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2013 DIGILAW 469 (JHR)

Ajay Kumar Singh v. C. B. I through S. P, Dhanbad

2013-04-09

R.R.PRASAD

body2013
Judgment This application has been filed for quashing of the order dated 21.4.2006 passed by the Special Judge, C.B.I, Dhanbad in R.C. case no.1(A) of 2003(D) whereby and whereunder cognizance of the offences punishable under Sections 120B, 420, 467, 468, 471 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been taken against the petitioner. At the same time, the order under which sanction for prosecution has been granted is also under challenge. 2. Before adverting to the submissions advanced on behalf of the petitioner, case of the complainant needs to be taken notice of. 3. A complaint was lodged by the C.V.O with the C.B.I alleging therein that during April, 1999 to June, 1999, officials of the CMRI, Dhanbad in connivance with each other and also with some general order supplier purchased scientific equipments, filter papers, digital burettes and chemicals at highly inflated rate on limited tender basis either by splitting the requirement or by keeping the estimated cost within Rs.2 lakh and thereby they caused wrongful loss to the extent of Rs.50 lakh to CMRI, Dhanbad. 4. Purchases at CMRI are governed by Rationalized Purchase Procedure (RPP) and Central Financial Rules. According to which, data base is to be maintained containing information pertaining to cost, brand, specification and sources of supply of the items to be procured. All indents were required to have full information such as quantity of the materials to be purchased, present stock position, information about rate contract already entered into with various Government agencies and that purchase orders were not to be split up. Limited tender was to be resorted to where estimated cost of the items was less than Rs.2 lakh but the accused persons the then Director, Finance and Accounts Officer, members of the Standing Purchase Committee to which the petitioner is one of the members in connivance with the suppliers got the process of purchase initiated upon false, incomplete and split up indents which were vetted in most faulty manner by the members of the Standing Purchase Committee and purchase orders were placed on the firms of the accused persons at inflated rates on limited tender basis in most of the cases. 5. During investigation, it was found that suppliers in connivance with the accused officials of CMRI managed to place forged quotations of various firms. 5. During investigation, it was found that suppliers in connivance with the accused officials of CMRI managed to place forged quotations of various firms. The suppliers to whom orders were placed were never the authorized dealer/manufacturer of the items. The genuine suppliers were deliberately kept out. Items were supplied to CMRI at highly inflated rate and that too in most of the cases, it was not as per specification and the purchases were made of some of the items without having any requirement of it. It was also found that illegal gratification to some of the accused public servants were given in lieu of helping them in getting purchase orders. 6. On submission of the charge sheet, cognizance of the offence was taken upon sanction being granted for prosecution. 7. Both the orders taking cognizance as well as order sanctioning prosecution have been challenged. 8. Mr. Abhay Kumar Singh, learned Sr. counsel appearing for the petitioner submitted that the petitioner who was having outstanding academic record was appointed at Central Mining Research Institute, Dhanbad as Scientist. In course of time when he was promoted to senior grade of Scientist, he was appointed as one of the members of the Standing Purchase Committee (SPC-1) and remained as such from 7.8.1997 to 19.5.1999. Standing Committee of CMRI has been constituted for making recommendation and taking decision for purchase of various articles of scientific research for various faculties of CMRI on the basis of indents provided by various branch level scientist. For purchasing certain articles when indents had been received, meeting of the SPC-1 held on 22.4.1999 whereby indents were vetted by the members of the purchase committee and thereafter the petitioner did not attend any meeting and tendered his resignation on 4.5.1999 which was accepted on 19.5.1999 and the SPC-1 was reconstituted on 20.5.1999 and it is only thereafter entire exercises of finalizing tender, placing the order to the suppliers and payments to them were undertaken and thereby the petitioner cannot be said to be responsible for purchasing the articles on the higher rate putting CMRI to loss, still the charge sheet was submitted against the petitioner, upon which cognizance has been taken, though the petitioner, in the facts and circumstances, cannot be said to have committed any offence. 9. 9. In this regard it was further submitted that almost on similar type of allegation of purchasing certain chemicals by splitting indents on inflated rate, another case was lodged with the C.B.I which had been registered as R.C. case no.16A of 2003. Upon its investigation, the C.B.I did not find any culpability on the part of any of the accused persons and submitted final form but it is quite strange to note that C.B.I has submitted charge sheet, though in this case, allegations were absolutely the same and even the decisions had been taken of purchasing articles on the same day, i.e. 29.4.1999. 10. Further it was submitted that for the same charges which is the subject matter of R.C. Case No.1A of 2003/D, the petitioner had been put on three departmental proceedings. That apart the petitioner had also been put to departmental proceeding for the charges which related to a case which had been registered by the C.B.I as R.C case no.16(A) of 2003(D), in which petitioner was exonerated from the charges whereas disciplinary authority vide its order dated 11.9.2006, 14.9.2006 and 15.9.2006 passed in different departmental proceedings inflicted punishment of reduction of one lower stage in the time scale of pay for a period of one year, though charges which were the subject matter of R.C. Case no.16(A) of 2003 (D) were the same and similar. 11. Those orders were challenged before the appellate authority and the appellate authority modified the order of punishment by substituting with ‘censure’ after recording finding that there is no mala fide or gross negligence on the part of the petitioner, though casualness appears to be there on his part. 12. 11. Those orders were challenged before the appellate authority and the appellate authority modified the order of punishment by substituting with ‘censure’ after recording finding that there is no mala fide or gross negligence on the part of the petitioner, though casualness appears to be there on his part. 12. Thus, on the aforesaid foundational fact it was submitted that on one hand, on the same and similar allegation, C.B.I does not find any culpability on the part of any of the accused persons including the petitioner who has even been exonerated from the charges in a departmental proceeding but on the other hand, not only the C.B.I has found the culpability on the part of the petitioner but even in the departmental proceeding minor punishment has been inflicted but the disciplinary authority did categorically find that there is no mala fide or gross negligence on the part of the petitioner and since the criminal element has never been found, the case be quashed keeping in view the ratio laid down by the Hon’ble Supreme Court in a case of P.S. Rajya vs. State of Bihar [ (1996) 9 SCC 1 ] and Radheshyam Kejriwal vs. State of West Bengal and another [ (2011) 3 SCC 581 ] holding therein that if the charge which is identical could not be established in the departmental proceeding where the standard of proof required to establish the guilt is quite lesser than the standard of proof required to establish the guilt in criminal case, the criminal proceeding should not be allowed to be continued, rather be quashed. 13. As against this, Mr. M. Khan, learned counsel appearing for the C.B.I and Mr. Rajesh Shankar, learned counsel appearing for the informant submitted that though the allegations were there in R.C. Case No.16(A) of 2003(D) that all the accused persons in connivance with each other and also the supplier did purchase the materials at highly inflated rate on limited tender basis either by splitting the requirement or by keeping the estimated cost within Rs.2 lakh but no element of criminality was found during investigation. However, lapses on the part of the public servants were found in purchasing the materials, as a result of which, excess payment was made to the suppliers but here in the instant case, element of the criminality was found on the part of the accused persons as it has been found in course of investigation of R.C. Case No.1(A) of 2003(D) that equipments which were purchased were of sub-standard and that certain items were purchased even without requirement and that accused supplier has paid illegal gratification to some of the accused public servants in lieu of getting purchase orders issued in their favour and that procedure relating to purchase was completely ignored, as a result of which huge loss was caused to the CMRI, Dhanbad. 14. It was further submitted that as per the rationalized purchase procedure, duties of the members of the purchase committee were to vet the specification and make them broad based, fix maximum and minimum limit of each item to be procured, mode of procurement and periodicity was to be decided but the members of the SPC-1 including the petitioner without making any recommendation with respect to mode of procurement or its periodicity put their signatures on the indents though indents had been split up by the indenter in order to put the supplier to benefit and thereby the petitioner can certainly be said to have fraudulently and dishonestly approved faulty and incomplete indent and facilitated splitting of tenders as well as manipulation of quotations. 15. Therefore, for this reason when the petitioner was put to a departmental proceeding, he was found guilty of the charges and thereby punishment was awarded. However, punishment was modified by the appellate authority whereby the petitioner has been ‘censured’ which certainly amounts punishment though it may be minor but in no case, the petitioner can be said to have been exonerated and if there has been no exoneration, the petitioner cannot take benefit of the decisions rendered in a case of P.S. Rajya vs. State of Bihar (supra) and Radheshyam Kejriwal vs. State of West Bengal and another (supra). 16. 16. It was further submitted that any finding recorded by the disciplinary authority even if it is there as in the case of the petitioner that there is no mala fide on the part of the petitioner, it will hardly affect the criminal case which gets decided on the basis of material collected during investigation and therefore, any finding recorded by the disciplinary will have no bearing upon the criminal case. Learned counsel in this respect referred to a decision rendered in a case of State (NCT of Delhi) vs. Ajay Kumar Tyagi [ (2012) 9 SCC 685 ]. 17. Having heard learned counsel appearing for the parties, it does appear that the order taking cognizance as well as order sanctioning prosecution are being sought to be quashed on the ground that in a departmental proceeding though the petitioner has been inflicted with the punishment of ‘censure ’ by the appellate authority but there has been clear cut finding that there was no mala fide on the part of the petitioner and thereby if the disciplinary authority has not found any element of the criminality in the charge which is also the subject matter of criminal prosecution, any continuation of the proceeding against the petitioner would amount to abuse of the process of the court in view of the decisions rendered in a case of P.S. Rajya vs. State of Bihar (supra) and Radheshyam Kejriwal vs. State of West Bengal and another (supra). 18. I may respectfully say that in none of those cases, referred to above, it has been held that exoneration in the departmental proceeding ipso facto would lead to exoneration or acquittal in criminal case. I may point it out that Division Bench of the Hon’ble Supreme Court when did find that two contrary views are there on the point as to whether exoneration in the departmental proceeding would lead to acquittal in a criminal case in a case of P.S. Rajya vs. State of Bihar (supra) and also in a case of Kishan Singh vs. Gurpal Singh [ (2010) 8 SCC 775 ], referred the matter to a Larger Bench in a case of State (NCT of Delhi) vs. Ajay Kumar Tyagi (supra) where following issue fell for consideration :- “whether the prosecution against an accused notwithstanding his exoneration on the identical charge in the departmental proceeding could continue or not” ? One of the parties heavily relied upon a decision rendered in a case of P.S. Rajya vs. State of Bihar (supra). However, Their Lordships after taking notice of the fact of the case of P.S. Rajya vs. State of Bihar (supra) did find that Their Lordships in a case of P.S. Rajya vs. State of Bihar (supra) has never laid down any proposition that on exoneration of an employee in the departmental proceeding, criminal prosecution on the identical charge or the evidence has to be quashed, rather on the peculiar facts appearing in that case, criminal case was quashed upon exoneration in the departmental proceeding which, according to their Lordships, was evident from the observation made in paragraph 23 of the decision rendered in a case of P.S. Rajya’s case which reads as follows: “Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant can not be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27.3.1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.” 19. Thereupon, it was held that it has been well settled that the standard of proof in a departmental proceeding is lower than that of criminal prosecution. But at the same time, it is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of evidence in the departmental proceeding or the report of the enquiry officer based on those evidences. Thereupon Their Lordships came to conclusion that exoneration in the departmental proceeding ipso facto would not lead to exoneration or acquittal in criminal case. 20. Thereupon Their Lordships came to conclusion that exoneration in the departmental proceeding ipso facto would not lead to exoneration or acquittal in criminal case. 20. Similar view seems to have also been taken earlier by the Hon’ble Supreme Court in a case of State vs. Krishna Mohan [ (2007) 14 SCC 667 ]. 21. Here in the instant case, it has already been noted that it has never been the case of the petitioner that the petitioner has been exonerated from the charges, rather he has been inflicted with minor punishment ‘censure’ but while recording the punishment of ‘censure’ observation has been made that there was no mala fide on the part of the petitioner. Even if such observation is there, it would hardly make any difference in a criminal case as criminality or no criminality is to be found out by the court in a criminal case on the basis of evidences collected by the investigating agency during investigation as has been held by the Hon’ble Supreme Court at number of occasions including in a case of State (NCT of Delhi) vs. Ajay Kumar Tyagi (supra). 22. Therefore, such observation cannot be a ground for quashing of the criminal proceeding when the C.B.I after investigation has submitted charge sheet taking into account the allegations which have been mentioned above and as such, I do not find any merit in this case and hence, it is dismissed. Appeal dismissed.