Shantanu Basu vs Union Of India And Anr

Mohd. Jamshed, Member (A)

The applicant is an officer of Indian Audit and Accounts Services of 1984 batch. Between 22.09.2009 to 05.10.2010, he was posted as Principal Director of Audit (PDA), North Eastern Railway (NER), Gorakhpur on deputation. He was issued with a show cause notice on 10.12.2011 and subsequently, served with a charge memorandum dated 21.03.2012 for various alleged irregularities committed by him during his tenure as PDA of NER between 22.09.2009 to 05.10.2010.

An enquiry was conducted and the Disciplinary Authority vide presidential order dated 24.02.2015 imposed the penalty of compulsory retirement on the applicant, reducing his compensation pension to 2/3rd of admissible pension along with reduction of his gratuity to 2/3rd of the gratuity amount admissible to him. Aggrieved by this order, the applicant has sought multiple relief(s) by filing this OA, which are as under:-

" a. Pass an order for quashing and/or directing the respondents to withdraw the impugned orders dated 24.02.2015 being Annexure-A-1 and Annexure-A-2 vide which the petitioner has been awarded the punishment of compulsory retirement, reduction in pension and gratuity to two-thirds of full admissible amounts and summarily relieved of the charge of Pr. Accountant General (A&E), Assam respectively, with copy endorsed to the Petitioner and pass an order for reinstatement of the petitioner with all consequential benefits;

b. Pass an order for immediate implementation of CAT order of Feb 4, 2015 transferring the petitioner to New Delhi and create a new post at his grade, if none is immediately available and notify the petitioner;

c. Pass an order to immediately expunge the Secret Note in the Petitioner's APAR for 2013-14, fill the integrity column and delete entry of punishment anywhere in the Petitioner's APAR dossier, service book and related service documents, with copy endorsed to the Petitioner;

d. Pass an order on Respondent 1 for sanctioning criminal prosecution of the then DA & CAG, Shri Vinod Rai, Shri Shankar Narayan, Shri Anadi Misra and all 12 subordinate departmental witnesses, including all superannuated witnesses, in addition to instituting CCS (CCS) Rule 14 disciplinary proceedings to be completed within three months, with copy of inal order under Rule 11 & 14 of CCS (CCA) Rules to the Petitioner;

e. Pass a punitive order imposing an exemplary personal fine of Rs. One crore each on the then DA and the signatory officer of the Appointing Authority on the order dated Feb. 24, 2015 (Mrs. Annie George Matthew); Rs. Fifty lakh each on Shri Anupam Kulshreshtha, Shri Shankar Narayan, Shri V. Ravindran and Shri AM Bajaj; Rs. Twenty Five lakh each on Shri Anadi Misra, Shri Raj Kumar and Shri AS Dahinwal; and Rs. Fifteen lakh each on the remaining ten subordinate departmental witnesses for misrepresenting facts and rules, giving false and baseless evidence, suppressing critical documentary evidence, delaying at every stage of proceedings, complete reliance on oral testimony of subordinate departmental witnesses, etc., all with defamatory intent in the disciplinary proceedings against the petitioner with copy of endorsed to the Petitioner;

f. Pass an order on Respondents 1 & 2 for immediately reimbursing legal costs incurred by the petitioner of Rs. 50 lakh and a further Rs. 8 crore (Rs. Five crore for the petitioner and Rs. One crore each for his father, wife and son) for causing acute and prolonged harassment, loss of reputation and mental agony to the petitioner and his family, from the date of issue of the Memorandum of Mar 21, 2012 with 18% interest per annum till the date of actual payment, with copy endorsed to the petitioner;

g. Pass any other further orders/directions which this Hon'ble Tribunal may deem fit and proper."

The applicant has submitted that the disciplinary proceedings suffer from various infirmities and the Inquiry Officer and the Disciplinary Authority have not considered the facts on record. The Inquiry report is largely based on preponderance of possibilities rather than evidence and, therefore, the same cannot be sustained in law. He has also challenged the impugned order stating that the witnesses were biased and various facts in this regard submitted by him have not been considered.

Primarily, the relief sought is with regard to quashing/directing the respondents to withdraw, the impugned order dated 24.02.2015, vide which the applicant has been imposed punishment of compulsory retirement, and various ancillary and consequent relief(s).

Respondents in their counter reply have opposed the submissions made in the OA by the applicant stating that the applicant while posted as PDA of NER, Gorakhpur from 22.09.2009 to 05.10.2010 held the rank of Head of the Department and was self sanctioning authority for his personal claims/entitlements and was issued charge memorandum for various serious financial irregularities. An enquiry was subsequently initiated, the applicant, had earlier challenged the legality of inquiry before this Tribunal through OA No. 792/2013 on the grounds that the Inquiry Officer was not sufficiently senior to him. The Tribunal dismissed the OA vide order dated 06.03.2013, giving liberty to the applicant to take these issues in his representation. The applicant also approached Hon'ble High Court of Delhi through WP(C) No. 2503/2013 against the orders of this Tribunal. The Hon'ble High Court dismissed the petition vide order dated 18.04.2013.

The respondents submitted that inquiry was completed as per the extant rules and the applicant has been given the opportunity of submitting his representation. The Inquiry Report and representation were referred to the UPSC, seeking its advice. The case was considered by the Disciplinary Authority and a penalty of compulsory retirement was imposed. Accordingly, an order dated 24.02.2015 was also issued relieving him of the charge of Principal Accountant General (A&E), Assam, Guwahati.

We heard Ms. Kavita Singh for Mr. A. K. Thakur, learned counsel for the applicant and Mr. Rajesh Ranjan for Ms. Namrata Sharma, learned counsel for the respondents and perused the records.

The applicant was issued a show cause notice dated 09.12.2011. He submitted a detailed reply to the show cause notice on 19.12.2011. A charge memorandum dated 21.03.2012 for major penalty, was served on him indicating various charges pertaining to various irregularities committed by him during the period 22.09.2009 and 05.10.2010, while the applicant functioned as PDA, NER, Gorakhpur. These charges primarily include false claims for reimbursement of food bills, hiring of taxi and various other unauthorized expenditures towards telephone charges, deployment of security guards and other purchases without following the financial rules causing considerable loss to the Exchequer.

The respondents appointed the Inquiry Officer in accordance with law. During this period, the applicant filed a Writ Petition in the Hon'ble High Court against the Inquiry Officer. The Writ Petition was dismissed in limine vide Hon'ble Delhi High Court order dated 18.04.2013. The Inquiry Officer submitted his report on 07.03.2013 and held all the 10 articles of charges as proved in his report. A copy of the report was provided to the applicant giving him opportunity to submit his representation on the Inquiry Report. The applicant submitted his representation on the Inquiry Report on 22.04.2013.

The CAG after considering the inquiry report and the representation of the applicant recorded his findings dated 17.05.2013 agreeing with Inquiry Officer that all the 10 articles of charge as proved and recommended penalty of compulsory retirement from service with reduction of pension and recovery of Rs. 4,86,028/- towards the loss caused to public exchequer. These recommendations were referred to Ministry of Finance for the President (Finance Minister) to pass a final order of penalty as the applicant was appointed by the order of the President. The Appointing Authority took a tentative decision to impose penalty specified in sub rule (vii) to (ix) of Rule 11 of the CCS (CCA) Rules, 1965, and referred the case to the UPSC, for advice as required under the proviso to Rule 15(4) of the CCS (CCA) Rules, 1965. The UPSC in its reply recommended for imposition of the penalty of compulsory retirement.

The department sought second advice of the UPSC. The UPSC vide its letter dated 29.01.2015 indicated that it noted the recommendation of the Disciplinary Authority and advised that since the charges established against the CO constitute grave misconduct on his part, the ends of justice would be met in this case if the compensation pension is reduced to 2/3rd of the admissible compensation pension to the CO and his gratuity should also be reduced to 2/3rd of the gratuity amount admissible to the applicant, on the date of his compulsory retirement, in terms of Rule 40 of the CCS (Pension) Rules, 1972.

The Disciplinary Authority, thereafter, passed the impugned order dated 24.02.2015 imposing the compulsory retirement and reduction of compensation pension to 2/3rd of the admissible compensation pension and also reduction in gratuity to 2/3rd of the gratuity amount admissible to the applicant. He was subsequently relieved vide order dated 24.02.2015 of the charge of the post he was holding. The applicant has filed the present OA challenging the order of Disciplinary Authority and seeks quashing of the impugned order and for his reinstatement. The applicant has also claimed various ancillary reliefs, number of which do not directly pertain to the primary relief regarding quashing of the impugned order and includes frivolous requests including sanction of the criminal prosecution of the CAG, imposition of exemplary personal fine of Rs. 01 Crore each on the then Disciplinary Authority and other officers and payment of Rs. 08 Crore to the petitioner (Rs. Five Crore for the Petitioner and Rs. One Crore, each for his Father, Wife and Son) etc.

Learned counsel for the applicant reiterated the points made in the OA and concentrated his arguments on various aspects that have been covered in the inquiry. Learned counsel for the respondents argued that as a very Senior Audit Officer and being the Head of the Audit Department while the applicant was working in NER, Gorakhpur, he indulged in serious financial irregularities for which charge memorandum was issued to him and during the disciplinary proceedings, he was granted all opportunities to defend his case. The Inquiry Officer concluded that all the charges have been proved. He was further provided the opportunity of making representation. The respondents sought the advice of the UPSC in terms of the extant rules and the Disciplinary Authority imposed the punishment of compulsory retirement and reduction in compensation pension and gratuity.

The applicant is obviously aggrieved by the punishment of compulsory retirement and seeks quashing of the impugned order. We have heard detailed arguments of the learned counsel for the applicant and respondents and it was apparent that the respondents have followed the due procedure during the entire disciplinary proceedings. The applicant has already been given all opportunities to explain and represent his case. Inquiry Officer held that all the 10 articles of charges are proved. The UPSC also considered the entire case and advised the Disciplinary Authority for taking the proposed action. Detailed reasoned and speaking order has been passed.

As far as, the question of intervention of the Tribunal in the Disciplinary Proceedings or assessing the nature of punishment is concerned, it is a settled law that this role is limited in terms of Hon'ble Apex Court ruling in State Bank of India Vs. Samarendra Kishore Endow 1994 STPL 840 SC. It reads as under:-

"10. On the question of punishment, learned Counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court -- or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It "is not an appeal from a decision, but a review of the manner in which the decision was made." Per Lord Brightman in Chief Constable of the North Wales Police v. Evans 1982(3) All E.R. 141 and A.B. Gandhi v. M/s. Gopinath & Sons 1992 Suppl. (2) S.C.R. 312. In other words the power of judicial review is meant "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court". (Per Lord Marylebone in Chief Constable v. Evans). In fact is service matters, it was held by this Court as far back as 1963 that:

The High Court is not constituted under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding...under Article 226 of the Constitution."

...

"We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide, is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."

In other similar judgments also, it is settled that the imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal. It is evident from the above that this case does not suffer from any such infirmity which requires judicial intervention of the Tribunal for setting aside or quashing the penalty imposed by the Disciplinary Authority after having followed the due procedure of law.

In view of the above mentioned, we are of the view that the present OA is devoid of merit and the same is accordingly dismissed. There shall be no order as to costs.