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2024 Supreme(Online)(CAT) 13919
CENTRAL ADMINISTRATIVE TRIBUNAL
Rajinder S Dogra, Judicial Member, Ram Mohan Johri, Administrative Member
Pervez Ahmed Zargar – Appellant
Versus
Union Territory of Jammu and Kashmir – Respondent
O.A. No. 313/2020
For the Appellants/Petitioners: Mr. Faheem Shokat Butt
For the Respondents: Mr. Hunar Gupta, DAG
Penalty of withholding promotion quashed for failing to follow Rule 33 (no inquiry officer appointed post-reply) and Rule 35 (no representation opportunity), distinguishing vigilance fact-finding from mandatory regular departmental inquiry procedure.
Headnote:(A) J&K Civil Services (Classification, Control & Appeal) Rules, 1956 - Rules 30(iii), 33, 34, 35 - Penalty of withholding promotion imposed without completing regular departmental inquiry procedure under Rule 33 (no inquiry officer appointed after reply to charges) and without affording opportunity of representation under Rule 35 (mandatory for minor penalties) - Fact-finding vigilance inquiry distinct from regular departmental inquiry - Imposition of penalty relying on vigilance recommendations and incomplete process after serving chargesheet violates mandatory procedure - Penalty quashed for procedural non-compliance. (Paras 7, 8)
(B) Departmental Inquiries - Procedure mandatory - After serving charges under Rule 33, appointing authority must assess reply and appoint inquiry officer if proceeding further; straight imposition of penalty without inquiry illegal - Fact-finding inquiry cannot substitute regular departmental inquiry. (Para 7)
(C) Minor Penalties - Rule 35 - Adequate opportunity of representation mandatory before imposing penalties under Clauses (i), (ii), (iii), (v) of Rule 30 unless waived for recorded reasons - Non-compliance renders order illegal. (Para 8)
Facts of the case:
Applicant, a revenue official, challenged order imposing penalty of withholding promotion based on vigilance inquiry report alleging involvement in unauthorized land regularization under Roshni scheme due to issuance of revenue extract found in file. Charges served, reply submitted denying involvement as extract issued on superior's direction for perusal, not scheme process. Penalty imposed without full inquiry or representation opportunity, despite criminal investigation finding insufficient evidence.
Findings of Court:
Impugned order quashed for violating Rules 33 and 35; no inquiry conducted post-reply, no representation opportunity given; charges unsubstantiated as per subsequent investigation; penalty excessive without time limit.
Issues: Whether penalty imposed following mandatory departmental inquiry procedure under Rules 33 and 35; whether vigilance fact-finding substitutes regular inquiry; validity of penalty absent inquiry report and representation.
Ratio Decidendi: Regular departmental inquiry under Rule 33 requires appointment of inquiry officer post-reply if proceeding, distinct from vigilance fact-finding; Rule 35 mandates representation opportunity for withholding promotion; shortcut procedure illegal, amounting to 'putting cart before horse'.
Result: Original Application allowed; impugned penalty order quashed and set aside.
| Table of Content |
|---|
| 1. factual background of impugned promotion withholding order. (Para 1 , 2) |
| 2. applicant's arguments on cca rules 33 & 35 violations. (Para 3 , 4) |
| 3. respondents defend inquiry findings and appeal availability. (Para 5) |
| 4. non-compliance with rule 33 inquiry procedure invalidates punishment. (Para 6 , 7) |
| 5. mandatory rule 35 representation opportunity not provided. (Para 8) |
| 6. insufficient evidence and disproportionate indefinite punishment. (Para 9) |
| 7. impugned order quashed for procedural irregularities. (Para 10) |
ORDER
(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)
1. Being aggrieved of order impugned bearing No.33-FC Revenue of 2020 dated 03.02.2020 issued by order of Financial Commissioner Revenue (J&K) based upon enquiry report dated 08.12.2016 submitted by Additional Deputy Commissioner (District Vigilance Officer), Doda to the State Vigilance Commission on the basis of which the penalty of withholding promotion has been imposed upon the applicant, he approached this Tribunal seeking quashment of impugned orders.
2. The applicant thus invoked the jurisdiction of this Tribunal. The respondents also filed their reply/objections and to which the applicant filed rejoinder. After completion of the pleadings the matter was finally heard on 03.10.2024.
3. The learned Counsel for the applicant reiterated the ground taken by applicant in his OA. The grounds taken by the applicant is as follow: -
i) The State Vigilance Commission, vide No. VO-Rev-G- 207/15-15523 dated 05.10.2015 forwarded a complaint of Lakshmi Chand against one Mansoor Ahmed and Revenue Officials of Thathri to District Vigilance Officer, Doda (respondent No. 4) for conducting an enquiry and submission of report. The complaint was with regard to facilitating the entry in Khasra No.516 which lead to regularization of land in favour of Mansoor Ahmed under the provisions of J&K State Lands (Vesting of Ownership to the Occupants) Act popularly known as “Roshni Act”.
ii) A Committee of three officials headed by the then Assistant Commissioner Revenue, Doda was constituted to enquire the matter and submit detailed report alongwith comments and specific recommendations.
iii) An enquiry report bearing No. DVO/D/Vigilance/ 2016/938-40 dated 08.12.2016 has been submitted by respondent No. 4 to the State Vigilance Commission recommending the rejection of mutation and strict disciplinary action against the applicant and Naib Tehsildar Sh. Rajesh Kumar Thakur. So far the applicant is concerned the Committee held that his involvement cannot be ruled out though he stated that all the process of Roshni file has been done before his posting but the copy of Khasra Girdwari prepared and issued by him on 12.09.2014 has been found in the Roshni File.
iv) The Anti Corruption Bureau has registered FIR bearing No. 01/2019 P/S ACB Doda on 01.02.2019 and referred the matter to Revenue Department for initiation of regular departmental enquiry vide letter dated 08.02.2019.
v) The Regular Departmental Inquiry has been initiated against the applicant in terms of Rule 33 of Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 (For brevity hereinafter to be referred as CCA Rules, 1956). Memorandum bearing No.Rev/Vig/74/2017 dated 25.03.2019 alongwith Article of Charge and Statement of Imputation has been served upon the applicant and he was advised to submit written statement of defence before the Under Secretary to Govt. Revenue Department not later than 15 days. The Article of Charge against the applicant is reproduced as follows: -
“Sh. Parvaiz Ahmed S/o Atta Mohd Zargar, R/o Lopa Thathri, the then Patwari Halqa Jangalwar A/p Patwari Halqa Akalpur, Jammu was involved in the process of Roshini file but the copy of Khasra Girdawari prepared and issued by you on 12.09.2014.”
vi) The applicant submitted his written statement in defence on 03.06.2019 and denied the charges against him. In the said reply the applicant stated that at that relevant period of time
