S.P.S. Dutta was functioning under the petitioner as a Deputy Superintendent of Police, CBI, Anti Corruption Branch, Jammu. Both, petitioner as well as Sh.S.P.S. Dutta were charge-sheeted. Charge memo dated 15.1.2002 under Rule 14 of the CCS (CCA) Rules, 1965 was served upon Sh.S.P.S. Dutta. Charge-sheet dated 15.1.2002 under the aforesaid rule was served upon the petitioner.

2. Charge-sheet served upon the petitioner reads as under:-

"ARTICLES OF CHARGE AGAINST SH.R.K. SHARMA, THE THEN S.P. CBI ACB, JAMMU. NOW POSTED AS SP HEADQUARTER, NEW DELHI.

ARTICLE OF CHARGE NO.1

That the said Sh.R.K. Sharma while functioning as Superintendent of Police, Central Bureau of Investigation, Anti Corruption Branch, Jammu during the year 1998-99 committed gross misconduct in as much as he made unwarranted discrimination by making inconsistent recommendations for departmental actions on similar allegations against the booking clerks and train. Ticket Examiners who were found having excess/shortage amounts during surprise checks in their official duties for which they could not explain satisfactory.

And he thereby failed to maintain absolute integrity and devotion to duty and did such act which is unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of the CCS (Conduct) Rules, 1964.

ARTICLE OF CHARGE NO.2

That the said Shri R.K. Sharma while posted and functioning as SP CBI ACB Jammu during the year 1999 committed gross misconduct in as much as he without complaint of complainant Sanjay Sharma and without registration of case FIR No.RC.4/99 Jammu and without making entry in the general diary ordered DSP J.P. Singh for laying a trap to catch Shri Ashok Mehta, Chief booking Supervisor, Northern Railway, Jammu as bribe taker on 26.3.99 and the same was acted upon by Sh.J.P. Singh at his instance without verifying the genuineness of complaint of complainant Shri Sanjay Sharma.

And he thereby failed to maintain absolute integrity devotion to duty and exhibition conduct unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of CCS Conduct Rules, 1964.

ARTICLE OF CHARGE NO.3

That the said Shri R.K. Sharma while posted and functioning as aforesaid during the aforesaid period, committed gross misconduct in as much as he failed to supervise the trap done by Shri J.P. Singh, DSP to catch Shri Ashok Mehta, Chief Booking Supervisor, NR, Jammu as bribe taker. Due to which several defects occurred and case was found not fit for prosecution against Ashok Mehta.

And he thereby failed to maintain absolute integrity, devotion to duty and exhibition conduct unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of CCS conduct rules, 1964.

ARTICLE OF CHARGE NO.4

That the said Shri R.K. Sharma while posted and functioning in aforesaid capacity during the aforesaid period at aforesaid place committed further gross misconduct in as much as he prepared a letter addressed to Director, CBI to get the case RC.4(A)/99 Jammu against Ashok Mehta, returned back to Jammu Branch of CBI from Central unit, Delhi to conceal his misdoing and gave the same to Ashok Mehta, CBS for signing and sending the same to Director, CBI, Delhi.

And he thereby failed to maintain absolute integrity to duty and exhibited conduct unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of CCS Conduct Rules, 1964.

ARTICLE OF CHARGE NO.5

That the said Shri R.K. Sharma while posted and functioning in aforesaid capacity, during the aforesaid period, at the aforesaid place committed further misconduct in as much as after laying the trap on Ashok Mehta, Chief booking Clerk, he wrongly closed PE 4/9 against Shri Sanjay Sharma, booking Clerk to justify the aforesaid trap.

And he thereby failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of CCS Conduct Rules, 1964."

3. Charge-sheet served upon Sh.S.P.S. Dutta reads as under:-

"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI S.P.S. DUTTA, THE THEN DY. SP, CBI, JAMMU, PRESENTLY POSTED AT CBI, MDMA, NEW DELHI.

ARTICLE OF CHARGE NO.1

That the said Shri SPS Dutta while functioning and posted as Dy.Superintendent of Police, Central Bureau of Investigation, Anti Corruption Branch, Jammu during the year 1998-99 committed gross misconduct in as much as he made unwarranted discrimination by making inconsistent recommendations for departmental actions on similar allegations against the booking clerks and train Ticket Examiners who were found having excess/shortage amounts during surprise checks in their official duties for which they could not explain satisfactorily.

And he thereby failed to maintain absolute integrity and devotion to duty and did such acts which are unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of the CCS (Conduct) Rules, 1964.

ARTICLE OF CHARGE NO.2

That Shri S.P.S. Dutta while posted and functioning in his aforesaid capacity during the aforesaid period committed further misconduct in as much as he demanded and accepted Rs.1,00,000/- as illegal gratification from one Shri Ashok Mehta, an accused in case RC 4(A)/99-CBI ACB Jammu for getting him released on bail.

And he thereby failed to maintain absolute integrity and devotion to duty and did such act which is unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of CCS Conduct Rules, 1964.

ARTICLE OF CHARGE NO.3

That Shri S.P.S. Dutta while posted and functioning in his aforesaid capacity during the aforesaid period committed further misconduct in as much as he drafted a letter addressed to the Director, CBI, New Delhi praying on behalf of Shri Ashok Kumar Mehta accused in case RC 4(A)/99-CBI ACB Jammu for cancellation of transfer of his case (RC.4(A)/99 CBI Jammu) from CBI Jammu to Central Unit of CBI, N.Delhi and that he pressurised Shri Ashok Mehta to sign it and to send it to Director, CBI, New Delhi.

And he thereby failed to maintain absolute integrity and devotion to duty and did such act which is unbecoming of a public servant as laid down under rule 3(1)(i)(ii) & (iii) of CCS conduct rules, 1964."

4. Reply was filed by both to their respective charge-sheets. Considering the reply filed, disciplinary authority was of the opinion that an enquiry needs to be held. Vide order dated 18.10.2002, disciplinary authority directed that a joint enquiry would be held against the petitioner and Sh.S.P.S. Dutta.

5. Issue of separate or joint enquiry is regulated by Rule 18 of the CCS (CCA) Rules, 1965. Relevant portion of Rule 18 reads as under:-

"(1) Where two or more Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

Note: If the authorities competent to impose the penalty of dismissal on such Government servants are different, an order for taking disciplinary action in a common proceedings may be made by the highest of such authorities with the consent of the others."

6. The enquiry officer who was appointed to record evidence and submit the enquiry report held a preliminary hearing on 17.12.2002. He passed an order of even date, inter alia, directing:-

"Preliminary Hearing (PH) held today. It was observed from the two charge-sheets given to the two Cos that the articles of charge in respect of two officials are not similar and the listed documents and the listed state witnesses are also different for two officials. Both the COs and the PO have also requested for conduction of separate inquiry in view of the above. Accordingly, there is no point in going for common proceedings and as such from next time onward the proceedings will take place independently."

7. Since copy of the order passed on 17.12.2002 was sent to the disciplinary authority for taking appropriate decision, the disciplinary authority on consideration of the matter passed an order which was communicated to the Inquiry Officer under cover of letter dated 13.5.2003. Inter alia, following was the decision communicated.

" With regard to issue No.(i), the Disciplinary Authority has exercised his power under rule 18 of CCS (CCA) Rules and approved holding of common proceeding in respect of the two Charged Officers. The Government, thereafter, issued order No.221/4/2001-AVD.I dated 18.10.2002 directing that common proceeding should be instituted in the disciplinary action against the two Charged Officers S/Shri R.K. Sharma, SP/CBI and S.P.S. Dutta, DSP/CBI. Since the articles of charge are derived from the same event and both officers are from the same organisation, there is no scope for holding separate inquiries. The Inquiry Officer has no authority to decide separation of these proceedings."

8. Petitioner filed an application under Section 19 of the Administrative Tribunal Act, 1985 challenging the decision of the disciplinary authority requiring common proceedings to be held against the petitioner along with Sh.S.P.S. Dutta.

9. For record, we may note that there were 2 other issues pertaining to services of a defense assistant and supply of documents which was also raised before the Tribunal. We, in the present petition, were only required to deal with issue of common/joint proceedings against the petitioner and Sh.S.P.S. Dutta, the other two issues not being agitated at the hearing held on 31.8.2004.

10. Issue which was addressed at the oral hearing has been summarized in our order dated 31.8.2004 which reads as under:-

"31-08-2004

Present: Ms.Tamali Wad & Ms.Seema Pandey for the petitioner.

Ms.Jyoti Singh for the respondent.

WP(C) No.8233/2004

Petitioner wants a separate inquiry on the strength of the daily orders passed by the Inquiry Officer in the inquiry proceedings. The matter relates to interpretation of Rule 18 which only provides for two options. Tribunal interpreting Rule 18 has dismissed petitioner's OM.

Reserved for orders.

Sd/-

B.A. KHAN, J.

Sd/-

August 31, 2004

PRADEEP NANDRAJOG, J."

11. The Tribunal vide its judgment and order dated 11.11.2003 negated the challenge as laid by the petitioner. On the issue of common proceedings, the Tribunal has held that under Rule 18 of the CCS (CCA) Rules, 1965 it was permissible to direct common proceedings in any case where two or more government servants were concerned. The Tribunal has also held that the origin of the two charge-sheets was common. Two articles of charge were identical. Accordingly, it was held that decision of the disciplinary authority in directing common proceedings could not be faulted with.

12. A perusal of the Articles of Charge against the petitioner and Sh.S.P.S. Dutta would reveal that Article of Charge No.1 is common to both. Similarly, Article of Charge No.4 pertaining to the petitioner is identical to the Article of Charge No.3 framed against Sh.S.P.S. Dutta.

13. The third Article of Charge being Article of Charge No.2 against Sh.S.P.S. Dutta would reveal that the misconduct alleged against him is of demanding illegal gratification from Sh.Ashok Mehta, an accused in case RC4(A)/99/CBI ACB Jammu for getting him released on bail. Article of charge No.2, 3 and 5 against the petitioner pertains to same Sh.Ashok Mehta. The charges relate themselves to acts of omission and commission allegedly committed by the petitioner pertaining to the same incident. If established, the said Articles of Charge would show that effect of what was done by the petitioner was beneficial to said Sh.Ashok Mehta.

14. Ms.Tamali Wad, learned counsel appearing for the petitioner laid emphasis on the fact that evidence pertaining to Article of Charge No.2 against Sh.S.P.S. Dutta would be of no relevance as far as the petitioner is concerned but said evidence would prejudice her client as the entire mass of evidence against her client as well as Sh.S.P.S. Dutta would be presented for consideration at the end of the enquiry. She contended that the possibility of the presenting officer seeking to sweep within the dragnate her client on basis of evidence against Sh.S.P.S. Dutta cannot be ruled out.

15. Submission as made by the counsel for the petitioner shows that in effect, grievance was not that under Rule 18, common proceedings could not be held. Grievance in fact was that prejudice would be caused to the petitioner if a common proceeding was allowed to be conducted.

16. If argument of learned counsel for the petitioner is to be accepted, each case of conspiracy would require separate trials. Whenever persons act in league or in concert, overlapping evidence is bound to surface. It is for this reason that law requires evidence to be segregated in relation to each accused and evaluated separately.

17. To our mind, what is relevant for adjudication of the present dispute is whether facts on record attract Rule 18 of the CCS (CCA) Rules,1965.

18. Rule 18 is attracted where 2 or more government servants are concerned in any case. Two or more government servants would be concerned with a case where the relevant facts in one case are inter-linked to each other. This inter-linkage need not be like a web extending to all the charges. Even if one or two Articles of Charge are common, it would be enough to fall within the expression "are concerned in any case", to attract Rule 18.

19. The charge-sheets against the petitioner and Sh.S.P.S. Dutta centre around acts of commission and omission pertaining to a trap laid qua one Ashok Mehta, Chief Booking Clerk in the Railways. They pertain to the same incident and for subject matter of the same FIR. It cannot, therefore, be said that petitioner and Sh.S.P.S.Dutta "are not concerned in the same case" as contemplated by Rule 18.

20. Apprehension of the petitioner at this stage of prejudice is unfounded. If after enquiry it is brought out that certain incriminating evidence indicts only S.P.S. Dutta and not the petitioner, surely, this could be highlighted either to the enquiry officer or to the disciplinary authority. The evaluation of evidence at a domestic enquiry is to be made qua the charge against the delinquent and it is not the evidence of one charge against one delinquent can be used to return a finding against the other. There is very little or remote chance of a mix up and in that event it could be always brought to the notice of the disciplinary authority to prevent any prejudice being caused to delinquent. If in spite thereof, disciplinary authority acts on impermissible or inadmissible evidence against the delinquent, it would furnish a further ground for initiating action to challenge the final penalty order. Today, no stand can be predicated on the submission that possibility of a prejudice being caused cannot be ruled out.

21. We find no merit in the writ petition.

22. The same is dismissed.

23. No costs.