By TIOL News Service

NEW DELHI, MAY 27, 2018: THE ISSUE IS - Whether disciplinary authority can approve the initiation of enquiry and the memorandum of charges ignoring the statements of witnesses and merely based on gist of evidence of the witnesses which was forwarded by the CBI. NO IS THE VERDICT.

Facts of the case:

The respondent had joined as Income Tax Officer (ITO) in December, 1985 and eventually he was promoted as a Joint CIT and during the period from 06.11.1996 to 31.12.1998, he was working as Deputy Director, Delhi Zone, Enforcement Directorate (ED), New Delhi. A search & seizure operation was conducted by the Respondent on three shops and residential premises of one Sh. S.C. Barjatya whereby, fax message (debit advice) was seized. The seized fax message reflected a debit of US dollar 1,50,000/- from the account of Royalle foundation, Zurich, Switzerland in favour of one S.K. Kapoor who was holding an account in Hong Kong & Shanghai Banking Corporation (HSBC). However, Sh. S.C. Barjatya filed a complaint stating that the alleged fax message was a forged document and was planted during the search proceeding, with an intention to falsely frame him in that case. On his complaint, CBI took a prima facie view of criminal conspiracy of forging a document and using it as a genuine document and accordingly, registered a case against the respondent and one Mr. Abhishek Verma. An application was filed before the Court by Sh. Abhishek Verma seeking pardon and becoming approver but, the same was opposed by the respondent and the said application was rejected by the Special Judge. Nevertheless, since, the CBI did not oppose the application of Sh. Abhishek Verma, the Special Judge allowed the same and passed the order. The order passed by the Special Judge was challenged by the respondent before the Delhi High Court which remained pending. During the pendency of the petition, a charge sheet was filed wherein, the Court took cognizance of the offences and the charges were framed. Finally, the Court quashed the order of the Special Judge and remitted the matter back for fresh consideration. Again, such decision was challenged by the CBI before the Apex Court wherein, no relief was granted.

Later, based on a preliminary equiry, another FIR was registered against the respondents for collecting assets disproportionate to his known income. Sanction for prosecution was sought by CBI which was accorded and hence, charge sheet was filed. Accordingly, cognizance was taken by the Court and summons were issued to the respondent. The respondent challenged the validity of the sanction before the Special Judge, which got dismissed. This order was challenged before the Delhi High Court wherein, the sanction order was quashed and the matter was remanded back for fresh consideration. When the matter reached before the Apex Court, the appeal preferred by the CBI was dismissed. On remand of the case, the Special Judge concluded that the sanction was valid. This order of the Special Judge and the sanction to prosecute given by the competent authorities were challenged by the respondent before the Delhi High Court where the orders of sanction in both the criminal cases were quashed. In view of the registration of the said criminal cases, the respondent was suspended. The respondent challenged the suspension order and the same was allowed and an opportunity was given to the petitioners to pass a fresh order. Accordingly, the respondent's suspension period was extended. This order was also challenged by the respondent but, the same stood dismissed. The suspension order was reviewed from time to time and was extended for further periods. Again, the respondent reached before the Tribunal and sought for quashing the said suspension order. The Tribunal, while disposing the matter, directed the Competent Authority to conduct a meeting of Special Review Committee (SRC) to consider revocation/continuation of the suspension of the respondent. Consequently, on SRC's recommendation, the suspension of the respondent was further extended. The SRC again met and recommended the continuance of the suspension. These orders were also challenged by the respondent before Central Administrative Tribunal (CAT) wherein, the suspension order was revoked. The suspension of the respondent would remian in effect till he challenge the Tribunal's order before the higher authorities. Further, the Tribunal's order was challenged before both the Delhi High Court wherein, no relief was granted to the petitioners. However, when the matter reached before the Apex Court, it was observed that despite the revocation of the suspension of the respondent by the Tribunal, the petitioners still extended such suspension for six months. And hence, the Apex Court dismissed the appeal filed by the petitioners. After this order, the petitioners revoked the suspension of the respondent, however, a transfer order was issued. This transfer order was challenged by the respondent before the Tribunal wherein, such order was quashed.

Based on the enquiries made by the CBI, a report was forwarded by DIG, Police, CBI, ACP, New Delhi and recommended the disciplinary proceedings against the respondent on five articles of charge. On receiving the approval from the Finance Minister, the memorandum of charge was issued to the respondent and subsequently, the enquiry began. The Enquiry Officer found that petitioners failed to prove all the charges. Hence, with the approval of Chairman CBDT, the case was referred to CVC for its second stage advice. The CVC advised for imposition of penalty. The respondent submitted his comments and thereafter, the matter was placed before the Finance Minister for his approval. Reference to UPSC for its statutory advice was submitted whereby, penalty of downgrading the Charged Officer (CO) to the lower stage in his time scale of pay for a period of 3 years with denial of increments of pay during the said period and on expiry, the reduction effecting postponing his future increments was imposed. The Finance Minister granted approval for imposition of proposed penalty. Before the penalty order could be passed, the respondent sought for quashing of memorandum of charge on the ground that the approval of Finance Minister was not obtained prior to initiation of the disciplinary proceedings. It was also noted that a charge sheet was issued to the respondent for a misconduct of harassing one Sh Pawanjit Singh of M/s Intech Techonology by launching an enquiry against him but, the same was challenged by the respondent. The Tribunal had quashed the memorandum of charges in line with the findings made in the case of B.V. Gopinath Vs. Union of India. However, liberty was granted to the petitioners to proceed with the matters de novo. Pursuant to such liberty, fresh memorandum of charge sheets on the same allegations were issued and the same was again challenged by the respondent.

The respondent had also sought for a directions to the petitioners for grant of promotion to him, which was disposed off with the direction to the petitioners to consider the respondent's representation for ad hoc promotion. The petitioners however, rejected his representation on the ground of issuance of two chargesheets and the gravity of charges against him. This order was challenged whereby, the petitioners were directed to give all such promotions to the respondent as granted to his juniors, with all the consequential benefits considering his ACRs written upto the year 1999.

High Court held that,

++ the memorandum of charges had been issued by the competent authority only on the recommendation of CBI. If the competent authority, while issuing the memorandum of charges had acted independently, i.e. had applied its mind on the facts presented before it and then concluded that there existed material on record for initiation of the disciplinary proceedings and approval of memorandum of charges, it cannot be said that the petitioners had acted with malice unless it is so proved by the respondent during the disciplinary proceedings by raising such contentions. However, if the competent authority has not applied its mind independently on the material before it and has not acted independently while approving the initiation of disciplinary proceedings and approving the memorandum of charges, then if the respondent had been able to show that all along the CBI had been acting malafidely, the petitioners step into the shoes of the CBI and in such cases, it cannot be said that the disciplinary proceedings have been initiated or memorandum of charges have been approved by the competent authority independently on application of its own mind and not at behest of CBI. The contention of malafide and malice on the part of CBI and the petitioners, had been raised by the respondent before the Tribunal and he relied upon certain facts, many of which are part of judicial orders; and the Tribunal on the basis of those facts, reached to the conclusion that the CBI and its officials had been acting malafidely and with malice against the respondent;

++ the case No. S18/E0001/1999 was registered, on the complaint dated 04.01.1998 of Shri S.C. Barjatya, who was found involved in Hawala racket and whose premises were searched on 01.01.1998 by ED against the respondent and one notorious Hawala dealer and Arms Dealer namely, Mr. Abhishek Verma, whose application for pardon and becoming an approver was not opposed by the CBI. This conduct of CBI and its failure to place before the concerned Court the relevant papers was deprecated by this Court in a challenge by the respondent in Ashok Kumar Aggarwal vs. CBI, in which he was also an accused. The matter was remanded for fresh consideration with a direction to CBI to place the entire material before the concerned Court for its consideration. The CBI instead of producing the entire material before the Court, challenged this order in the Supreme Court titled as CBI vs. Ashok Kumar Aggarwal & Anr. The appeal was dismissed by the Supreme Court and the Court had frowned upon the conduct of the CBI, that it had been agitating the issue instead of disclosing the material, asked for, before the concerned Court. It is also noteworthy that in the said case, when the approver status was taken away from Mr. Abhishek Verma pursuant to orders of the Courts, he filed an application, supported by his affidavit in the trial Court on 31.07.2016, complaining of harassment, coercion and pressure and threat to life, extended to him by the CBI officers thereby forcing him to make false and concocted statement against Shri. Ashok Kumar Aggarwal. This further speaks eloquently of the conduct of the CBI;

++ the CBI also registered a case no. S19/E0006/1999 dated 07.12.1999 relating to amassing disproportionate assets to its known income against the respondent. In the said case, the CBI raided the company premises of Sh. Vijay Kumar Aggarwal, brother of the respondent, and seized the records and other materials from his premises and also summoned his accountant, Sh. Sheesh Ram Saini, several times in CBI office and subsequently arrested both of them. This Court in its order dated 26.06.2006 in writ petition (Crl.) no. 738/2001 filed by Sh. Sheesh Ram Saini, noted the high handedness of CBI and directed the registration of the FIR against the officers of CBI. In a writ petition bearing W.P (Crl) 675/2001 filed by Sh. Vijay Aggarwal, seeking writ/direction in the nature of mandamus for registration of FIR against the officers of the CBI for the offences under Ss 506/341/342/166 of Indian Penal Code (IPC) and to launch prosecution against them and also for taking suo motto motion under the Contempt of Courts Act, this Court directed registration of FIR against officers of CBI and FIR's were registered against Mr. Ramnish Singh and Mr. Vinod Pandey, respective Investigating Officers and they are facing trail. In both the cases, RC Nos. S18/E0001/1999 and S19/E0006/1999, the respondent had assailed the orders granting sanction dated 21.06.2002 and 26.11.2002 by the competent authority, Department of Revenue, Ministry of Finance, Govt. of India. This Court vide order dated 13.01.2016 in the matter of Ashok Kumar Aggarwal quashed the orders granting sanction in both the cases. While doing so, the Court had reflected upon the conduct of the CBI;

++ these facts are sufficient for the Court to conclude that these two criminal cases were registered by CBI with malafide intentions and it is nothing but reflection of malice of CBI against the respondent. It was during the proceedings of these cases that the charge sheets dated 13.09.2001 and 01.12.2006 were issued to the respondent, on the recommendation of the CBI. The issue is whether the competent authority, while approving the initiation of departmental enquiry and approving the memorandum of charges, applied its mind independently on the material before it. It is to be noted that the competent authority who approved the initiation of departmental enquiry and memorandum of charges, is the same which had given the sanction for prosecution of the respondent in the criminal cases. In this regard, the Tribunal had concluded that the material supporting the recommended memorandum of charges by the CBI, had not been placed before the competent authority and the competent authority has mechanically passed the order;

++ even at the time when de novo charge sheet was issued, no fresh material for application of mind was put up before the competent authority. It is apparent that at the time when the disciplinary authority was considering the issue of initiation of the departmental enquiry and approval of the charge sheets, the complete set of material was not placed before it. The charge memorandum dated 14.03.2014 was accompanied by Statement of Imputations of articles of charge and the list of documents by which the article of charge were proposed to be proved. It contains the list of witnesses and the gist of their evidence. It is an admitted fact that though the gist of the evidences, the witnesses might depose, had been recorded, no copy of the statements of these witnesses was placed before the disciplinary authority at the time when they were required to take an informed and conscious decision of approval of initiation of disciplinary enquiry and approving the memorandum of charges. Therefore, it is clear that the disciplinary authority has not gone through the statements of witnesses but had acted on the basis of gist of evidence of the witnesses which has been forwarded by the CBI. The statements of imputation of charges in the memorandum of charges dated 20.03.2014 are verbatim to earlier memorandum of charges dated 13.09.2001, pursuant to which disciplinary proceedings were conducted, wherein, the petitioners had failed to prove the articles of charges. It is apparent that despite the fact that the competent authority has failed to prove the allegations in the earlier charge sheets dated 13.09.2001, it without application of mind, issued the fresh memorandum of charges in verbatim. This is a classic case of non-application of mind;

++ the charge sheet dated 01.12.2006, indisputably, it relates to an incident that happened in the year January 1998, but the first charge sheet was issued only on 01.12.2006, on a belated complaint made by Sh. Pawanjit Singh after about two years of the alleged incident i.e. in 2000, and for six years thereafter, no action was proposed on this complaint of Sh. Pawanjit Singh, when suddenly the CBI woke up in 2006 and recommended the memorandum of charge to the competent authority for the conduct of a disciplinary enquiry. These facts show bias and are motivated acts done on them with the sole intention to harass the respondent, against whom they were litigating before various Courts. The fact that despite and contrary to this opinion of the additional DIT (Vig) (HQ) without any additional material being presented, the authorities had approved the initiation and granted approval to the recommended memo of charge sheet of CBI, clearly shows that they have acted solely at the behest of CBI, who had all along been acting with bias against the respondent;

++ in M.V.Bijlani Vs. Union of India & Ors, the Supreme Court has held that the charge sheet can be quashed when issued with a delay of six years and where sufficient material was absent. The Supreme Court in the case of State of A.P vs. N. Radhakishan, has clearly held that delay is a valid ground, to quash the charge memos. In the case of State of Punjab and Others Vs. Chaman Lai Goyal, the Supreme Court has clearly opined that delay is fatal and if it is too long or unexplained, the Courts are within its jurisdiction to quash the charge sheets and also that such delays in some way, lend support to the allegation of bias, malafides and misuse of power. The legal bias and malafide in this case are writ large on the face of it. The mechanical review of suspension order for 13 years and extending it further despite its quashing by the Tribunal reflects on the conduct of the petitioners as well. This Court in W.P. (C) No. 5247/2012 between the parties deprecated such conduct in its order dated 17.09.2012;

++ the conduct of the authorities, that instead of complying with the order, they challenged it in Civil Appeal No. 9454/2013, shows their vindictive attitude. The Supreme Court took this act of commission very seriously and observed that "... in spite of quashing of the suspension order and direction issued by the Tribunal to re-instate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunal's order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the appellants vide disputed judgment and order dated 17.9.2012. Even then the authorities did not consider it proper to revoke the suspension order ..." The contemptuous act of the authority is also apparent from the fact that, even after the order of the Tribunal dated 01.06.2012, and its confirmation up to the Supreme Court, the suspension order was quashed by the authorities w.e.f. 06.01.2014, in utter disregard and violation to the directions of Tribunal to do so w.e.f. 12.01.2012. The respondent was left with no option but to challenge this act of the authorities, by filing Contempt Petition No. 116 of 2014, in Civil Appeal No. 9454/2013;

++ the petitioners too were not lagging behind the CBI when it came to harassing the respondent. After the suspension order was revoked, they transferred him in gross violation of the transfer policy and it was only on the intervention of the Court that the transfer order was cancelled. The authorities still challenged the said order before this Court and obtained an ex-parte stay on 24.12.2014. The respondent filed an application u/s 340 CrPC for perjury, alleging that it was obtained on false presentation of facts. Not only was the stay vacated by the Court on 09.01.2015, but the petitioners were allowed to withdraw the said writ petition on 12.02.2015, on their undertaking, to post the respondent in Delhi. Despite the said undertaking, the respondent was not given any posting for 11 months and was given one only on the intervention of the Court, and this conduct shows nothing but malice;

++ the Supreme Court in V.K. Khanna's case has held that when the administrative actions are coloured by bias and malice, the Courts are within their jurisdiction to quash the charge sheets. The Court has also held that the existence of element of bias depends on the facts and circumstance of each case and can be judged from the surrounding circumstances of the case. The totality of the facts and circumstances of the case clearly show the bias on the part of authorities of such a nature which constitutes malice and malafide. The malice and malafide has been repeatedly deprecated, while dealing with the matters between the parties, i.e., the respondent, CBI and the petitioners. We are, therefore, of the view that the Tribunal has rightly concluded on the basis of undisputed facts and circumstances and after recording in details the reasons for reaching such conclusion that the charge sheets were vitiated. We find no infirmity and illegality in the disputed order which warrants interference.

(See 2018-TIOL-986-HC-DEL-SERVICE)