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2016 DIGILAW 2126 (GUJ)

Dharmendra Kumar Mishra v. Hasmukh Adhia

2016-10-18

A.Y.KOGJE, S.R.BRAHMBHATT

body2016
JUDGMENT : A.Y. KOGJE, J. 1. The petitioner has approached this Court alleging deliberate and willful non-compliance of the directions contained in the order passed by this Court dated 02.02.2015 in SCA No. 4633 of 2014 and has therefore prayed for initiating contempt proceedings under the Contempt of Courts Act. 2. The facts in brief necessary for addressing the issues of this petition and as recorded by this Court in the previous petition are as under:- 2.1 The petitioner was Deputy Commissioner of Income Tax at Ahmedabad with an FIR being RC No. 10(A)/2002/(GNR) came to be filed wherein it was complained by the complainant that when the petitioner was working as Deputy Commissioner of Income Tax, Circle-1(4) in the year 2002, he made demand of illegal gratification to the tune of Rs.3 lakhs and accepted first installment of illegal gratification of Rs.1 lakh from the complainant at his residence and such gratification was for favouring the complainant and his mother in various income tax related matters. On such complaint, CBI trap was lodged in presence of two witnesses and in presence of such witnesses, the complainant conversed on telephone with the petitioner and such conversion was recorded. Thereafter, the trap was lodged by CBI, in which the illegal gratification amount was recovered from the residence of the petitioner in presence of the independent witnesses. 2.2 The aforementioned incident was subject matter of the charge sheet dated 29.10.2003 wherein various charges were levelled. The departmental inquiry was conducted and the respondent was dismissed from service by order dated 30.05.2007 2.3 The aforementioned order of dismissal dated 30.05.2007 was subject matter of challenge before the Central Administrative Tribunal, Ahmedabad (“the Tribunal” for short) by the petitioner by filing OA No. 249 of 2007. By order dated 28.08.2008, the Tribunal quashed the order of dismissal, however, remitted matter back to the Disciplinary Authority, permitting the authority to proceed ahead from the stage of supply of the audio cassette of the recording of telephonic conversion. The Department challenged this order of the Tribunal before the High Court and the High Court by its order dated 11.02.2009 set aside the order of the Tribunal dated 28.08.2008 and remitted matter back to the Tribunal for fresh consideration. The Department challenged this order of the Tribunal before the High Court and the High Court by its order dated 11.02.2009 set aside the order of the Tribunal dated 28.08.2008 and remitted matter back to the Tribunal for fresh consideration. 2.4 After the remand order of the High Court, the Tribunal once again set aside the order of dismissal by its judgment dated 09.07.2009 While setting aside the order of dismissal of the Disciplinary Authority, the Tribunal reserved liberty in favour of the Disciplinary Authority to proceed further in the matter from the stage of consideration of E.O's report if there is some evidence other than those which we have held to be inadmissible. 2.5 It appears that the Department exercised the liberty reserved by the Tribunal and issued OM dated 11.01.2010 and conveyed to the petitioner the proposal under the OM. The petitioner opposed such proposal by making representation in detail and after considering such representation, the Department issued fresh OM dated 19.03.2010, which appears to be on the advice of CVC and with a view to give second opportunity to the petitioner. 2.6 At that stage, the petitioner approached the Tribunal by filing OA No. 164 of 2010, challenging the aforementioned two OMs, which came to be allowed by judgment dated 27.03.2012 2.7 In the meantime, the Department reinstated the petitioner in service vide order dated 27.01.2010, but continued to keep the petitioner under suspension. This suspension order was related to the date of the judgment of the Tribunal, which in first point of time set aside the dismissal of the petitioner. It appears that after the second judgment of the Tribunal of 27.03.2012 regarding two fresh OMs, on 04.05.2012, fresh orders were passed by the Department revoking the suspension of the petitioner. 2.8 It appears that on 08.11.2012, the trial Court convicted the petitioner for offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in Special Case No. 17 of 2003. The petitioner preferred appeal before the High Court being Criminal Appeal No. 1927 of 2012, which came to be admitted by the High Court on 07.12.2012 the attempt of the petitioner to stay the conviction up to the Supreme Court has failed. 2.9 It appears that in the meantime, the Department reinstated the petitioner in the service. The petitioner preferred appeal before the High Court being Criminal Appeal No. 1927 of 2012, which came to be admitted by the High Court on 07.12.2012 the attempt of the petitioner to stay the conviction up to the Supreme Court has failed. 2.9 It appears that in the meantime, the Department reinstated the petitioner in the service. However, the petitioner was kept under suspension by an order dated 27.01.2010 in consonance with the first judgment of the Tribunal whereby the dismissal of the petitioner was set aside, while keeping an option of further consideration with the Department open. After the second judgment of the Tribunal dated 27.03.2012, the Department passed orders afresh dated 04.05.2012 revoking the suspension of the petitioner. Another order was passed on 27.06.2012 by the Department that till the competent authority passes order with regards to considering the period of absence from duty by the petitioner, the same to be treated as on duty and that the petitioner cannot receive any increment while undergoing suspension. This decision of the respondent, as recorded in the order of this, was in response to the representation of the petitioner for releasing the salary of the entire intervening period and for granting regular increment as if the order of dismissal and or suspension were never in existence. This Department declined to regularize the period spent under suspension, which became the subject matter of OA No. 378 of 2012 filed by the petitioner before the Tribunal. This OA No. 378 of 2012 was allowed by the Tribunal vide its judgment dated 14.03.2013 The Tribunal placed reliance on Sub-rule 54A of the Fundamental Rules and directed the Department to regulate all consequential actions with respect to the petitioner and making payment as provided under the Rules. This judgment of the Tribunal gave rise to two SCAs filed by the Department against the aforementioned judgment. The First being SCA No. 9357 of 2014 where the Department challenged the judgment of the Tribunal dated 27.03.2012 in OA No. 164 of 2010, which quashed the two OMs issued by the Department, continuing further consideration of departmental proceedings against the petitioner. In second petition being SCA No. 4633 of 2014, the Department challenged the later judgment of the Tribunal dated 14.03.2013 in OA No. 378 of 2012 directing the Department to regularize the pay of the employee in terms of FR 54A(3). In second petition being SCA No. 4633 of 2014, the Department challenged the later judgment of the Tribunal dated 14.03.2013 in OA No. 378 of 2012 directing the Department to regularize the pay of the employee in terms of FR 54A(3). 2.10 It is, therefore, the judgment rendered by this Court in the aforementioned two SCAs filed by the Department against the judgment of the Tribunal, which came to be allowed and the judgments of the Tribunal have been set aside. 3. The petitioner is alleging contempt on the ground that the observations made by this Court in the aforementioned judgment dated 02.02.2015 have not been followed by the Department. 4. At this stage, it would be pertinent to reproduce hereunder the relevant paras of the aforementioned judgment dated 02.02.2015, which are findings of this Court:- “12. When the Tribunal itself had, while setting aside the order of dismissal, reserved the liberty to the department to proceed further by reconsidering the remaining evidence on record barring that which was found inadmissible and when the department in the process of so doing, issued show cause notices to the delinquent to make his representation on the proposed issues, in our opinion, the Tribunal committed serious error in interjecting at that stage and terminating the departmental proceedings without any further consideration. Whether ultimately the evidence was sufficient to drive home the charges or whether minus the evidence found inadmissible by the Tribunal, there was insufficient evidence with the authorities to hold the delinquent guilty of the charges were the issues the Tribunal ought not to have traversed at that stage. It is well settled that in validly conducted departmental proceedings on question of facts of proof of the charges, the role of the Court would be extremely limited. Only if the findings are demonstrated to be perverse in the sense that there is no evidence on record or that the evidence is not admissible or irrelevant evidence has been considered or that no reasonable person on such evidence could be expected ever to come to the conclusion that the charge is proved, would the Court be persuaded to reverse the finding of fact of the departmental authority. 13. In fact, in the present case, such a stage had not even been arrived. 13. In fact, in the present case, such a stage had not even been arrived. The department was still in the process of making up its mind whether there was evidence to hold that the delinquent was guilty of the charges levelled against him and if so, what punishment to be imposed. At this stage, the Tribunal going deep into the matter and finding fault with the office memorandums issued by the department and holding that the same were opposed to the earlier judgment of the Tribunal, was simply impermissible in the facts of the case. The entire consideration was at a premature stage and, therefore, the Tribunal ought not to have exercised such powers at that stage. Interestingly, while quashing the two OMs, the Tribunal still permitted the department to proceed further as permitted by the earlier judgment of the Tribunal. 15. Be that as it may, we are concerned with the present departmental proceedings and the judgment passed by the Tribunal ordering termination of such proceedings even before the department could take a final view on an opportunity given by the Tribunal itself. Such judgment of the Tribunal is, therefore, required to be reversed.” 5. We have heard Party-in-Person, who contends that though the petitioner was reinstated and placed under suspension from the date of his first dismissal, i.e. 30.05.2007, but the Department did not fix the pay and allowances by increasing notionally to the level of that pay to which the petitioner was entitled had he not been dismissed or suspended during the period between June 2002 to 27.01.2010 The Department had not passed any order under FR 54A(3) for arrears for the relevant period and only subsistence allowance was paid. This, according to the petitioner, was contemptuous. The petitioner has further contended that from 26.06.2002 to 30.09.2002, the petitioner was paid 50% of the pay, from 01.10.2002 to 30.09.2006, the petitioner was paid 75% of the pay and from 04.09.2006 to 30.05.2007, the petitioner was paid salary, but without any increment and from 30.05.2007 to 27.01.2010, the petitioner was paid 50% of the pay. All the aforementioned payments of salary were made by considering the salary received by the petitioner as on 26.06.2002 thus had resulted into non-payment of arrears and indirectly reduction of scale as compared to the pay received by the next junior officer. This according to the petitioner was contemptuous. 6. All the aforementioned payments of salary were made by considering the salary received by the petitioner as on 26.06.2002 thus had resulted into non-payment of arrears and indirectly reduction of scale as compared to the pay received by the next junior officer. This according to the petitioner was contemptuous. 6. Party-in-Person contended that the order of the Tribunal dated 09.07.2009 was never challenged by the Department and had attained finality. Therefore, the petitioner stood exonerated from the charge levelled against him in the OM dated 29.10.2003 Moreover, OMs dated 11.01.2010 and 19.03.2010, pursuant to the liberty reserved by the Tribunal in its order dated 09.07.2009, were also quashed and set aside by the Tribunal in OA No. 164 of 2010 vide its order dated 27.03.2012 and therefore, at that stage, the Department ought to have done needful by resorting to revising pay from the date of his initial suspension and though the judgments of the Tribunal were very much in existence, the petitioner continued to receive salary in the pay scale of a stage prior to 2002, i.e. at the time of his initial suspension, it is nothing but contempt of the directions contained in the judgment dated 02.02.2015, more particularly when the Department has been categorically directed to carry out fresh pay fixation of the petitioner in view of the changed circumstances. 7. As against this, learned Advocate Mrs. Mauna Bhatt on behalf of the Department has submitted that there is no willful disobedience of the directions contained in the judgment and order of this Court in SCA No. 4633 of 2014 and 9357 of 2014 dated 02.02.2015 She has taken this Court through the two affidavits filed on record and contended that the petitioner cannot be considered to have been exonerated from all the charges after the order dated 09.07.2009 by the Tribunal as the liberty was reserved by the Tribunal to proceed further from a particular stage of the departmental proceedings. The subsequent two OMs issued by the Department have been upheld by the very judgment, contempt of which is alleged. It is contended that the Tribunal had only quashed the penalty order and not the charge sheet against the petitioner. 8. The subsequent two OMs issued by the Department have been upheld by the very judgment, contempt of which is alleged. It is contended that the Tribunal had only quashed the penalty order and not the charge sheet against the petitioner. 8. While referring to the second affidavit, she submitted that the Department has passed an order dated 28.04.2016, which is under FR 54B(1), which is in consonance with the relevant Rules and therefore, there is no willful disobedience. It is further contended that the disciplinary proceedings were kept in abeyance as provided for under Rule 19 of CCS (CCA) Rules, 1965. 9. Considering the rival contentions of the parties, it appears that this Court has called upon to hold that the respondent authorities are guilty of contempt as the respondent authorities have not complied with the directions contained in oral judgment dated 02.02.2015, more particularly direction to carry out fresh pay fixation of the petitioner. It is pertinent to reproduce paras-16 and 17 of the oral judgment dated as under:- “16. If the Tribunal's judgment dated 27.3.2013 is set aside, the fact of this would be that the said two office memorandums dated 11.1.2010 and 19.3.2010 would be revived. The department would be at liberty to proceed further as permitted by the Tribunal in its earlier judgment dated 9.7.2009 the entire complexion of the pay fixation of the Government servant, therefore, would undergo significant change. The focus perhaps would shift from FR No. 54-A to FR No. 54-B and, in particular, sub-rule (6) thereof which provides that where suspension of the Government servant is revoked pending the finalization of disciplinary or Court proceedings, any order passed under sub-rule (1) would be reviewed in its own motion after the conclusion of the proceedings by the authority according to the provisions contained under the said rule. 17. Since the judgment of the Tribunal dated 14.3.2013 was based on final exoneration of the Government servant, which parameter has undergone a complete change by virtue of this judgment, the question of validity of the pay fixation of the employee would also completely change. The judgment of the Tribunal dated 14.3.2013 also, therefore, shall have to be set aside. The department would, however, have to refix the pay of the respondent on the basis of such changed circumstances. The judgment of the Tribunal dated 14.3.2013 also, therefore, shall have to be set aside. The department would, however, have to refix the pay of the respondent on the basis of such changed circumstances. We, therefore, dispose of both these petitions with following directions:- (1) The judgments of the Tribunal dated 27.3.2012 and 14.3.2013 are set aside. (2) The department will proceed further from the stage of the consideration of the representation of the respondent in response to second OM dated 19.3.2010 If he has not made any representation so far, it would be open for him to do so latest by 15.3.2015 The department thereafter will pass fresh order in accordance with law without any further delay. (3) The department shall carry out fresh pay fixation of the respondent in view of the changed circumstances. Such fresh order will be passed latest by 28.2.2015.” 10. Considering the aforesaid and considering the fact that pending the proceedings before the Tribunal the petitioner came to be convicted for serious offence of bribery and therefore, under the relevant provisions, the Department was entitled to take steps against the petitioner, which the Department did by issuing the order of dismissal on the ground of conviction. Therefore, as provided for under Rule 54, the action taken by the Department was during the pendency of the Court proceedings. This Court cannot subscribe to the contention of the petitioner that once the order of dismissal pursuant to the departmental proceedings has been set aside and that there was no other departmental proceedings against the petitioner, in that eventuality, the petitioner ought to have been treated as if the petitioner is not facing any proceedings and therefore, the Department ought to have reinstated him as if he has earned complete exoneration. The facts narrated hereinabove would clearly indicate that exoneration was on technical ground and that the proceedings were to proceed from a particular stage and therefore, when the Department passed orders of fixing the pay scale, the same were done during the period when the Court proceedings were pending and therefore, they have acted under Rule 54 of the Fundamental Rules. 11. In any case of the matter, the Department having understood the oral judgment of this Court in the manner that would be understood to be legal interpretation according to the Department then such action of the Department cannot be termed to be contemptuous. 11. In any case of the matter, the Department having understood the oral judgment of this Court in the manner that would be understood to be legal interpretation according to the Department then such action of the Department cannot be termed to be contemptuous. This Court could not embark upon exercising to decide the correctness of the decision of the Department while exercising contempt jurisdiction. The petitioner, if being aggrieved by the decision of the Department since such decision would affect or otherwise he was entitled to receive by way of salary/arrears then again it would be a matter of interpretation, which will not fall in the realm of contempt jurisdiction. In fact, during the course of submissions, it was brought to the notice of this Court that before the CAT, even today, proceedings are pending in the form of OA No. 246 of 2014 challenging an OM dated 23.01.2014, by which, according to the petitioner, the Department has sought to continue the departmental proceedings from the stage before charge sheet. Therefore, this Court is of the opinion that when the dispute is still at large before the CAT and which is touching upon the subject matter of this petition, this Court will not exercise the contempt jurisdiction. 12. In view of the aforementioned facts, this Court is not inclined to exercise the contempt jurisdiction. The petition therefore deserves to be dismissed and is dismissed.