Uoi , Through Secretary, Ministry ... vs M.L. Sharma
2010 Latest Caselaw 1519 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 WP(C) No.10110/2009


%                              Date of Decision: 18.03.2010


UOI , through Secretary, Ministry of Corporate        .... Petitioner
Affairs
                   Through Mr. H.K. Gangwani, Advocate.


                                       Versus


M.L. Sharma                                                   .... Respondent
                            Through A.K.Bhardwaj Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  NO
3.     Whether the judgment should be reported                 NO
             in the Digest?



ANIL KUMAR, J.

* The petitioner, Secretary, Ministry of Corporate A f fairs has

challenged the order dated 6th March, 2009 passed by the Central

Administrative Tribunal, Principal Bench in OA No. 1738/2007 titled M.L.

Sharma Vs. Union of India allowing the original application of the

respondent and setting aside the order dated 20th September, 2006

whereby major penalty of compulsory retirement was imposed upon the

respondent and holding that as the applicant has already attained the age

of superannuation, he would be deemed to be in service from 20th

September, 2006 till he retired on superannuation and shall be entitled for

all the consequences and retiral benefits in accordance with rules.

Brief facts to comprehend the disputes are that the respondent

joined as an Assistant in Department of Company Af fairs on 23rd

December, 1968. He was appointed to the post of Joint Director (Legal) on

7th August, 1990 in the of fice of Regional Director, Bombay on selection

and he held various positions. However, before his superannuation,

Disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 were

initiated on the ground that he had indulged in transaction of immovable

property of Rs. 1 lac without reporting it and that he made additional

construction in the house inherited from his father to the extent of Rs.

9,67,645/- without reporting to the prescribed authority and that he did

not informed about his relatives being shareholders of one company M/s.

Janthal Agro Foods (P) Ltd. and he made transactions as members of Hindu

undivided joint family and he was fond in possession of disproportionate

assets known to legal sources of his income.

Pursuant to departmental proceedings initiated against the

respondent, the inquiry was conducted by Central Vigilance Commission.

The Inquiry Of ficer did not find any charges proved against the

respondent, however, on consultation with CVC, major penalty was

recommended and the Disciplinary Authority issued a disagreement note by

memorandum dated 18th May, 2004, disagreeing on the articles of charges

I, I I, I I I and V and thereafter, after consultation with UPSC, the penalty

of compulsory retirement, two months be fore the age of superannuation

was imposed on the respondent.

The respondent challenged the order of the Disciplinary Authority

by filing an original application, inter-alia, on the ground that the

disagreement note was based on extraneous consideration as no evidence

was adduced in respect of any of the charges and the Disciplinary

Authority had also imputed his own knowledge and misinterpreted the rules.

I t was also asserted that no cogent evidence was adduced by the petitioner

to bring the case of the respondent within the ambit of misconduct as

defined under Rule 18 of CCS (CCA) Rules, 1965. Regarding the article of

charges, it was asserted that Rs. 1 lac was handed over to him by his family

members and even that amount was not in the name of the respondent and

consequently, the disagreement note was apparently on account of non-

application of mind. Regarding acquisition of property and the addition

alteration carried out in the same to the extent of Rs. 9,67,645/-, it was

pleaded that on the basis of a Will of executed by his father, the rights in

the property were not transferred during the lifetime of the executants

of the Will and in any case the addition alteration in the property was

carried out by his brother who had incurred the expenditure and not by

the petitioner. It was specifically asserted that there was no proof

produced by the petitioner that the construction cost was incurred by the

respondent and the inferences of the petitioner were based on surmises

and conjectures. Regarding the relatives of the respondent being the

employees of the company, it was contended that his daughter was only a

Director and so she was not an employee and he could not be held guilty of

violation of Rule 4 of CCS (Conduct) Rules.

The respondent categorically averred that regarding

disproportionate assets in terms of Article 5 of charge, there was no

evidence and Inquiry Of ficer had dropped the charge, however without any

application of mind and without any cogent reason and evidence the

Disciplinary Authority issued the disagreement note without justifying as

to how he had assets disproportionate to his income.

On the basis of expenditure incurred by the brother of the

respondent on the property of the father and a two wheeler in the name of

the daughter of the respondent valuing about Rs. 37,000/-, it could not be

held that the respondent possessed about Rs. 30 lacs and his assets were

disproportionate to his sources of income.

The punishment of compulsory retiring the respondent of two

months before his normal superannuation was also stated to be in violation

of the Rules and in the circumstances, there was no misconduct established

against the respondent and it was a case of no evidence and consequently,

no punishment could be awarded.

The petitioners had contested the original application filed by the

respondent under Section 19 of the Administrative Tribunal Act, 1985, on

the ground that the Tribunal should not substitute its own inferences with

the inferences drawn by the Disciplinary Authority. According to the

petitioner, the disagreement arrived at was a reasoned one and it was after

consideration of the pleas the contentions of the respondent and reasoned

order has been passed.

The Tribunal after consideration the pleas and contentions,

noted that though in any disciplinary proceedings, the inferences of the

Tribunal is limited but is not absolutely restricted and the Tribunal can

inter fere in case of no misconduct and if the findings are based on no

evidence and if the inferences arrived at are without application of mind

merely on assumptions and surmises and conjectures, then the Tribunal

must inter fere and should set aside such orders.

The Tribunal also considered all the charges including the findings of

the inquiry of ficer and the disagreement note and has held that in the case

of the respondent, there is no evidence to make out the misconduct

against him and thus set aside the order of punishment of compulsory

retirement which was imposed two months before the date of

superannuation of the respondent.

The learned counsel for the petitioner has produced a summary of

the findings of the Inquiry Of ficer, disagreement by the Disciplinary

Authority, reply given by the charged of ficer to the disagreement and the

decision of the Disciplinary Authority. We have perused the summary

produced by the petitioner as well as the relevant pleadings and the

documents.

The misconduct alleged against the petitioner is violation of Rule 18

of CCS (Conduct) Rules, however, this has not been disputed that as per

Government of India's Decision No. 8 (2) (iv) the transactions as members

of Hindu undivided joint family do not require Government's prior

permission. The learned counsel for the petitioner has not been able to

re fute that the letter dated 3rd April, 2001 acknowledged an amount of Rs.

1 lac given to Sh. Akhilesh Sharma as the amount which did not belong to

the respondent and this amount was the share of his nephew Master Giriraj

Kumar Sharma, which was given by the grandfather Sh. Swalal Sharma.

The amount was given by the respondent to master Giriraj Kumar Sharma

as the father of master Giriraj Kumar Sharma had expired and he had to

be looked after. The learned counsel is also unable to deny that there is no

evidence to show that six promissory notes worth Rs. 1 lac were in the

name of the respondent and the cheque issued with the blank names do not

show that they were in the account of the respondent. The Tribunal has

also noticed that since no transaction of immovable property had taken

place and the money belonged to master. Giriraj Kumar Sharma which had

passed through the respondent for his nephew master Giriraj Kumar

Sharma, no misconduct is made out nor it can be attributed to the

respondent. Despite these facts, in answer to the Court's queries to the

learned counsel, no cogent evidence has been disclosed by the petitioner on

the basis of which Article of charge can be established against the

respondent. It is not a case where there is evidence which can be

interpreted in dif ferent manner. The case of the respondent is where

there is no evidence in support of article of charges alleged against him.

I t is true that the jurisdiction of the Tribunal in judicial review is

limited. Disciplinary proceedings, however, being quasi-criminal in nature,

there should be some cogent and reliable evidence to prove the charges.

Although the charges in a departmental proceeding are not required to be

proved like a criminal trial i.e. beyond all reasonable doubt, but one cannot

loose sight of the fact that the enquiry of ficer performs a quasi-judicial

function, who upon analyzing the evidence and documents must arrive at a

conclusion that there had been a preponderance of probability to prove the

charges on the basis of materials on record. While doing so, he cannot take

into consideration any irrelevant fact. He cannot re fuse to consider the

relevant facts. He cannot make his own assumptions. He cannot shift the

burden of proof. He cannot reject the relevant testimony of the witnesses

only on the basis of surmises and conjectures. He cannot enquire into the

allegations with which the delinquent of ficer had not been charged with nor

he can introduced his personal knowledge of the facts which have not been

proved.

The learned counsel for the petitioner regarding second Article of

charge of Acquisition of property by Will and spending an amount of Rs.

9,67,645/- has not been able to dispute that the rights in an immovable

property will not be transferred to the beneficiary during the lifetime of

the executant of the Will. The respondent merely being a bene ficiary and

the executor of the will did not require any right in the property of the

father during his lif e time. The petitioners have not established by

producing any document that the expenditure was incurred on additional

construction on the property of the father by the respondent. The

inferences of the Disciplinary Authority are based on the assumption that

since under the Will, respondent was a beneficiary, there fore, the

construction must have been done by the respondent. The legal ownership

of the property did not vest in the name of the respondent and the

proposition relied on by the disciplinary authority is contrary to law. The

inferences of the Disciplinary Authority are also based on no evidence.

The learned counsel for the petitioner is unable to show any evidence to

show that the amount for additional construction was spent by the

respondent.

The learned counsel for the petitioner cannot dispute that if there

is no evidence or has been shown to establish the charges against the

respondent, a fortiori the inferences then are based on the assumption and

surmises and conjectures. Since the respondent is the beneficiary under

the Will, there fore, the construction must have been done by the

respondent is nothing but a surmise and conjecture and on the basis of

such an assumption, compulsory retirement of the respondent two months

before the date of his superannuation could not be justified and the

findings of the Tribunal cannot be faulted nor it can be said that the order

of Tribunal suf fer from such illegality or irregularity which would require

inter ference by this Court.

In the circumstances, there cannot be any doubt that the inferences

of the Disciplinary Authority are unsustainable and are contrary to law and

are based on no evidence and are result of mere suspicion and assumption

made by the Disciplinary Authority. The findings of the Tribunal in the

facts and circumstances that none of charges were established against the

respondent cannot be faulted.

Regarding the charge of disproportionate assets, the only

disproportionate asset is alleged to be cost incurred in the construction of

a portion of the property and two wheeler vehicle valuing about

Rs.37,000/- in the name of the daughter of the respondent.. As has

already been held there is no evidence that the cost of construction was

borne by the respondent, rather there is categorical statements by the

respondent that the cost was incurred by his brother and consequently, the

disagreement note by the Disciplinary Authority was completely without

application of mind and without any evidence and even the inference that

the respondent has income disproportionate to his assets is also based on

no evidence. The learned counsel for the petitioner is also unable to show

any such facts and evidence which will show that the respondent has such

assets which are disproportionate to his sources of income.

Perusal of the disagreement note and the reply regarding Article 5

rather re flects that even the pleas and contentions raised by the

respondent have not been considered by the Disciplinary Authority. The

Inquiry Of ficer had dropped the charge of disproportionate assets on the

ground that Rs. 1 lac given by the respondent to Sh. Akhilesh Chauhan did

not belong to him and the cost of additional construction of property

bearing A-112, Pratap Nagar, New Delhi was not done by the charged

of ficer but his brother and the Kinetic Honda vehicle in the name of the

daughter of respondent Ms. Bhavne was valued at Rs. 37,000/-, which was

purchased out of the pin up monies given to her and the gifts received by

her from other relatives. The Disciplinary Authority in his disagreement

only indicated that in view of the facts as stated by the inquiry of ficer,

which were dropped by him, the charge stood proved to the extent of

undisclosed investment made in the construction of the property. The

respondent had categorically raised the plea in his reply to the amount

spent on the portion of the property in possession of his brother amounting

to Rs. 22,382/- which could not be accounted properly. However, the same

cannot be treated as substantial amount over a period of four years

specially when the charged of ficer had earned over Rs. 5 lacs during the

said period. The cost of construction incurred by the brother of the

respondent was fully explained and the money was accounted for and in the

circumstances, the orders of the disciplinary authority could not be

sustained.

Learned counsel for the petitioner has not been able to show

any grounds to dif f er with the decision of the Tribunal in respect of

Article No. 5 that the petitioner had disproportionate income to the known

sources of income nor it has been proved in the facts and circumstances.

The learned counsel for the petitioner has also not been able to

dispute that daughter of the respondent being a Director of the company

cannot be held to be an employee so as to convene the requirement of Rule

4 of the CCS (Conduct0 Rules. I f that be so, the Rule does not apply nor

its violation can be imputed to the respondent. The learned counsel also

has not been able to show that if a relative of an employee is not in

employment on any company and have some other fiduciary relationship,

then also the intimation has to be given to the concerned authority and

prior permission has taken from them on the basis of any Rule or of fice

memorandum. In the circumstances, the finding of the Tribunal that even

said charge has not been established and consequently, no misconduct has

been established against the respondent cannot be faulted.

Since the petitioners have failed to establish any misconduct against

the respondent, it will not warrant any punishment especially compulsory

retirement two months before the age of superannuation.

In the circumstances, this Court finds no ground to inter fere with

the order of the Tribunal in setting aside the punishment order which was

based on no evidence and appears to be outcome of assumptions drawn by

the Disciplinary Authority, which were also contrary to law.

The Tribunal has also held that the respondent had been prejudiced

and deprived of a reasonable opportunity as his defense had not been

considered which reflects non application of mind by the Disciplinary

Authority. The Tribunal has observed that though the order of the

Disciplinary Authority ran into 18 pages, however, there was no reasons in

support of inferences drawn by the Disciplinary Authority and the order

was rather a bald one without application of mind.

Since on consideration of all the Articles of charges, this Court is of

the opinion also that Articles of charge have not been proved against the

respondent as there is just no cogent and reliable evidence and the

inferences of Disciplinary Authority were based on assumptions which are

also contrary to law. The point that the respondent was prejudiced on

account of no reasonable opportunity given to the him was not challenged in

detail by the learned counsel for the petitioner.

In the sum and substance, this Court does not find any such illegality

or irregularity in the order of the Tribunal dated 6th March, 2009, which

shall require inter ference by this Court in the exercise of its jurisdiction

under Article 226 of the Constitution of I ndia.

The Tribunal by order dated 6th March, 2009, had directed the

petitioners to comply with the order within two months. Though, the two

months time was granted from the date of receipt of the order, however,

the present writ petition was filed by the petitioners on 21st May, 2009,

and the objections were finally removed and petition was re-f iled on 14th

July, 2009 and it came up for hearing on 15th July, 2009.

While considering the petition, the order dated 6th March, 2009 was

not stayed and thereafter, the matter has been adjourned from time to

time at the request of the counsel for the petitioner. Though, the order

impugned before us dated 6th March, 2009 was not stayed, yet it was not

complied with. The learned counsel for the petitioner has sought more

time to comply with the order, however, in the peculiar facts and

circumstances of this case, this Court declines to grant further time to

the petitioners to comply with the order. The order should be complied

with forthwith in the facts and circumstances.

In the circumstances, the writ petition is without any merit and it is

therefore dismissed. The parties are, however, left to bear their own

costs.

ANIL KUMAR, J.

MARCH 18, 2010                                      MOOL CHAND GARG, J.


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