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TMI Blog2019 (6) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... gs or in pursuing with the charges against the petitioner. The delay occurring in the matter of conduct of disciplinary proceedings since the filing of the Original Application cannot be a reason available to the petitioner to contend against the continuation of the disciplinary proceedings initiated under Annexure- A1. In short, on the ground of delay the disciplinary proceedings initiated against the petitioner invite no interference. Whether the disciplinary proceedings based on Annexure-A1 invites interference and an abrupt termination on any other ground? - HELD THAT:- We do not find any reason to disagree with the conclusions arrived at by the Tribunal that they are nothing but imputations, the verity or otherwise of it could be proved only at the final enquiry. At any rate, merely because the imputations are couched in such a manner in paragraph 23, that by itself cannot be a reason to terminate the proceedings abruptly. Still, as an abundant caution we make it clear that those extracted recital shall not be taken as conclusions against the petitioner and they shall be regarded only as prima facie view for the purpose of initiation of disciplinary proceedings and sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, we are of the view that it is only profitable to have the following prelude for a proper disposal of the original petition:- While considering the question as to whether disciplinary proceedings can be abruptly terminated at the stage when the delinquent employee was only charge sheeted the decision of the Hon'ble Apex Court in Union of India v. Ashok Kacker ((1995) Suppl. 1 SCC 187) assumes relevance. That was a case where the respondent, on being charge sheeted, without replying to it and without waiting for the decision of the disciplinary authority thereon, rushed to the Central Administrative Tribunal seeking quashment of the charge-sheet. The Tribunal entertained it and ultimately quashed the charge sheet. While setting aside the order of the Tribunal and dismissing the Original Application filed before the Tribunal the Apex Court held that it was premature for an Administrative Tribunal to consider a challenge to the charge sheet where the employee rushed to the court immediately on receiving it and he should have made a reply to the charge sheet raising all the points available to him and invite the decision of the disciplinary authority there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. 3. A perusal of the decision in Radhakrishnan's case would reveal that the Apex Court carved out certain exceptions to the general position and held that interference is permissible to bring an end to disciplinary proceedings initiated after an inordinate delay or where there occurred inexplicable and inordinate delay in concluding it. Going by the decision, courts have to take into consideration all the relevant factors and to balance and weigh them to determine if it would be in the interest of clean and honest administration to terminate the disciplinary proceedings after long delay particularly, when the delay is abnormal and there is no explanation for the delay. In other words, going by the said decision, under normal circumstances, disciplinary proceedings should be allowed to take their course as per the relevant rules and it would not be possible to lay down any pre-determined principles applicable to all cases and in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record and ultimately held that the Original Application was moved prematurely and it would be too early for the Tribunal to enter into a finding on any of the aspects touching the merits of the contentions advanced by the applicant/petitioner herein. Consequently, the O.A. was dismissed as per order dated 18.9.2018. The Tribunal held:- To sum up, it is too early for this Tribunal to enter a finding on any of the aspects concerning the merit of the contentions advanced by the applicant. The plea raised by the applicant that Annexure A1 would indicate that the authority had already entered a finding and that the inquiry would be a farce, is unsound and unacceptable. It is only the charge that has been framed against the applicant to which he has to submit his written statement of defence. We could not find any illegality touching upon the jurisdiction or otherwise to interfere in the disciplinary action at this stage. As stated earlier, the petitioner filed the captioned original petition feeling aggrieved by the said order and seeking to set aside the said order of termination of disciplinary proceedings initiated under Annexure-A1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain absolute integrity and showed lack of devotion to duty and exhibited conduct unbecoming of a Government servant thereby contravening the provisions of Rule 3(!)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. 7. The petitioner raised various grounds in support of his challenge against Annexure-A1. The core contention of the petitioner is that there occurred inordinate delay in the matter of initiation of disciplinary proceedings and on that sole score Annexure-A1 is liable to be quashed. It is contended that proceedings pursuant to Annexure-A1, if permitted to continue, would amount to post decisional hearing and evidently, this contention is founded on paragraph 23 of Annexure-A1 (in Ext.P2), more particularly, the following recital therein:- The whole sequence of events and the phone calls intercepted in the Data Bank establish the role of Shri.Shantam Bose in leaking confidential information in the case of Shri.Davinder Ahuja. Referring to the said recital, it is contended by learned Senior Counsel for the petitioner that it is indicative of the fact that the competent authority had alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that there occurred inordinate delay in the matter of initiation of disciplinary proceedings on the alleged incidents mentioned under Articles I and II, in the light of the decision of the Hon'ble Apex Court in N.Radhakrishnan's case (supra). 8. As a matter of fact, the Tribunal had considered the contentions raised by the petitioner attributing inordinate delay in the matter of initiation of disciplinary proceedings against him. After considering the explanation offered by the respondents for the delay and also the materials on record, the Tribunal evidently arrived at the conclusion that there occurred no undue or unexplained delay and the delay, if any, had occurred only due to the time taken for complying with the procedural formalities. In short, the Tribunal repelled the contentions made by the petitioner on the ground of inordinate delay in initiation of disciplinary proceedings. 9. In the aforesaid circumstances, while considering the aforesaid question it is only worthy to bear in mind paragraph 19 of the decision in Radhakrishnan's case (supra), extracted hereinbefore. The Apex Court held therein that in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and the department in which he held that post, the consequences including the damage to the reputation of the department and host of other factors that, we made the aforesaid observation. In short, we got no doubt in our mind that the nature of misconduct alleged against the petitioner is very grave and very serious, in nature. 10. Going by paragraph 4 of Article I in Annexure-A1 the department was informed by the informant concerned that the information provided by him to the department had been leaked to Shri.Davinder Ahuja, the assessee who was intercepted on 26.9.2009 and thereupon, Davinder Ahuja had been threatening him with dire consequences for providing information about his off-shore accounts to the investigation wing and further that at that point of time the source of leakage was not known. When that be so, it is evident that the genesis of the present proceedings is the leakage of information regarding the identity of the informant to the assessee concerned and also the action in unauthorised sharing of the contents of informant's letter dated 30.4.2010 with Shri.Davinder Ahuja, the assessee, through Shri.Mohit Kapoor, a retired IRS of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri.Shantam Bose is guilty of Breach of Conduct Rule'. iv. The office vide letter dated 4.8.2010 asked DIT (Vig.), West Zone, Mumbai to examine the issue and give his comments/ recommendation on the clarification sought by the DGIT(Inv.). v. After examining the issue, the DIT(Vig.), West Zone, Mumbai submitted report vide letter dated 20/7/2011. vi. Further clarification on the matter was sought vide letter dated 7/9/2011 from DIT (Vig.), West Zone. vii. The DIT(VIg.), West Zone submitted his report vide letter dated 3/10/2011. viii. After obtaining the version of the CO the DIT (Vig.), West Zone submitted his report vide letter dated 7.11.2013. ix. After examining the report of the DIT(Vig.), West Zone, Chairman, CBDT has given approval on 15/12/2014 to refer the matter to CVC for first state advice. x. The CVC after examining the issue, vide its OM No.014/TTX/049/274955 dated 10/2/2015 had advised for initiation of major penalty against Shri Shantam Bose, CIT. xi. The advice of the CVC was examined by DA, who after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Annexure- A1. In short, on the ground of delay the disciplinary proceedings initiated against the petitioner invite no interference. 13. Now, we will proceed to consider whether the disciplinary proceedings based on Annexure-A1 invites interference and an abrupt termination on any other ground. As noticed hereinbefore, in view of what is stated in paragraph 23 of Annexure- A1 it is contended by the petitioner that they would go to show that the authority concerned had already arrived at the conclusion that the petitioner is guilty of the charges levelled against him. According to the petitioner, in such circumstances, continuance of disciplinary proceedings would tantamount to post decisional hearing and at any rate, its continuance would be a farce. Evidently, the contention is founded on certain recitals in paragraph 23, as extracted hereinbefore. But, for the fitness of things, at the risk of the petitioner, we are referring to the relevant recitals and they read thus:- The whole sequence of events and the phone calls intercepted in the Data Bank establish the role of Shri.Shantam Bose in leaking confidential information in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various aspects which we have already dealt with, we are of the considered view that the respondents were perfectly justified in conducting a preliminary enquiry in that regard. As noticed hereinbefore, on obtaining the complaint of the informant, a preliminary enquiry became highly necessary since it was not known, at that point of time, as to who was the officer involved in the issue of leakage of the information passed on by the informant to the department as also the identity of the informant, to the assessee concerned. It is only after the preliminary enquiry such aspects were unearthed and Annexure-A1 itself would reveal that it contained a list of 28 documents to be used, to bring home the charge levelled against the petitioner. A number of persons are also proposed to be examined. There can be no doubt those documents are to be brought on record, in accordance with law, before considering how many of them are relevant and admissible for the purpose of the enquiry and the evidence of witnesses are also to be appreciated. In such circumstances, the use of such words in the articles of charge can only be taken as nothing but an imputation which is sought to be proved against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the correctness or otherwise of the charge or the events which led to the framing of the charge against the petitioner. After going through the charges under Articles I and II the Tribunal held that they are very serious. We have already held that the charges levelled against the petitioner are very serious. It is taking note of the fact that they pertain to leakage of information regarding the identity of the informant as also the details of the information passed on by the informant to the assessee from a higher officer of the department coupled with the case of the complainant- informant that the leakage of such aspects led to threat to his life that we opined that the charges levelled against the petitioner are very serious. We may hasten to add that we shall not be understood to have held that the petitioner is responsible for the same or that he has actually committed the offending acts levelled against him. Certainly, as observed by the Tribunal, they are matters of enquiry. However, we are clear in our mind that such serious allegations are not only matters worthy to be enquired into but are matters which could not go unenquired with all seriousness, for the maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on such a conclusion/opinion that even in case he is to be punished based on the outcome of the disciplinary proceedings imposition of penalty of withholding the promotion is not warranted. The petitioner is fortunate to obtain such a promotion after the initiation of disciplinary proceedings under Annexure-A1. Certainly, that cannot be a reason to raise a contention as aforesaid. Even according to the understanding of the said situation by the petitioner, his case is only that the first respondent is not considering the charge as grave enough to warrant withholding of petitioner's promotion. Hence, he cannot canvass the position that disciplinary proceedings initiated under Annexure-A1 should be discontinued abruptly, for that reason. 17. A scanning of the contentions raised in the original petition as also the arguments advanced on behalf of the petitioner would reveal an attempt on the part of the petitioner to assail the sustainability of the charges on merits, to certain extent. According to the petitioner, the charges contained only ill-founded allegations. We have no hesitation to hold that the Tribunal had very rightly held that it would be too earl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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