Shri Rajesh Vatsa v. The Union of India

: :: :: Mr. Kh. Tarunkumar, Advocate Mr. S. Samarjeet, Sr.PCCG

22.09.2022 JUDGMENT AND ORDER (ORAL) This writ petition has been filed to quash the impugned memorandum dated 10.1.2014 and to direct the respondents to WP(C) No 561 of 2014 P a g e | 2 allow the petitioner to serve as Commandant of the CRPF as usual without any disturbance from any angle.

The case of the petitioner is that on 10.1.2014, the petitioner was served with article of charges for solemnizing a second marriage along with a woman, namely Rally Chothe during the subsistence of his first marriage without getting divorce from his first wife. He was also charged for committing adultery with the said woman and further for executing a joint affidavit along with the above said woman by declaring that he had married the said woman and from their wedlock a son was born.

Further case of the petitioner is that a criminal complaint case was also filed by the above said woman before the Chief Judicial Magistrate, Imphal West under the provisions of Domestic Violence Act, 2005 by claiming maintenance allowances as well as custody of the child on the ground that he married her under Kom customary law. In the said criminal complaint case, the petitioner has filed his written statement denying charges levelled against him.

According to the petitioner, on 28.2.2014, an Enquiry Officer was appointed to enquire into the charges framed against WP(C) No 561 of 2014 P a g e | 3 the petitioner. Objecting the appointment of Enquiry Officer, on

20.5.2014, the petitioner submitted a representation to the DIGP, GC, Imphal on the ground that the said Enquiry Officer was found to be involved in conducting DNA test and he had spoken with the complainant. On 21.5.2014, the petitioner submitted a detailed representation the Enquiry Officer, following by another representation dated 22.5.2015 requesting to stay the ongoing departmental enquiry till the finalization of criminal case filed against him by Rally Chothe.

According the petitioner, impugned memorandum is not sustainable because the authority who had issued the same is not the disciplinary authority and the articles of charges has been issued by the disciplinary authority without authority of law and, therefore, the same is non-est in the eye of law. The DIG (CR & Vigilance) is not authorized to represent the President of India. If any order or memorandum is to be issued in the name of the President, the same is to be issued by the competent authority of the concerned Ministries, including Ministry of Home Affairs. The Ministry of Home Affairs cannot again sub- delegate his power to some other subordinate officer. Hence, the writ petition. WP(C) No 561 of 2014 P a g e | 4

Respondents 1 and 2 filed affidavit-in-opposition stating that as per Ministry of Home Affairs, Government of India’s notification dated 3.11.21958, the Deputy Directors/Assistant Directors of the Headquarters have been authorized to authenticate to convey Presidential orders. The Deputy Director/AD posted in Headquarters have been re-designated as DIG vide Government of India letter dated 14.10.199. Accordingly, the designation of executive DD/AD etc. renamed DIG/ADIG/Commandant. The DIG (CR & Vigilance) has been entrusted the duties of CR/ACRs, disciplinary & vigilance cases in respect of all Group “A” officers, including maintenance of ACRs of officers vide DIG order dated 10.2.2009. Hence, the DIG (CR & Vigilance) Directorate has authenticated the Presidential order dated 10.1.2014, which is within his competency.

It is stated that the Department is not supposed to wait for the outcome of the judgment from the Court to ensure necessary action as per the provision of Rule 19 of CCS (CCA) Rules, 1965. Under the provision of instructions issued by the Government of India, in serious cases involving offences such as bribery/corruption etc., action should be launched for prosecution as a matter of course and a departmental enquiry involving the very same charges WP(C) No 561 of 2014 P a g e | 5 as is involved in the criminal proceedings is not barred. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of serious charges levelled against him may have to be considered by the competent authority to proceed with departmental action. However, if the charge in the criminal case is of a grave nature, which involves complicated question of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. This will depend upon the nature of offence and the evidence and material collected against the Government servant during investigation or as reflected in the charge sheet. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case, unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.

It is stated that the request for change of Enquiry Officer has been examined along with existing instructions and rules and competent authority observed that as per GOI decision No.14 below Rule 14 of CCS (CCA) Rules, whenever an application is moved by charged officer against the IO on grounds of bias, the proceedings should be stayed and the application referred, along WP(C) No 561 of 2014 P a g e | 6 with the relevant material, to the appropriate reviewing authority for considering the application and passing orders therein. As per record available in the instant case, no DNA test of the petitioner has been conducted and V.K.Bisht, DIG has not been listed as prosecution witness and he had no role in conduct of preliminary enquiry. Accordingly, the grounds of biasness mentioned by the petitioner in his application found to be imaginary in nature.

It is stated that as per the provision of Rule 21(1)(2) of CCS (Conduct) Rules, 1964 and decision of the GOI thereunder, no Government servant shall enter into, or contract, a marriage with a person having a spouse living, and having a spouse living, shall enter into or contract, a marriage with any person. However, the Central Government may permit a Government servant to enter into, or contract, any such marriage subject to some conditions prescribed by the GOI under the aforesaid Rules. A mere charge sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order, which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so.

It is stated that the submission of the petitioner that charges against him have been framed by an incompetent authority WP(C) No 561 of 2014 P a g e | 7 without jurisdiction and he has been deprived from his fundamental rights guaranteed by the Constitution of India are far from truth, as the competent authority taking into consideration all relevant facts

of the case, including the fact that allegations have been prima facie established against him in the preliminary enquiry report, has ordered major penalty proceedings which is within the parameters of laid down instructions/rules. Hence, prayed for dismissal of the writ petition.

Assailing impugned memorandum, Mr. Kh. Tarunkumar, the learned counsel for the petitioner submitted that the impugned memorandum issued by the DIG (CR & Vigilance) is not sustainable, as the said authority is not the disciplinary authority of the petitioner, who is holding the rank of Commandant in the CRPF and that the disciplinary authority is the Ministry of Home Affairs. Since the petitioner is holding the post of Commandant, the authorities of the Ministry of Home Affairs, Government of India has to frame the articles of charges against the petitioner. Since the articles of charges not having been issued by the disciplinary authority, the same is non-est in the eyes of law. He would submit that the proceedings against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority, as the WP(C) No 561 of 2014 P a g e | 8 petitioner was promoted to the post of Commandant by the President of India. The DIG (CR & Vigilance) is not authorized to represent the President of India and that if any order or memorandum is to be issued in the name of the President, the same is to be issued by the competent authorities of the concerned Ministries, including Ministry of Home Affairs.

The learned counsel further submitted that if the President of India delegates his power to some other authority, it should be the Ministry of Home Affairs, as per the decision of the Government of India. Therefore, the Minister of Home or Minister of Home Affairs cannot again sub-delegate his power to some other subordinate officer.

The learned counsel further submitted that even if the approval of the Minister of Home Affairs is taken for initiation of disciplinary proceedings against the petitioner, no such approval was obtained for framing of charges and that charges was framed without the approval of the concerned Minister. Therefore, the entire proceedings initiated against the petitioner is vitiated.

Coming to the appointment of Enquiry Officer, the learned counsel submitted that Enquiry Officer should not have any WP(C) No 561 of 2014 P a g e | 9 connection with the issue involved in the enquiry. However, in the instant case, the Enquiry Officer Vimal Kumar Bishat was believed to have involved in conducting DNA test. Therefore, it is unfair to appoint him as Enquiry Officer in the departmental enquiry initiated against the petitioner. The said fact was brought to the knowledge of the Director General, CRPF and the Director General has not taken action. Since the Director General has not taken any action, the petitioner submitted representation to the Enquiry Officer himself objecting his appointment. However, all his requests were not considered and the enquiry has been proceeded. According to learned counsel, if the enquiry is proceeded with the above said Enquiry Officer, serious prejudice would be caused to the petitioner.

The learned counsel urged that the departmental enquiry initiated against the petitioner and the pending criminal case are one and the same and that both are based on an identical and similar set of facts and that the criminal case against the petitioner involves complicated questions of law and fact. Arguing so, the learned counsel for the petitioner prayed for setting aside the impugned memorandum and to allow the petitioner to serve as Commandant of the CRPF as usual without any disturbance. WP(C) No 561 of 2014 P a g e | 10

Per contra, Mr. S. Samarjeet, the learned Sr. PCCG for the respondents submitted that pursuant to the complaint lodged by Rally Chothe alleging non-payment of maintenance and not abiding the agreement between her and the petitioner, a fact finding enquiry was conducted by BD. Das, DIG and submitted a report to the IG M&N Sector. The fact finding authority after conducting enquiry submitted a report to the effect that marriage between the petitioner and the complainant had solemnized marriage on

13.5.2022 as per Kom community custom and master Karan Vatsa @ Richard was born from their wedlock. He would submit that since serious allegations have been levelled against the petitioner, IG, Rajasthan Sector, CRPF, who was posted in 3 Bn, CRPF was requested to conduct a preliminary enquiry. Ram Charitra, DIG, CRPF was nominated to conduct preliminary enquiry, who after conducting enquiry, submitted a report to the effect that the allegations levelled against the petitioner were prima facie proved.

The learned counsel further submitted that since the allegations were established in the preliminary enquiry, a proposal was sent to Ministry of Home Affairs on 2.12.2013 for obtaining order of competent authority to initiate major penalty proceedings against the petitioner as per the provisions of Rule 14 of the CCS WP(C) No 561 of 2014 P a g e | 11 (CCA) Rules, 1965. The Ministry of Home Affairs, vide UO note dated 3.11.2013, conveyed the approval of the competent authority for initiation of major penalty proceedings against the petitioner. Accordingly, on the basis of the orders of the competent authority of the Ministry of Home Affairs, departmental enquiry proceedings under Rule 14 of the CCS (CCA) Rules, 1965 has been initiated against the petitioner vide Presidential Memorandum dated

10.1.2014.

The learned counsel then submitted Presidential memorandum of articles of charges along with copies of listed prosecution documents have been served to the petitioner on 27.1.2014. The appellant, vide application dated 28.1.2014, instead of submitting his written statement within 10 days, requested for providing complete preliminary enquiry file, correspondence made between Rajasthan Sector, opinion of the legal branch on DNA test, if any, opinion of hand writing expert if any, verification of date of birth of the child etc.

The learned counsel then submitted that the DIG (CR & Vigilance) has been entrusted duties of CR/ACRs, disciplinary and vigilance cases in respect of all Group “A” officers, including maintenance of APARs of officers vide DIG (Org) order dated WP(C) No 561 of 2014 P a g e | 12

10.2.2009. Hence, DIG (CR & Vigilance) Directorate has authenticated the Presidential order dated 10.1.2014. As such, the Presidential order dated 10.1.2014 issued by the DIG (CR & Vigilance) was well within his competence as per the approval conveyed by Additional Secretary, Ministry of Home Affairs. He would submit that as per Rule 3 of the Transaction of Business Rules, the Minister is competent to delegate his functions to the Secretary or any other officer by general or special order and on such delegation, it would not be necessary to take the Minister’s order in such cases.

The learned counsel for the respondents submitted that vide order dated 13.7.2018, the Ministry of Home Affairs conveyed that the competent authority i.e. Hon’ble Home Minister has accorded approval to the disciplinary proceedings initiated against the petitioner. Therefore, the impugned memorandum has been issued without the approval of the Hon’ble Minister is untenable.

The learned counsel urged that the contentions of the petitioner are mainly based on irrelevant issues relating to the orders under which the departmental enquiry was initiated against the petitioner and not on the core issue i.e. the seriousness of WP(C) No 561 of 2014 P a g e | 13 allegations levelled against him in the articles of charges. Ever since the departmental enquiry was ordered against the petitioner in the year 2014, the petitioner has been approaching this Court to get quashed the departmental proceedings on one pretext or the other and the said enquiry has already been delayed in view of the stay order passed by this Court.

The learned counsel next submitted that the petitioner has filed the present writ petition seeking to set aside the memorandum of charges even before the departmental enquiry was completed or any penalty was imposed on him. Since the departmental enquiry is still in its preliminary stage, it would be premature for this Court to interfere in the matter. Thus, a prayer is made to dismiss the writ petition.

This Court considered the rival submissions and also perused the materials available on record.

The petitioner questioned issuance of impugned memorandum of articles of charges dated 10.1.2014 by the DIG (CR & Vigilance) stating that the DIG (CR & Vigilance) is not the disciplinary authority of the petitioner, who is holding the rank of Commandant in the CRPF, and his disciplinary authority is WP(C) No 561 of 2014 P a g e | 14 the Ministry of Home Affairs and only the officials of the Ministry of Home Affairs have to frame articles of charges against him in the name of the President of India and since the articles of charges has been issued without authority of law, the same is non-est in the eye of law. He would submit that the DIG (CR & Vigilance) is not authorized to represent the President of India. Further, if the President of India delegates his power to some other authority, it should be the Minister of Home Affairs and the Minister of Home Affairs or Ministry of Home cannot again sub-delegate his power to some other subordinate officer. Even if the approval of the Minister of Home Affairs is taken for initiation of disciplinary proceedings against the petitioner, no approval was obtained for framing of charges.

On the other hand, it is the say of the respondents that as per the provision of GoI decision No.1 below Rule 15 of the CCS (CCA) Rules, 1965, where the President is the prescribed disciplinary/ appellate/reviewing authority and where the Minister concerned has considered the case and has given his orders that an order may be authenticated by an officer, the officer so authorized can issue order in the name of the President. Thus, the impugned Presidential memorandum of articles of charges has WP(C) No 561 of 2014 P a g e | 15 been authenticated by the DIG (CR & Vigilance) Directorate General, CRPF. Further, the DIG (CR & Vigilance) has been entrusted the duties of CR/ACRs, disciplinary and vigilance cases in respect of all Group “A” officers, including maintenance of ACRs of officers. Hence, the DIG (CR & Vigilance) Directorate has authenticated the Presidential order dated 10.1.2014, which is within his competency.

The petitioner was issued with impugned memorandum of articles of charges dated 10.1.2014 along with articles of charges calling upon him to submit his written statement of his defence within 10 days of the receipt of the said memorandum. The following are the gist of articles of charges framed against the petitioner: “Article-I That the said Shri Rajesh Vatsa, Commandant 03 Bn CRPF (IRLA-3124) whiel posted and functioning as Dy. Commandant in 112 BN, Loktak, Imphal (Manipur) from 1999 and later at Dhubri, Assam, committed a serious misconduct in that he met Ms. M.RallyChothe, resident of Lower Keirap village, PO-Loktak Project, Manipur during a Civic Action Programme and later entered in adultery with Ms. M.RallyChthe. Thus, Shri Rajesh Vatsa, Commandant 03 Bn WP(C) No 561 of 2014 P a g e | 16 CRPF misused his official position and failed to maintain absolute integrity and acted in a manner unbecoming of a Govt. servant thereby violating the provisions contained in Rule 3(1)(i)&(iii) of the Central Civil Service (Conduct) Rules, 1964.

1964.”

Ms. M Rally Chothe has also filed criminal complaint against the petitioner before the Chief Judicial Magistrate, Imphal West with a prayer to grant maintenance at the rate of 15,000/- per month, protection and custody of the child under the Prevention of Women from Domestic Violence Act, 2005 and the said case is still pending. WP(C) No 561 of 2014 P a g e | 18

Pursuant issuance of impugned memorandum dated 10.1.2014, on 28.2.2014, the DIG (CR & Vigilance) issued an order appointing one Vimal Kumar Bisht, DIG, GC, CRPR, Imphal as Enquiry Officer to inquire into the charges framed against the petitioner. The very appointment of the Enquiry Officer has been questioned by the petitioner on the ground that the Enquiry Officer found to be involved in conducting the DNA test of the petitioner had spoken with the complainant and other witnesses. Accordingly, he prayed for changing the Enquiry Officer. As reported, the disciplinary proceedings against the petitioner is pending at that stage and also pursuant to the interim order of stay of this Court, the enquiry proceedings has not been proceeded with further.

This Court is not delved into the allegations levelled against the petitioner. The respondents contended that ordinarily a writ petition should not be entertained against a mere show cause notice or charge sheet and the present writ petition therefore is liable to be dismissed. Since the petitioner has questioned the competency of the DIG (CR & Vigilance) in issuing the impugned memorandum, this Court is inclined to deal with the said aspect only in this writ petition. WP(C) No 561 of 2014 P a g e | 19

According to the petitioner, he being holding the rank of Commandant in the CRPF, his disciplinary authority is the Ministry of Home Affairs and the officials of the Ministry of Home Affairs, Government of India alone have to frame articles of charges against him in the name of the President of India and DIG (CR & Vigilance) has no power to initiate disciplinary action against the petitioner.

On the contrary, the respondents contended that under the provision of Government of India’s decision No.1 below Rule 15 of CCS (CCA) Rules, 1965 in those cases where the President the prescribed disciplinary/appellate/reviewing authority and where the Minister concerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorized to authenticate the order in the name of the President and in the case on hand, the Minister concerned has considered the case and authorized the DIG (CR & Vigilance) to initiate disciplinary proceedings against the petitioner.

As per Government of India’s decision in serious cases involving offences such as bribery, corruption etc. action should be launched for prosecution as a matter of course and a departmental inquiry involving the very same charges as is involved WP(C) No 561 of 2014 P a g e | 20 in the criminal proceedings is not barred. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of serious charges levelled against him may have to be considered by the competent authority to proceed with departmental action. However, if the charge in the criminal case is of a grave nature, which involves complicated question of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of criminal case. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.

Admittedly, in the case on hand, as rightly argued by learned counsel for the petitioner, the DIG (CR & Vigilance) is not authorized to represent the President of India on the date of issuance of the impugned memorandum of articles of charges. Mere upgradation of post of ADIGP to DIGP and ADIG (Pers-1) was renamed as DIG (CR & Vigilance) does not mean that DIG (CR & Vigilance) has been entrusted to initiate disciplinary proceedings against a person holding the post of Commandant, who was promoted by the orders of the President of India. WP(C) No 561 of 2014 P a g e | 21

It is settled that charge sheet/charge memorandum not having approval of the disciplinary authority would be non-est in the eye of law.

At juncture, learned counsel respondents, by relying upon the ex-post facto approval of the Home Minister, submitted that, on 4.7.2018, a note file was put up by the Under Secretary (P-II) before the Ministry of Home Affairs seeking approval of the disciplinary proceedings initiated against the petitioner. Upon perusal of the note file, the Home Minister accorded approval to the disciplinary proceedings initiated against the petitioner.

The memorandum of charges is dated 10.1.2014 and challenging the same, the present writ petition was filed on

1.8.2014. Pending writ petition only, a note file was placed before the Home Minister seeking ex-post facto approval and the Home Minister has accorded ex-post facto approval to the disciplinary proceedings initiated against the petitioner on 11/13.07.2018.

Admittedly, in the instant case, the disciplinary authority had not granted approval at any stage before initiation or on the date of issuance of the impugned memorandum. The ex- WP(C) No 561 of 2014 P a g e | 22 post facto approval to the disciplinary proceedings initiated against the petitioner was given only during July, 2018 when the departmental proceedings was pending that too after filing the writ petition. The proof showing the grant of ex-post facto approval by the Home Minister according approval the disciplinary proceedings initiated against the petitioner has not been produced by the respondents on their own, however, when the Court issued a direction during the course of arguments to produce the ex-post facto approval, then only the respondents have produced the same.

In Sunny Abraham v. Union of India, Civil Appeal No.7764 of 2021, decided on 17.12.201, the Hon’ble Supreme Court held: “11. …. The ratio in the judgments in the cases of Ashok Kumar Das [(2010) 3 SCC 616] and Bajaj Hindustan Limited [(2016) 12 SCC 613], in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex-post approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no WP(C) No 561 of 2014 P a g e | 23 stipulation of taking “prior” approval. But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the Disciplinary Authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that is Ashok Kumar Das (supra) and Bajaj Hindustan (supra) would not aid the respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.”

Sub-clauses (2) and (3) of Rule 14 of CCS (CCA) Rules, 1965 contemplates independent approval of the disciplinary authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. Therefore, approval of the disciplinary authority should be there before issuing the charge memorandum. In the instant case, before issuing the memorandum of charges, no approval of the disciplinary authority was accorded.

In Sunny Abraham (supra) the Hon’ble Supreme Court has also considered the aspect, namely approval for initiating WP(C) No 561 of 2014 P a g e | 24 disciplinary proceeding and approval to a charge memorandum and held as under:

12. …… Life cannot be breathed into the stillborn charge memorandum. In our opinion, approval initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. ….

In the light of the decision of the Hon’ble Supreme Court in the case of Sunny Abraham (supra), when we considered the instant case, as stated supra, independent approval of the disciplinary authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum is required. Ultimately, it appears that no approval for initiation of departmental proceedings and issuance of charge memorandum were put up for approval before initiation of the proceedings. On the other hand, only ex-post facto approval of the Home Minister according approval to the disciplinary proceedings WP(C) No 561 of 2014 P a g e | 25 initiated against the petitioner is available in this case that too after filing of the writ petition. Though the impugned memorandum of charges is dated 10.1.2014, the disciplinary proceedings has not commenced and is pending all these years. Continuing the departmental proceedings based on the impugned memorandum of articles dated 10.1.2014 is inappropriate.

This Court is conscious of the fact that the allegations levelled against the petitioner are serious in nature and ought not to be scuttled on purely technical ground. Therefore, it would be appropriate to reserve liberty to the respondents to issue a fresh memorandum of charges under the applicable Rules of CCS (CCA) Rules, 1965. As stated supra, though the impugned departmental proceedings was initiated way back in the year 2013 end and 2014 beginning, there was no progress till date because of the pendency of the writ petition and the interim order granted by this Court. Therefore, the department’s power to pursue the matter has been reserved and not foreclosed taking note of the allegations levelled against the petitioner.

Taking into consideration the fact that the proceedings against the petitioner relate to the incidents that took place in the years 2002 and 2011 and the proceeding was initiated only in the WP(C) No 561 of 2014 P a g e | 26 year 2014, this Court directs that in the event the department wants to continue with the matter and if the disciplinary authority in terms of the rules is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued strictly in accordance with law, in any event not beyond a period of two months.

In view of the above finding arrived at by this Court, the impugned memorandum dated 10.1.2014 is not sustainable in the eye of law and therefore, the same is liable to be set aside.

In the result, the impugned memorandum dated

10.1.2014 is set aside. If the respondent authorities want to continue with the disciplinary proceedings against the petitioner and if the disciplinary authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued in accordance with law within a period of two months. There will be no order as to costs. JUDGE FR/NFR Sushil WP(C) No 561 of 2014