Rajendra Prasad Dwivedi vs Union Of India & Anr
2012 Latest Caselaw 1079 Del

        *         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment reserved on:   13.02.2012
                                           Judgment pronounced on: 16.02.2012

+       W.P.(C) 850/2012

        RAJENDRA PRASAD DWIVEDI                                        ...        Petitioner

                                           versus

        UNION OF INDIA & ANR                                             ...      Respondents

Advocates who appeared in this case:
For the Petitioner          : Mr Sudhir Nandrajog, Senior Advocate with Mr S.S. Duggal and
                              Mr Manish Shanker Srivastava
For Respondents             : Mr Rajinder Nischal

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This writ petition is directed against the order dated 28.11.2011 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter

referred to as "the Tribunal"), whereby OA No. 4249/2010, filed by the petitioner,

was dismissed. The facts giving rise to the filing of this petition can be

summarized as follows:

The petitioner, at the relevant time was working as a Deputy Legal Advisor

in the CBI. Disciplinary proceedings for imposing major penalty on the petitioner

were initiated and the first stage opinion of Central Vigilance Commission was

obtained on 18.05.2010. This was followed by drafting of Charge Memo, List of

Documents and List of Witnesses, etc. The proposal to initiate disciplinary

proceedings against the petitioner was submitted to the Prime Minister, who was

the Competent Authority to approve departmental action against him, through the

Minister of State, who approved the same on 21.07.2010. The papers placed before

the Prime Minister included Charge Memo, Statement of Imputation, List of

Witnesses and List of Documents supporting the charge. The approval of the Prime

Minister to initiate major penalty proceedings against the petitioner was

communicated vide note dated 28.06.2010, whereupon the charge memo was

issued on 29.07.2010 and served upon the petitioner on 30.07.2010.

2. It was alleged in the charge memo that the petitioner, along with Constable

Vijay Prabhu, went to the residence of one Bharat Bhai Shah, who was prosecuted

under Section 120-B and 420 of Indian Penal Code read with Sections 5(1)(d) and

5(2) of Prevention of Corruption Act and who was awarded punishment of simple

imprisonment for one day and fine of Rs 4,00,000/-. It would be pertinent to note

here that prosecution of Shri Bharat Bhai Shah on behalf of the CBI was being

conducted by the petitioner and he did not attend the aforesaid case, on the day he

visited Shri Bharat Bhai Shah in the Hospital. It was also alleged that in another

case, he contacted one Vijay Nanalal Seth against whom a case under Section 120-

B read with Section 420/409/467/468 and 471 of IPC and Sections 13(1)(d) read

with 13(2) of Prevention of Corruption Act, 1988 was registered, assured him of

arranging bail within a few days of his arrest, if Rs 2 lakh were paid by him and

later when Shri Seth was released on bail, he paid Rs 2 lakh to the petitioner. Yet

another allegation against the petitioner was that on 29.06.2005, he unauthorizedly

enquired about the information regarding searches to be conducted on 30.06.2005,

in the cases in which he was not involved.

3. In the meanwhile, the petitioner submitted a notice dated 03.03.2010 under

Rule 48(1)(a) of CCS (Pension) Rules, 1972, seeking voluntary retirement from

service. The request of the petitioner seeking voluntary retirement was processed in

a separate file. Director, CBI vide note dated 26.3.2010 recommended dropping of

disciplinary proceedings and acceptance of notice for voluntary retirement. The

Minister of State, who was the Competent Authority to take decision on the

application of the petitioner seeking voluntary retirement from service, approved

the retirement proposal, subject to the condition that the charge-sheet would be

served on him before he was permitted to proceed on voluntary retirement.

4. OA No. 4249/2010 was filed by the petitioner seeking quashing of the

Memorandum of Charge-sheet dated 29.7.2010 as well as ID Note bearing No. DP

PERS.I/2010/3085/3/13/87 dated 23.9.2010 issued by CBI, whereby it was decided

that since a charge-sheet had been served on the petitioner on 30.7.2010 for

initiation of major penalty proceedings, he was entitled to provisional pension and

leave encashment but was not entitled to payment of gratuity, till finalization of the

disciplinary proceedings against him. A perusal of the impugned order passed by

the Tribunal would show that not only the leave encashment but the amount lying

deposited in General Provident Fund of the petitioner as well as the part of the

gratuity were also released to him. The OA was dismissed by the Tribunal vide

impugned order dated 28.11.2011.

5. It has been contended by the learned Senior Counsel for the petitioner that

since CBI ID Note dated 26.3.2010 whereby Director CBI, in consultation with In-

charge DOP, CBI recommended closure of the criminal cases as well as dropping

of disciplinary action against the petitioner coupled with acceptance of the notice

for voluntary retirement given by him, was not placed before the Competent

Authority, the decisions taken by the Competent Authority to institute major

penalty proceedings against the petitioner, got vitiated on account of the relevant

material not being made available to him. We, however, do not find any merit in

the contention. The Competent Authority was required to take a decision on the

proposal placed before him for initiating major penalty proceedings against the

petitioner, on the strength of the allegations contained in the Memorandum of

Charge including Statement of Imputations, List of Witnesses and list of

documents etc. in support of the Articles of Charge and the notice given by the

petitioner seeking voluntary retirement from service had absolutely no bearing on

such a decision. It is not as if, Director CBI while approving the ID Note dated

26.3.2010 had come to the conclusion that the charges against the petitioner had no

merit. The recommendation made by him for dropping the disciplinary

proceedings against the petitioner purports to have been based on previous record

of the petitioner coupled with the notice given for voluntary retirement. It would

be pertinent to note here that admittedly, it was Director CBI, who had earlier

recommended initiation of major penalty proceedings against him in the file, in

which the proposal for major penalty proceedings was approved by the Prime

Minister on 28.7.2010. We, therefore, are unable to accept the contention that it

was obligatory for the respondents to place the ID Note dated 26.3.2010 before the

Competent Authority, before he approved initiation of major penalty proceedings

against the petitioner.

6. The second contention of the learned Senior Counsel for the petitioner was

that the Memorandum of Charge was signed by the Director in DOP and was

neither signed nor approved by the Prime Minister, who was the Competent

Authority and therefore, it cannot be said that the disciplinary proceedings had

been instituted by a competent person. We do not find any merit in this contention

as well. A perusal of the impugned order would show that the respondents

produced two files before the Tribunal for its perusal; one in which the notice of

the petitioner seeking voluntary retirement from the service was processed and the

other in which the proposal for initiation of disciplinary proceedings for major

penalty against the petitioner was approved by the Prime Minister, who was the

Competent Authority. The Tribunal, on examination of the file, found that the

papers which were placed before the Prime Minister comprised Charge Memo

including Statements of Imputations, List of Witnesses and List of Documents

supporting Articles of Charge and thus, the whole proposal including draft

Memorandum of Charges was placed before the Prime Minister by DOP, which

was approved by him and the approval was communicated vide note dated

28.7.2010. The Tribunal therefore came to the conclusion that competent authority

had approved not only the proposal for taking departmental action against the

petitioner but also the Charge Memo issued to him. In view of the verification by

the Tribunal from the file, we cannot accept the contention that the charge-sheet

served upon the petitioner did not have approval of the Competent Authority. Once

the draft charge-sheet was approved by the Competent Authority, it was not

necessary that memo of charge-sheet should be signed by the Competent Authority

himself or the Charge Memo should again be submitted to him for approval. If the

draft charge-sheet is approved by the Competent Authority, the memorandum of

charge-sheet can be signed by a subordinate officer pursuant to the approval

granted by the Competent Authority. We, therefore, find no merit in the second

contention as well.

7. No other contention was raised before us. The writ petition is devoid of any

merit and is hereby dismissed without any order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

FEBRUARY 16, 2012 Bg/vn