Delhi High Court

Union Of India & Ors. vs Sh.R.K.Mehta on 16 May, 2011

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.6863/2010

%                       Date of Decision: 16.05.2011

Union of India & Ors.                                   .... Petitioners

                     Through Mr.Anuj Aggarwal & Mr.Gaurav
                             Khanna, Advocates

                                Versus

Sh.R.K.Mehta                                           .... Respondent

                     Through Mr.N.S.Dalal, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

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

ANIL KUMAR, J.

1. The petitioners, Union of India, through the Ministry of Home

Affairs (IB) & Ors.‟, have challenged the order dated 19th August,

2010 passed by the Central Administrative Tribunal, Principal

Bench, New Delhi in OA No.920 of 2009, titled as „Sh.R.K.Mehta v.

Union of India, through the Ministry of Home Affairs (IB) & Ors.‟

allowing the original application of the respondent and holding that

the punishment of dismissal from service imposed on the respondent

is disproportionate to the proved misconduct of not informing the

petitioners about taking loans from 11 different banks, and thus,

setting aside the order of punishment dated 29th January, 2008

passed by the Disciplinary Authority and order dated 10th October,

2008 passed by the Revisional Authority and thereafter remitting the

matter to the Disciplinary Authority, with the directions to grant an

opportunity of hearing to the respondent against the imposition of

minor penalty in accordance with law. The petitioners were also

directed to reinstate the respondent to the post which he was holding

at the time of his dismissal from the service and to grant all

consequential benefits as per law. The petitioners were also given the

opportunity to determine the back wages from the date of the

respondent‟s dismissal from the service, up to the date he joins the

service on reinstatement.

2. Brief facts to comprehend the disputes are that, the

respondent who was formerly working as an ACIO-II/G of the

Strategic Intelligence Bureau, (S.I.B) at Sriganganagar was issued

the Charge Memo dated 10.01.2006 on the ground that he had taken

loans from 11 different banks without intimation and prior

permission from the department. The respondent was charge sheeted

for violating the Rule 3(1) (iii), Rule 17 & 18 (3) of the CCS (Conduct)

Rules, 1964.

3. The respondent served his written reply incorporating his

defense on 17.07.2006 and again on 10.08.2006 and refuted the

charges. He had also sought a personal hearing and requested the

details of certain relevant documents, which were not supplied to

him. The respondent had also specified in his written statement that

the charges were not covered under Rule 14 of the CCS (CCA) Rules

1965, which is why he had even sought for the withdrawal of the

Charge Sheet. Suring the enquiry proceedings by letter dated 9th

April, 2007 the Enquiry Officer, Shri H.M.Singh, Assistant Director,

Sriganganagar, was replaced by Shri P.R. Bishnoi, Assistant

Director, Sriganganagar, who, according to the respondent,

completed the enquiry in one day. It was also contended that the

enquiry was not conducted in accordance with law and that the

Inquiry Report was given on the basis of alleged admissions of the

respondent. The enquiry officer submitted his report on 24th August,

2007 stating that the respondent had admitted his guilt on the basis

of admissions made during the enquiry proceeding`, which were

denied by the respondent.

4. On receipt of copy of the Inquiry Report, the respondent

submitted his reply dated 3rd October, 2007 however, the

Disciplinary Authority held him guilty of the charges made against

him and dismissed him from service by order dated 29th January,

2008.

5. Aggrieved by the order of the Disciplinary Authority dated 29th

January, 2008, the respondent filed an appeal before the Joint

Director and also with the Director, IB on 8th July, 2008 which was

disposed of by the Revisional Authority, by order dated 10th October,

2008 rejecting his appeals and the revision petition.

6. The orders passed by the Disciplinary Authority and the

Revisional Authority were challenged by the respondent before the

Central Administrative Tribunal by filing an Original Application

under Section 19 of the Administrative Tribunal Act, 1985

contending inter-alia that the Enquiry Officer had conducted and

completed the enquiry in one day, without following proper

procedure as contemplated in Rule 14 of the CCS (CCA) Rules, 1965.

It was categorically asserted that no evidence was produced against

the respondent and that the Enquiry Officer had put only three

questions to the respondent and on the basis of the reply given, the

enquiry officer concluded the enquiry and recorded that the

respondent had admitted his guilt and as such also held that the

charge was proved against him. It was also asserted that the

Disciplinary Authority as well as the Revisional Authority did not

consider the representations made by the respondent. The plea of

disproportionate punishment was also raised and substantiated by

relying on various other cases, wherein the employees had not

intimated the employer before taking loans, however, minor

punishments were imposed on them. Reliance was also placed on

Rule 18 (3) of the CCS (Conduct) Rules, 1964 to contend that the

employee was liable to give the details of the loans already taken by

him at the time of appointment and was not liable to give details of

the loans taken subsequently after employment.

7. The respondent also contended that on account of taking loans

from the bank he was issued two other charge sheets and all the

charge sheets were more or less the same. It was also contended that

the Charge-Memo issued against him in the year of 2005 should

have been dropped before issuing the fresh charge sheet, which had

been challenged by him on the same set of allegations.

8. The OA filed by the respondent was contested on behalf of the

petitioners contending inter-alia that the respondent had taken loans

from 11 banks without intimation or prior permission. It was also

contended that the respondent became a habitual indebtor, and

therefore, acted in a manner which was unbecoming of a

Government Servant, and thus violated Rule 17, Rule 3(1) (iii) and

Rule 18 of the CCS (Conduct) Rules, 1964. On behalf of the

petitioners, 25 documents were relied on which were refuted by the

respondent on the ground that copies of the same were not supplied

to him. On behalf of the petitioners, it was also contended that the

respondent had also submitted a forged letter of confirmation dated

6th June, 2003 for obtaining a personal loan of Rs. 90,000/-and that

he had remained unauthorisedly absent w.e.f. 13th September, 2004

and also that 13 attachment orders from various Courts were

received against the respondent, for having availed the loan from

those banks.

9. The Tribunal considered all the pleas and contentions of the

parties, and took note of the Charge-Memo dated 10th January, 2006

which was the subject matter before the Tribunal. The article of

charge which was framed against the respondent in the Charge-

Memo dated 10th January, 2006 is as under:-

"That the said Shri R.K.Mehta, ACIO-II/G while posted at IB Hqrs., New Delhi took loans from the under mentioned banks without any intimation to/prior permission from the department as required under the rules. He also did not refund, in full, the loans advanced to him:

(i) Loan of Rs.50,000/- on 22.7.2004 from Punjab & Sindh Bank, Gole Market, New Delhi.

(ii) Loan of Rs.1,00,000/- from the Canara Bank, DDA Shopping Complex, Defence Colony, New Delhi 110024.

(iii) Loan of Rs.75,000/- from the Canara Bank, Raja Garden, New Delhi.

(iv) Loan of Rs.43,200/- on 17.3.2003 from the Indian Overseas Bank, 1/209, Sadar Bazar, Delhi Cantonment, New Delhi 110010.

(v) Loan of Rs.80,000/- on 1.1.2004 from the Bank of Baroda, Rajori Garden, Najafgarh Road, New Delhi 110027.

(vi) Loan of Rs.80,000/- on 23.2.2004 from the Bank of Baroda, Chowk Pahargunj, New Delhi 110055.

(vii) Loan of Rs.84,000/- on 17.6.2004 from State Bank of Indore, M-94, Connaught Circus, New Delhi 110001.

(viii) Loan of Rs.80,000/- on 5.12.2003 from the Bank of Baroda, C-1 Shopping Centre, Vacant Vihar, New Delhi 110057.

(ix) Loan of Rs.95,000/- on 25.7.2003 from the Vijaya Bank, Delhi Cantt.-10

(x) Loan (amount not specified0 from the Canara Bank, Karol Bagh, New Delhi.

(xi) Loan of Rs.80,000/- from the Canara Bank, Hauz Khas, New Delhi.

Thus, by not giving intimation to/taking prior permission from the competent authority about the aforesaid transactions, Shri R.K.Mehta, ACIO-II/G has violated Rule 18(3) of the CCS (Conduct) Rules, 1964. Further, by taking loans frequently and failing to refund the same in full, he has involved himself in habitual indebtedness and has also acted in a manner unbecoming of a Govt.servant thereby violating Rule 17 and Rule 3 (1)

(iii) of the CCS (Conduct) Rules, 1964."

10. The Tribunal also noted that the enquiry was conducted in

three days and only three questions were put to the respondents

which were „whether the respondent had taken 11 loans?‟ which was

admitted by the respondent. In the answer to another question,

regarding whether he intimated the department or whether he took

permission before taking the loans, the respondent replied that he

did not know about it. The third question put to him was whether he

wants to say anything, to which the respondent had replied that he

does not want to say anything else. On the basis of these three

answers, the Enquiry Officer held that the charge against the

respondent was made out.

11. The Disciplinary Authority relied on the report of the Enquiry

Officer and held that the respondent had not managed his private

affairs so as to avoid habitual indebtedness, and therefore, imposed

the penalty of dismissal from service.

12. The Tribunal relied on various precedents of the Supreme

Court and inferred that generally the Tribunal should not interfere

with the decision of the authorities in the matter of disciplinary

proceedings unless the proceedings are found to be suffering from

procedural illegality, statutory impropriety and infirmity. The

grounds on which the Tribunal culled the guiding principle for

interfering with the findings and orders of the disciplinary authority

are as under:-

" The Tribunal cannot interfere with the findings of the inquiry officer which is based on evidence and substitute its own independent findings.

When the findings of the disciplinary authority of the appellant authority are based on some evidence, the Tribunal cannot re appreciate the evidence and substitute its own findings.

Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made.

When an enquiry is conducted on the charges of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered to determine- Whether the inquiry was conducted by the competent officer? Or- Whether rules of natural justice have been complied with? Or -Whether the findings/conclusions are based on some evidence or no evidence to reach a finding/conclusion? Or-Whether the mode of inquiry is in violation of statutory rules? Or- Whether the findings are arbitrary or utterly perverse.

Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings including the notes of disagreement.

When the inquiry officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty or otherwise of the charge.

The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding is based on the same.

In case of an appeal, the appellate Authority has co- extensive power to re appreciate the evidence and the nature of punishment and the appellate order is to be passed as expeditiously as possible.

The Tribunal can interfere with the decision of the disciplinary/appellate/reversion authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards.

The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant place of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.

The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets or does not meet the requirement of burden of proof, namely preponderance of probability.

13. The Tribunal held that the enquiry officer had not put any

question on the component of charge relating to the respondent‟s

habitual indebtedness. The Tribunal had also held that the

respondent was not charged under Rule 18 (1) (i) (d) but under Rule

18 (3) of the CCS (Conduct) Rules, which only contemplates prior

permission or subsequent intimation for certain transactions to the

competent authority. The charges were not for habitual indebtedness

of the respondent. In the circumstances, it was also held that taking

loans from 11 banks is not a misconduct, as credit worthiness of the

respondent must have been ascertained and checked by the banks

prior to sanctioning the loan, and that the only alleged misconduct

on the part of the respondent is not intimating or taking prior

permission from the petitioners. It was also noticed that the Inquiry

Report does not reveal anything about the habitual indebtedness of

the respondent, nor could it deal with this aspect, as the basis of the

Inquiry Report was the alleged admission of the respondent and the

respondent had not admitted anything regarding his alleged habitual

indebtedness. This was also considered that though three charge

sheets were issued, however, the enquiry was conducted only

pertaining to charge sheet dated 10th January, 2006 where the

allegations were regarding not taking prior permission or intimating

the employer regarding the taking of 11 loans by the respondent. The

Tribunal has also considered that the charges framed in other charge

sheets could not be extrapolated to the charge sheet dated 10th

January, 2006 as the enquiries pursuant to the other two charge

sheets were not conducted nor the charges framed in the other

charge sheets were admitted by the respondent, and, therefore, there

are no findings regarding the alleged forged letter of confirmation and

forged undertakings or the respondent remaining absent

unauthorisedly.

14. In the facts and circumstances, the Tribunal held that the

major penalty of dismissal from service could not be imposed for the

alleged misconduct of not intimating the employer regarding the 11

loans taken by the respondent. Regarding the other charges, neither

was any enquiry conducted nor were the charges proved. Even the

charge of habitual indebtedness could not be established on the

basis of the alleged admission of the respondent and thus Inquiry

Report regarding the allegation of habitual indebtedness was without

any evidence and basis and thus the Tribunal set aside the

punishment order of dismissal from services, holding it to be

disproportionate to the allegations established against the

respondent on the basis of his alleged admission.

15. The petitioners have challenged the order of the Tribunal

contending, inter-alia, that the Tribunal was not justified in

interfering with the quantum of punishment. It has been urged on

behalf of the petitioners by the learned counsel that a charge sheet

dated 26th August, 2005 was also issued which contained four

articles of charges i.e. (i) the respondent took loan from 11 banks

without intimation to the department, (ii) Submitted forged certificate

to a bank for obtaining loan, (iii) Forged pay slip for the month of

November, 2004 for obtaining loan & (iv) Absence from duty

continuously w.e.f. 13th September, 2004. Reliance was also placed

on another charge memo dated 14th September, 2006 alleging forgery

of letter of confirmation and forged undertakings given to the bank

and thus it was contended that the imposition of major penalty was

justified.

16. This argument of the learned counsel for the petitioners is to

be rejected since the articles of charge made against the respondent

by charge sheets dated 26th August, 2005 and 14th September, 2006

were not enquired into nor were there any such admissions on the

part of the respondent on the basis of which it can be held that the

those charges are established. No Inquiry Report in respect of those

charges were given nor did the Disciplinary Authority give any

findings on those charges after giving a reasonable opportunity of

hearing to the respondent. The reason given for not conducting the

enquiry is that the respondent was dismissed from service in the

enquiry conducted on the basis of charge sheet dated 10th January,

2006. The plea of the petitioners cannot be accepted, as the

respondent cannot be punished for charges which have not been

established against him. It was for the petitioners to conduct the

enquiry in respect of all the charges, even if he had been awarded

punishment of dismissal in respect of one of the charge sheets and

the allegation made in that was that he had taken loans from 11

banks without giving intimation and taking prior permission from

the employer. The charges that he submitted a forged certificate to a

bank for obtaining loan; submitted a forged pay slip for the month of

November, 2004; remained absent from duty continuously w.e.f. 13th

September, 2004 and submitted forged letter of confirmation and

forged undertakings to the bank have remained unproved, and,

therefore, cannot be relied on for imposition of any kind of

punishment. The only charge which has been established against the

respondent is that he had obtained loan from 11 banks without

intimating the department or without taking prior permission. This

cannot be disputed that as per instructions of Government of India,

major penalty can be imposed in six types of cases which are as

under:-

(i) Corruption cases involving (a) possession of disproportionate assets; (b) obtaining or attempting to

obtain illegal gratification; (c) misappropriation of Government property/money stores; and (d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate;