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TMI Blog2009 (7) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... . He was granted 130 days commuted leave followed by earned leave. While on leave, the respondent submitted a bill claiming TA on account of tour to Vienna and it was stated in the bill that the TA could be remitted directly to Air India. After availing the leave, he joined as Commissioner in Kolkata on 17.10.2004 and sought six months time to shift his family, which time was granted by the Chief Commissioner. The respondent engaged M/s. Nitco Roadways Pvt. Ltd. for transporting his household things. He submitted advance proforma bill raised by M/s. Nitco Roadways for an amount of ₹ 48,000/-. Against this, a sum of ₹ 38,425/- was sanctioned on 24.10.2005. On receiving this advance, the respondent issued a cheque dated 24.11.2005 to M/s. Nitco in the sum of ₹ 48,000/-. However, due to some difficulties, he was unable to move his family to Kolkata. Therefore, on 8.12.2005, he wrote to the Chief Commissioner about non-transportation of goods to Kolkata and returned the amount of ₹ 38,425/- through cheque. Amount of ₹ 48,000/- given by him to M/s. Nitco was also returned by them to the respondent on 10.12.2005. 4. It so happened that a pseudonymous comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gwalior (after his release from the office and while he was on leave) for the amount of air- fare as per the invoice submitted by Air India, but he failed to indicate the matter of pendency of the TA advances of ₹ 16,000/- drawn by him and adjust the same in the TA bill submitted by him. Subsequently, Shri Vineet Ohri, submitted a supplementary TA adjustment bill on 05-08-06 at the Kolkata- III Central Excise Commissionerate and being the Head of the Department, got the bill adjusted through his office illegally though the entire TA incurred was required to be forfeited as per the provisions of General Financial Rules, 1963 and FRSR. 5. The respondent challenged the aforesaid charge sheet by filing an OA before the Central Administrative Tribunal, Principal Bench, New Delhi without even replying to the same and before inquiry could be initiated against him on the basis of the said charge sheet. Apart from some other submissions, his main argument was that there could not have been another inquiry on the basis of pseudonymous complaint. 6. The petitioner herein contested the said OA on various grounds, including the ground that in a judicial review, interference at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en note of it while stressing upon a specific circular of Customs and Central Excise issued on 18.1.2006, where all the instructions of CVC were taken into consideration and thereafter a decision has been arrived at to quash the disciplinary proceedings. 12. As none of the grounds raised are apt in law, as declared by the Apex Court in Kamal Sengupta (supra), an attempt has been made by the learned counsel for the review applicants to re-agitate the matter, which is not permissible in review. Erroneousity in law is subject to judicial proceedings before the higher forum. 9. Feeling aggrieved, in the present petition, the petitioner challenges both the orders of the Tribunal, i.e. the one passed in OA and the other passed in the review application. 10. The first question which falls for consideration is as to whether at an interlocutory stage when only charge sheet has been issued proposing to hold the inquiry, whether the Tribunal could set aside the charge sheet on the ground that no action could be initiated on the basis of pseudonymous complaint. We find from the reading of the orders dated 4.12.2007 that while doing so, the Tribunal referred to the CVC instructions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed should adhere, strictly to the instructions in vogue relating to anonymous/pseudonymous complaints. 11. A conjoint reading of the aforesaid instructions would bring forth the following significant aspects :- (a) DOPT had issued instructions dated 29.9.1992 to the effect that no action should be taken on anonymous and pseudonymous complaints, they should be ignored and only filed. (b) Exception to this provision is that in case such complaints contain verifiable details, they may be enquired into in accordance with the existing instructions. (c) The CVC felt that this exception had become a convenient loophole for blackmailing. (d) Those who receive complaints, follow an easy path of ordering enquiries. Very often, the contents of the complaint described as verifiable is used as justification for such action though instructions do not permit this line of action. (e) Such complaints are specially resorted to when a public servant‟s promotion is due or when he is likely to be called by PESB for interview for a post of Director/CMD etc. If nothing else, this results in delaying the promotion if not denying it. (f) These complaints demoralize many honest p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the respondent in an elaborate manner, may now be stated : 15. RE: ARTICLE OF CHARGE NO.1 It is an admitted position even in the charge sheet that the respondent received the sanctioned amount of ₹ 38,425/- for transportation of his household goods only on 14.11.2005 by cheque. Just 10 days thereafter, i.e. on 24.11.2005, he had issued a cheque for ₹ 48,000/- to M/s. Nitco Roadways. Fourteen days thereafter, on 8.12.2005, the respondent of his own wrote to the Chief Commissioner that because of family circumstances, he was not transporting his household goods and thus returning the drawn amount of ₹ 38,425/-. On 10.12.2005, the respondent received a cheque of ₹ 48,000/- from M/s. Nitco Roadways and on 14.12.2005, he refunded the said amount of ₹ 38,425/- by cheque to the Government. All the aforementioned transactions took place by means of cheques and is admitted even in the article of charge No.1. 16. Thus, the respondent had returned the amount much before issuance of the charge sheet. More importantly, all these acts are voluntary and he had no knowledge about the purported pseudonymous complaint. Interestingly, this compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Railway, Nagpur Division, Nagpur 61 Bom LR 1596, and Satubha K. Vaghela v. Moosa Raza 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. 18. RE: ARTICLE OF CHARGE NO.2 No doubt, it appears that the respondent took some time in adjusting the aforesaid TA advance of ₹ 16,000/-. However, fact remains that this TA advance was also adjusted by him voluntarily and suo moto on 27.7.2006 by depositing a sum of ₹ 4,700/-, after deducting the expenses incurred from the said advance. This also happened much before the issuance of charge memo. The allegation in article of charge No.2 is that in view of the delay, the TA claim was required to be forfeited as per the provisions of General Financial Rules. Thus, the delay or the subsequent accounting adjustment cannot be described as a misconduct to proceed against the applicant. At the most the Pay Accounts office could have been instructed to forfeit the TA claim if General Financial Rules so pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant without any fairness with a view to abort the original claim of the applicant for promotion, which is now being kept under sealed cover. 20. In view of our aforesaid discussion, we are unable to accept the submission of learned counsel for the petitioner that the Tribunal should not have interfered with the matter at the interlocutory stage. No doubt, at show-cause stage, normally the courts have to refrain themselves from interfering and quashing a charge sheet. Ordinarily, discretion to interfere at this stage is not to be exercised by quashing a show-cause notice or charge sheet. However, at the same time, this principle is also abundantly clear that in exceptional cases the courts can interfere. It may be that in rare cases such a discretion is to be exercised when charge sheet or show-cause notice is found to be wholly without jurisdiction or for some other reason it is wholly illegal. In the present case, taking holistic view of the matter, we find that a case for interference was made out by the respondent. It was very well within the powers of the Tribunal to examine as to whether allegations, in the facts and circumstances, amount to misconduct‟ at all or no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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