Vivek Batra vs Union Of India & Ors.

Hon'ble Dr. Sumeet Jerath, Member (A) : The instant OA has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

The factual matrix of the case as per the counsel for the applicant is that the applicant had joined the Indian Revenue Service on 04.01.1993 as Assistant Commissioner of Income Tax. He was promoted as Joint Commissioner of Income Tax in February 2003 and as Additional Commissioner of Income Tax in August 2005. He ultimately retired from service on 10.06.2019. A case relating to alleged possession of disproportionate assets was registered by the CBI on 04.04.2005. The investigation related to the period from 04.01.1993 to 31.03.2005. The CBI initially alleged disproportionate assets of about Rs.1,27,38,353/-. During investigation, the CBI alleged that two companies, namely, M/s ARJ Impex Pvt. Ltd. and M/s Malik Hospitality Services Pvt. Ltd., were benami entities connected with the applicant and that the assets and income of the said companies were liable to be taken into consideration while determining the disproportionate assets of the applicant. The CBI ultimately computed the combined disproportionate assets at Rs.56,30,269/-, representing 59.35% of the likely savings during the check period. The material placed on record shows that the CBI recommended prosecution as well as initiation of Regular Departmental Action for major penalty. The applicant, however, submitted representations disputing the allegations and contending, inter alia, that the two companies were independent legal entities and that there was no basis for including their assets in his assets merely on the basis of statements of their directors. The departmental authorities examined the CBI report and the material available on record. The Central Vigilance Commission, vide its First Stage Advice dated 01.09.2011, advised launching of prosecution and initiation of RDA for major penalty. Since the Department was not in agreement with the CVC's advice, the matter was referred to the DoP&T in terms of the applicable instructions. The DoP&T thereafter expressed its view that the matter required a final decision by the Disciplinary Authority. According to the applicant, the then Finance Minister had earlier expressed the view on 01.10.2011 and 18.02.2012 that there was insufficient evidence and no prima facie case for initiation of major penalty proceedings. The applicant further stated that on 27.04.2012 the then Finance Minister approved a decision not to initiate major penalty proceedings and instead to issue an administrative warning. He therefore contended that the subsequent decision of the successor Finance Minister dated 27.09.2012 to initiate major penalty proceedings on the same material amounted to an impermissible review of a concluded decision. The respondents, however, have specifically disputed the above contention. According to them, the matter had not attained finality in the manner suggested by the applicant. The CVC had advised initiation of major penalty proceedings; the Department had differed from the CVC; the matter was accordingly referred to the DoP&T; thereafter the advice of the DoP&T, the CVC advice and the evidence available on record were considered afresh. The respondents stated that, after such consideration, approval of the Disciplinary Authority, i.e. the Finance Minister, was specifically obtained on 27.09.2012 both for initiation of disciplinary proceedings and for the draft Memorandum under Rule 14 of the CCS (CCA) Rules, 1965. The charge memorandum was thereafter issued on 09.10.2012. The Memorandum dated 09.10.2012 contained an article of charge alleging that during the period 04.01.1993 to 31.03.2005 the applicant had acquired movable and immovable assets in his own name, in the names of his family members and in the names of the two companies, which were disproportionate to his known sources of income. It was further alleged that certain assets were acquired without due intimation to the competent authority, thereby violating the CCS (Conduct) Rules, 1964. The disciplinary inquiry thereafter proceeded. The Inquiry Officer, Shri Jayant Kumar, was appointed to inquire into the charges. The Inquiry Officer submitted his report dated 14.02.2022 and found the charge proved. The Office Memorandum dated 20.07.2022 recorded that the Disciplinary Authority had examined the Inquiry Report and was tentatively in agreement with the findings of the Inquiry Officer. The applicant was consequently given an opportunity to submit his comments within fifteen days, and it was specifically stated that the Disciplinary Authority would consider his representation before proceeding further. The applicant submitted his representation dated 15.09.2022 in response to the Office Memorandum dated 20.07.2022. The present OA was thereafter filed in October 2022. The applicant contended that the Inquiry Report is vitiated on several grounds, including denial of documents, denial of opportunity of cross-examination, violation of Rule 14(18) of the CCS (CCA) Rules, improper appreciation of evidence and erroneous computation of assets and income. He also challenged the very initiation of the disciplinary proceedings on the ground that the earlier Disciplinary Authority had taken a decision that there was no prima facie case for initiation of major penalty proceedings. The applicant has raised several grounds. One of his principal contentions is that there was no valid approval of the competent Disciplinary Authority for issuance of the charge memorandum. Reliance has been placed upon the judgments of the Hon'ble Supreme Court in B.V. Gopinath vs. Union of India & Ors. – Civil Appeal No. 7761/2013 and Sunny Abraham vs. Union of India – Civil Appeal No. 7764. The applicant has also challenged the non-supply of documents. According to him, complete relevant records, including the complete note-sheet, CBI investigation material, statement of Shri Karan Singh recorded under Section 164(5) of the Cr.P.C., CVC/DoP&T correspondence and other relevant documents, were not furnished to him in a manner enabling him to effectively defend himself. He further disputed the computation of his income and assets. He referred to various sources of income claimed by him and his family, including income of his wife, amounts received from M/s ARJ International, loans and other financial transactions. He also disputed the manner in which the assets of M/s ARJ Impex Pvt. Ltd. and M/s Malik Hospitality Services Pvt. Ltd. were taken into consideration for determining his alleged disproportionate assets. Another grievance of the applicant relates to the statement of Shri Karan Singh. According to the applicant, the said statement had an important bearing upon the case of the respondents, but Shri Karan Singh was not available for cross-examination. The applicant therefore contended that reliance upon such material adversely affected his right to a fair hearing. He also alleged violation of Rule 14(18) of the CCS (CCA) Rules, 1965 and has disputed that he was given a meaningful opportunity to explain the circumstances appearing against him. Aggrieved, the applicant approached this Tribunal to ventilate his grievances.

The counsel for the applicant took the following grounds to support his case :-

Per contra, the counsel for the respondents vehemently opposed the OA and raised preliminary objections as well as objections on merits. The first preliminary objection is that the applicant has challenged the charge memorandum dated 09.10.2012 after an extraordinary delay. The OA was filed on 18.10.2022, i.e. more than ten years after issuance of the charge memorandum. It is specifically pointed out that the applicant did not file any application seeking condonation of delay. The respondents therefore submit that the OA is liable to be dismissed on the ground of limitation alone. The second preliminary objection of the respondents is that the OA is premature. According to them, although the Inquiry Officer submitted his report dated 14.02.2022, the Disciplinary Authority had only expressed tentative agreement with the findings and had issued the Office Memorandum dated 20.07.2022 giving the applicant an opportunity to make his representation. The applicant submitted his representation on 15.09.2022. Therefore, no final order had been passed by the Disciplinary Authority when the present OA was filed. On the question of initiation of proceedings, the respondents have categorically stated that the prescribed procedure was followed. The counsel submitted that in view of the difference between the CVC and departmental views, the matter was referred to DoP&T under the DoP&T OM dated 03.05.2012. After receipt of the DoP&T's view, the advice of the CVC, the DoP&T opinion and the evidence on record were considered. Thereafter, the Finance Minister, being the Disciplinary Authority, granted approval on 27.09.2012 for initiation of major penalty proceedings as well as for the draft charge memorandum. The memorandum was thereafter issued on 09.10.2012. The respondents have specifically disputed the applicant's reliance upon B.V. Gopinath and Sunny Abraham’s case (supra). According to him, those decisions dealt with cases where the charge memorandum had not been put up for approval before the Finance Minister. In the present case, according to the respondents, prior approval of the Finance Minister was obtained both for initiation of disciplinary proceedings and for the draft Memorandum under Rule 14 of the CCS (CCA) Rules, 1965 on 27.09.2012. The respondents have denied that the applicant was deprived of relevant documents. It is submitted that the issues raised by the applicant concerning valuation of assets were considered by the Inquiry Officer, who called for requisite information from the CBI. According to them, the information was supplied to the applicant vide letter dated 19.08.2020. They further stated that statements of witnesses forming part of Annexure III to the charge memorandum, along with other relied-upon documents, had been supplied to the applicant and that the Inquiry Officer issued a certificate dated 16.02.2022 in this regard, which was acknowledged by the applicant. As regards the allegation concerning Rule 14(18), the respondents submitted that the applicant was supplied a copy of the Presenting Officer's brief on 25.06.2021. Thereafter, by letter dated 05.10.2021, he was specifically afforded an opportunity under Rule 14(18) to explain the circumstances appearing against him. The communication also contained particulars regarding the assets of M/s Malik Hospitality Pvt. Ltd. and M/s ARJ Impex Pvt. Ltd. as well as statements of witnesses relied upon during the inquiry. The applicant submitted his written submissions on 26.11.2021, which were considered by the Inquiry Officer. On the issue of witnesses, the respondents stated that Shri Karan Singh was issued notice to appear before the Inquiry Officer, but the applicant informed the Inquiry Officer that Shri Karan Singh had expired. Notices were also issued to other witnesses, but they did not attend the proceedings. The respondents nevertheless submitted that the Inquiry Officer did not rely solely upon the statement of Shri Karan Singh recorded under Section 164(5) of the Cr.P.C. Rather, the Inquiry Officer considered the evidence available on record as a whole. The respondents further submitted that, according to the Inquiry Officer, Shri Karan Singh and Shri Vijay Kumar, who were shareholders/directors of the two companies and relatives of the applicant's wife, were persons of little means and were merely name lenders. The Inquiry Officer is stated to have concluded, on the basis of the surrounding circumstances, that the receipt of funds by the two companies would not have been possible without the influence or money of the applicant and that the ultimate beneficiary was the company holding assets on behalf of the applicant's wife/family. The respondents have also opposed the applicant's challenge to the sufficiency of evidence. They submitted that departmental proceedings are distinct from criminal proceedings initiated by the CBI and that the strict provisions of the Evidence Act do not apply in the same manner to departmental proceedings. According to them, the evidence is required to be assessed on the touchstone of preponderance of probabilities. The respondents contended that the Inquiry Officer had made a detailed analysis of the evidence and had considered the various explanations and additional sources of income put forward by the applicant. They submitted that comments and counter-comments were obtained from the applicant before the Inquiry Officer arrived at his conclusion where the IO found that assets disproportionate to the known sources of income to the extent of approximately Rs.50.63 lakh remained unexplained. The respondents further submitted that the sufficiency or adequacy of evidence cannot be examined by the Tribunal in judicial review as if it were an appellate authority, particularly when the departmental proceedings had not culminated in a final order of the Disciplinary Authority. They therefore contended that the applicant's challenge to the appreciation of evidence by the Inquiry Officer was premature as well as beyond the permissible scope of judicial review. On the applicant's reliance upon the CVC Circular dated 23.06.2021, the respondents submit that the said circular had been duly followed. They contended that the applicant's interpretation of the circular was misplaced and that, where there was disagreement with the CVC advice, the matter was required to be referred to DoP&T. According to the respondents, this procedure had already been followed in the applicant's case. The respondents have consequently prayed for dismissal of the OA, submitting that due procedure under the CCS (CCA) Rules, 1965 and the relevant DoP&T/CVC instructions had been followed. They have also sought vacation of any interim relief granted in favour of the applicant.

In his rejoinder the counsel for the applicant submitted that the respondents have misrepresented the facts by assuming that the challenge is limited strictly to the 2012 charge memorandum, whereas a fresh cause of action arose with the issuance of the Office Memorandum dated 20.07.2022 containing the Disciplinary Authority's tentative agreement with the IO's report. The applicant re-emphasized that the competent authority had previously reviewed the CBI report on three separate occasions and concluded that no case of disproportionate assets was established. The applicant reiterated that the IO’s findings regarding the two private companies were arrived at without calling key witnesses or offering cross-examination, thereby breaching principles of natural justice and rendering the finding of "preponderance of probability" completely baseless. Regarding DoPT's involvement, the applicant asserted that DoPT never advised major penalty proceedings, and the Finance Minister failed to pass a required speaking order explaining the deviation from the previous departmental stand. The applicant further noted that the IO himself agreed with the applicant's calculation in part by reducing the alleged disproportionate amount from ₹56 lakhs to ₹50 lakhs, yet the respondents selectively ignored evidence showing over ₹2 crores in legitimate family income on a gross basis. The applicant highlighted that the IO introduced new issues during the Rule 14(18) stage without providing a fair chance to rebut them, thereby vitiating the entire inquiry process and entitling the applicant to the relief sought.

Along with the written submissions, wherein the counsel for the applicant reiterated the facts of the case, he filed copies of judicial pronouncements relied upon by him which have already been discussed above. However, he put reliance upon one more decision which is quoted below :-(1) Govt. of NCT of Delhi vs. Dr. Sandeep Miglani – W.P (C) No. 3132 of 2019 dated 21.05.2019, which was not discussed earlier.

The same has been perused and is taken on record.

Along with the written submissions, wherein the counsel for the respondents reiterated its submissions from the reply, the counsel for the respondents filed copies of the decisions rendered by the Hon’ble Supreme Court and the High Court of Delhi which are listed below :-(1) Nahar Singh vs. UOI – L.P.A. No. 23 of 1985 dated 30.07.1991 and (2) State of Uttranchal vs. Sunil Kumar Vaish– (2011) 8 SCC 670

We have gone through the above decisions and have taken them on record.

We have given our thoughtful consideration to the rival submissions; examined the documents on record and perused the relevant judgments of Hon’ble High Court and Hon’ble Supreme Court. We have observed that the applicant has challenged the Memorandum of charges dated 09.10.2012 in the instant OA on 18.10.2022 - after an inordinately long delay and unexplained laches of 10 years. It is a settled principle in administrative law and service jurisprudence that delay defeats equity and justice. Procrastination is the thief of time; and law does not support Rip van Winkles and Kumbhkaran who are dormant and indolent; and sleep over their rights; and suddenly woke up and rise like a phoenix. The ratio of "Vigilantibus non dormientibus jure sub venient" is given very eloquently in the judgment of Hon'ble Supreme Court in Chennai Metropolitan Water Sewage Corporation vs. T.T. Mural Babu - (2014) 4 SCC 108.

Also we have observed that the applicant has challenged the charge memorandum at the interlocutory stage of the departmental proceedings, when the Enquiry officer has already submitted his findings and OM dated 20.07.2022 has been issued to the applicant for submitting his representation against the enquiry report and even the applicant has already submitted his representation. At this stage, we are not inclined to interfere and throw a spanner in the works when the DP have reached such an advanced stage and abort the whole process.

We have also observed that the investigation conducted by CBI has revealed that the applicant while working in the Income Tax Department during the period 04.01.1993 to 31.03.2005, by abusing his official position and by corrupt and illegal means, acquired movable and unmovable assets by abusing his official position and by corrupt and illegal means, acquired movable and unmovable assets worth Rs. 1,29,68,659/- in his name, in the names of his family members and in the names of two companies, M/s ARJ Impex Pvt Ltd and M/s Malik Hospitality Services Pvt. Ltd., against likely savings of Rs. 73,38,390/- during the said period. Therefore, the assets acquired by the Charged Officer are disproportionate to his known sources of income to the extent of Rs. 56,30,269/-, which he has not been able to explain and account for. Also due procedures under the CCS (CCA) Rules, 1965 and DoPT/CVC guidelines were strictly followed, noting that after the CVC issued First Stage Advice for prosecution and major penalty, the matter was referred to the DoPT due to an initial difference of opinion, and ultimately the Finance Minister as the Competent Disciplinary Authority granted formal approval on 27.09.2012 for major penalty proceedings and prosecution. Furthermore, the ratio given in Nahar Singh vs. UOI (supra) and State of Uttaranchal vs. Sunil Kumar Vaish (supra) cited by the respondents provide that an authority has the inherent power to review or amend its view, and that file notings do not constitute a final government decision unless acted upon thereby rendering the applicant's cited judgments of B. V. Gopinath and Sunny Abraham distinguishable and inapplicable. In both the cases – B. V. Gopinath as well as Sunny Abraham, the charge memorandum had not been put up for approval before the Finance Minister.

As per the ratio given in landmark judgments of Hon'ble Supreme Court in: (i) B.C. Chaturvedi vs. Union of India & others (1995) 6 SCC 749 and (ii) Union of India vs. P. Gunasakaran (2015) 2 SCC 610 it is a settled principle in administrative law and service jurisprudence that Courts and Tribunals cannot re-appreciate evidence and act as Appellate authorities in Disciplinary Proceeding (DP) matters. Their role in judicial review and interference in DP matters is very limited and only warranted on the grounds of patent illegality; irrationality; procedural impropriety (violation of principles of natural justice) and dis-proportionality of penalty/punishment that shocks the conscience of the Court. In our considered opinion none of the above four violations have been noticed in the instant OA.

In the light of the above, we are of the considered opinion that the balance of convenience in the instant OA lies with the respondents. The instant OA lacks merit; deserves to be dismissed and is accordingly dismissed. MAs if any are also disposed of in similar manner. However, there will be no order as to costs.