CBI investigation against judges in PF case

  

The news “CBI indicts Supreme Court Ex-Judge,23 others in PF Scam” indicates only tip of the iceberg. I have been highlighting the dirt and slush since long. My blogs Law Minister act fast to save the system and Law Minister  fine tunes judicial system etc. are tiny steps in that direction. If a bureaucrat commits misconduct his actions are subject to scrutiny by various agencies including the judiciary. But an errant judge in harness is invincible. That is why despite several cases of misconducts no judge could be punished. We have only one or two instances when action could be taken only after their retirement.
Now the disturbing news is that the Centre is mulling to increase the retirement-age of judges without safeguards.

Indian diplomacy reduced to mockery-failure of govt. leadership

vijay kumar Sinha 

advocate

A few days back I wrote in my blog “P.M dont yeild ground to Pakistan” about repeated humiliating diplomatic fiascos while dealing with a rogue state like Pakistan. Why the Indian Prime Ministers are committing blunders one after another? Whenever misplaced generously has been shown to Pakistan, Indian leadership has been taken in. Why the Indian leadership is so naïve to the point of stupidity?
Why Manmohan Singh is so eager to engage Pakistan through dialogue at higher levels even when no national interests or purpose is served? Why the Indian efforts are ridiculed and jeered at by Pak-political puppets dancing to the tune of their master the Pak army?
Manmohan Singh’s efforts to thoughtlessly enter into dialogue with Pakistan lack pragmatism and shrewdness.
The solution is be tough, stop acting under US influence, stop unnecessary rail-bus communications to check infiltration, take back MFN status, talk only to Pak army the real power centre and rebuff the sham political leadership as they intend to derive legitimacy through Indian diplomatic negotiations, crush J&K disturbances and prosecute secessionist elements and lastly the tit for tat formula. The small country Israel should be a role model. Shun futile talks to placate domestic constituencies for votes.
At the same time I must support S.M.Krishna the Minister for External Affairs for his bold performance in Islamabad despite hamstrung by the weak govt. leadership.

Hindus persecuted,temples desecrated,houses ravaged in Pakistan

The news-item to day "pak Hindus attacked, evicted from their homes" published in a popular english daily has sddened me no bounds.

Has Manmohan Singh Govt. done any thing to take up the matter with Pakistan Govt. diplomatically or otherwise? Only a few months back a Pak Sikh was beheaded while another could save his life by paying huge ransom. A number of temples ravaged and land-plots encroached upon and, here the Union & State govts. are fortifying Kabristans on public money. Public money is also wasted on maintaining wakf boards.

We parted with a vast chunk of land in form of Pakistan and Bangladesh but the problem still remains a bleeding wound due to inapt handling by treacherous politicians who care vote-politics more than the national interests. Fake recommendations of fake committees like that headed by Sachchar and Rangnath Mishra are often debated and cited by the corrupt, dishonest and anti national politicians to high light so called wretched conditions of Muslims. But what about millions of naked- starving Hindus in India?

The sectarian politics was initiated by late Indira Gandhi which has become the main agenda of all the political parties. This is perilous and hazardous. It has become fashion to denounce every thing that relates to Hindus in order to be "secular and progressive".This is hypocrisy. It is therefore condemnable.

Only Indians can live in India.

Bihar villages making electricity from husks

It is great news that 120 villages of Bihar have extricated themselves from the curse of darkness by producing electricity from husks. The technology has been provided by a redoubtable team led by Gyanesh Pandey who has beeen working in Bihar having resigned a cushy job in the USA.

A great tribute to his grit, dedication and selflessness.

Leadership to be blamed for Kashmir inferno

Kashmir turmoil is ignited and fanned by the separatists like Mirwaiz Farooque, lone and Gilani. Why the Central and the state govts are treating them with kid gloves? Why did not they arrest and prosecute Mirwaiz when he met a Chinese official in POK? In fact these people hobnob with the foreigners quite frequently without proper permission. Why these jokers have been offered security by the govts on public money? Instead of punishing these traitors the govts are treating the central forces as a whipping boy. Now some of the separatists have been arrested belatedly. It is a very bad strategy. Had it been done much earlier the misguided youths would not have lost their lives. The leadership is to be blamed and nobody else. Dialogue sustains on strength and not timidity and cowardice. The arrested must be prosecuted for waging war against State. This will test the sincerity of the Union and J&K govts. both.

IDS Dhariwal unfit to act as quasi judicial authority

CAG TO ACT ON THE FOLLOWING

E-mailed23.12.08

To

The Dy. C.A.G of India
O/O C.A.G of India,
10, Bahadur Shah Zafar Marg,
New Delhi

Sub:- Non-Observance of Rules & Laws in decidingstatutory appeal dt. 12.05.08; and, inaccuracies & misleading findings inorder no. AG (A&E)/CC/PF/VKS/98dt. 11.12.08.


Charge- Not standing as witness in a disciplinary proceeding connected with two union leaders.
Punishments in the single proceeding-
1. Dismissal from service
2. Minor penalty of withholding two noncumulative increments awarded by order of Principal Accountant General. This order was cancelled by Accountant General Sri Dhariwal.
3. Compulsory retirement

Through- Accountant General (A&E) Bihar, Patna


Sir,

The order in the subject is unfair, unjust, illogical,incorrect, misleading, illegal and ridiculous

At the 1st page of his order the AG has reproduced some ofmy points but has miserably failed to assign any cogent and lawful reasons toeven them.

The entire records, I presume, rests with the CAG Office andtherefore I would discuss only the main irregularities in the order that toovery briefly as there are illegalities galore.

(1) In response to my note of argument under heading Lackof jurisdiction ShriDhariwal; the AG, rules at para 4.7 that Shri Imam heldregular charge of DAG(Admn) as on 02.05.08. Thisblatant lie is shocking andstunning. He contradicts himself by using words like "localarrangement" and "Shri Guha's ordering regular charge of DAG(Admn) toSri Imam". It is funny. The power vests with the Hqs.
(2) As regards misconduct as defined in Law in my note ofargument Shri Dhariwal could notestablish as to what office interests were damaged or what was catastrophic.He consciously left this very important point unanswered.

(3) The AG at para 4.6 of fhis order states that ShriP.K.Tiwary was not a (similar) witness. I enclose the letter no.SR.DAG(C) auditSectt-131 dt. 25.11.02 which debunks the untruth.

(4) At para 4.2 of his order the AG has in one stroke of penwiped out all the illegalities as put forth under caption Illegalities inthe Inquiry Report vide the note of argument (NOA).As far asSri L.P. Sriwastav as P.O is concerned, I have verified from whateverinformation available with me and admit that it was an error out of confusionas Sri Sriwastav was P.O in Sri C.D Singh's case and I was made a witness inthat case too. But what about the case-law regarding deposition of the P.O asclaimed by the disc. authority?

(5) The AG did not at all comment on page (3) 1st & 2ndpara of my NOA which contains court-ruling that declares unlawful the testimonyof the P.O (Sri Chinnam) in the inquiry. Moreover the AG himself at para4.2 ofhis order stated that there was "nil witnesses" then howcould the I.O. Sri Raj Kumar declare that his finding was based on "oralanddocumentary evidence both adduced before me"?

(6) The AG has here again chosen to keep mum on Violationof Procedure for holding ex-parte inquiry Rules 63 & 64, P&TManual III Swami CCS(CCA) Rules page 73-74, 2007edition.

(7) By admitting nil witnesses theAG has admitted para- 16& 17 page 3 of my appeal and has further admitted the violation ofRule-14(3)b and Rule-14(23)ii of the CCS(CCA) Rules as indicated at page 3 ofmy NOA. The AG with a vindictive attitude did not consider it.

(8) The AG did not comment on "no written brief by P.O.to charged official" of my NOA.

(9) The AG completely ignored the orders of the Hon'bleSupreme Court and Hon'ble High court as cited in the NOA as well as para-16page 3 of the appeal; and also that of Annexure-1 of the appeal.

(10) The AG here again ignored the Hon'ble Supreme Courtverdict which laid down principles of natural justice in (1999) 2SCC 10 andexplanation of Article 311(2) of the Constitution as detailed at page 4 of myNOA.

(11) In fact the AG did not at all consider any of thecase-laws cited in the NOA much against his own assurance communicated videSr. DAG(A)-86 dt. 24.10.08.

(12) The statement of the AG at para 4.8 in invertedcommas"….ceases to be member of the service" attributed to me is ablatant lie. The legal and factual positions are clearly stated at page 7 ofAnnexure-1 (or at page 13 starting from page 1 of the appeal dt.12.05.08) whichis part of the appeal

(13) The AG has not commented on vital issues raised by meagainst the partisan I.O. acting under the influence of the then AG; under theheading Partial conduct of the I.O of my NOA at page-4 below

(14) Any truthful, conscientious, fair, just, free andimpartial officer must have termed theinquiry report as perverse.. Hasthe AG any answer to the I.O's finding that as the"disciplinaryauthority felt Sri Sinha was guilty", non-action on my representation(enumerating therein problems like personal safety, subsistence allowance etc.)dt. 07.11.02 acknowledged by the I.O., use of word 'murder' five times eventhough my fair acquittal preceded the appointment of the I.O by more than sixmonths, 'oral and documentary evidence' etc.?

(15) The AG, the I.O. or the disciplinary authority neverassured my safety at the inquiry. The irony was that the disciplinary authoritySri Jaipuriar was himself informant of false police cases and Sri R.K. Vermaran personal enmity with me (a fact also underlined byHon'ble High Court )Under extraordinary circumstances operating then I had requested to tenderwritten testimony if allowed so there is no question of"insubordination."

(16) The AG has very conveniently chosen not to commentabout the 23 paras of the appeal (page 5 of the NOA) at all.

(17) The AG has not reasoned very vital issues of theViolation of Rule-14, GOI decision no. (2) 2 and that of Article 311 as citedin the NOA.

(18) I am aghast and appalled at the AG's perceptionand weird explanation of the order dt. 07.03.08 passed by disc. auth. followingmy dismissal being set aside by CAT. He very strangely does not acceptthat the suspension was continuous for 6 years. How could he belie the recordsof his own office?

(19) The AG has completely evaded the issues ofincontrovertible malafides as raised at page 6 of the NOA.

(20) The AG has failed to assign lawful reasons to any of theparas of the appeal.

(21) The AG is unable to cite reasons if the P&T orderno. 16 quoted by him at his para 4.1 applies in case of an employee alreadysuspended (in unconnected case) and that too under circumstances narratedabove.

(22) It appears AG has not gone into the restrictive orderof so called ban-lifting whereby Sri Jaipuriar had ordered me to go only to theinquiry room and back.

(23) Overnight I had become persona non grataduring Accountant general-ship of a controversial person; after my CRs beingadjudged outstanding.

(24) The AG has failed to state clearly whether CAT hasasked him to award punishment.

(25) The underlined observation of the AG '…..not acceptingpayment of subsistence allowance' is wrong. For which month did I refuse thepayment? The AG has also not considered the Hon'ble Supreme Court judgmentpassed in the case of Anwarun Nisha Khatun Vrs. State of Bihar, 2002 SCC(L&S) 961-para-9 as cited in Annexure-1 of the appeal.

(26) The incredulously grotesque finding of Sri I.D.S.Dhariwal that "he deserves the severest punishment" is a strongand indelible indicator that Sri I.D.S. Dhariwal can never discharge his dutyjustly, fairly and objectively as an officer in a quasi judicial function. Italso establishes that he nurses a deep sense of hatred & ill-will againstme.
If he thinks compulsory retirement is a lenient punishmentfor a laughable charge then what about charges of corruption, lack ofintegrity, moral turpitude, anti-national activities etc.?

A person with sadistic-cynic disposition and rejoicing inanother man's distress & suffering can be anything but a human being.

I, therefore, request you to hold an inquiry into theflip-flops, messing-ups, distortion of rules, law-breakings, and, takecorrective measures so that faith in Rule of Law of all especially thoseremaining outside the aura of wealth, influence and power; is reinforced.

Enclosed-Note of Argument

Yours Faithfully
Dr. Vijay Kumar Sinha



Note of Argument

(Appeal dated 12.05.08, under directions vide to Sr. DAG (A)-CC -86dt. 24.10.08)

I have filed the appeal dt.12.05.08 before the AccountantGeneral (A&E), Bihar Patna against the order A02.04.08 as Annexure-4.

Lack of Jurisdiction& Illegality- Recordsof CAG office confirm that Sri Faisal Imam Dy. Accountant General (A/Cs) &VLC held temporary charge (Additional charge) of DAG (Administration)on02.05.08. Thus Sri Imam Illegallyusurped the power of the Disciplinary Authority and violated the GOI orderno. (2) below rule-12 of CCS(CCA)Rules, 1965,GI,MHA O.M No. F.7/14/61-ESts.(A), dated the 24^th January, 1963 reported in Swamy’s –CCS(CCA)Rules, edition 2007 page-33 which clearly mandates Officersperformingcurrent duty of a post cannot exercise statutory powers under the rules.
Therefore on the point of the Error of Jurisdiction theorder dt. 02.05.08 is bound to be set aside at the first sight itself.

Misconduct as definedin Law-Para -12 & 13 at Page-2 & 3 of the appeal dt.12.05.08- ApexCourt Judgement in the case of Union of India and Others Vs. J. Ahmed, AIR 1979 SC 1022 and Hon’ble Division Bench Patna High CourtJudgement in the case of State of Bihar Vs. S.K. Vermareported in PLJR 2008 (2) page 37. “Misconduct” has an essential ingredient”catastrophic consequences”. The wordcatastrophic means by Oxford Dictionary “sudden happening that causes greatsuffering and destruction”. Even to this day the office-administrationhas not been able to come forth or prove either in terms of charges or inquiryas to what interests of the office was damaged.

The Hon’ble D.B has ruled ”disciplinary proceeding can only beinitiated when there is an allegation of misconduct ______” as defined above bythe

Hon’ble Court

.

The Annexure, havingtypes of cases meriting major penalty proceeding bearing no. DG,P&T letter no 6/19/72-Disc. Idt. 29.11.1972 which has been circulated by GOI, page 72-73 below Rule-14 & GID(!)Swamy’sCCA(CCS) Rules 2007 edition; stipulates6 categories and the ridiculous charge involving me is not there.

Thus the initiation of proceeding was an ill-motivated andillegal exercise.

Illegalities in theInquiry Report- Para -15, page-3 of the appeal dt. 12.05.08--- thePresenting officer was Sri Lalan pd. Srivastav who had himself lodged againstme four false 107- CrPC cases right from 2002 and one FIR of beating andsnatching RS.700/ from his pocket later investigated by police and foundfalse. Thus it is an established factthe P.O had enmity with me. In the firstplace it was illegal for the disciplinary authority and the Inquiry Officer(I.O) to allow him to assist the I.O as P.O.

A Division Bench of Hon’ble Patna High Court in the case ofShailendra Kumar Vs. Bihar StatePolution Control Board reported in the October 08 issue of PLJR -2008 (4) Page-212 has laid down “Departmental proceedings ---Person who assisted the enquiry officer inthe enquiry, also deposed himself asprosecution witness ---by obtaining such assistance, the enquiry officer vitiated the enquiryproceeding and everything done subsequent therto stands vitiated--- entireproceeding quashed”
The author of the order dt. 2.5.08 (compulsory retirement ) Sri Faisal Imam has himself stated thatthe oral evidence adduced before the I.O was that of the P.O.

Violation of procedurefor holding ex-parte inquiry-Rules 63&64, P&T manual 111swam’s CCS(CCA) Rules73-74, 2007 edn.

No list of witnessesfurnished –para-16& 17; page 3 of the appeal dr.12/05/08 and rule-14(3)b of CCS(CCA) Rules , Rule-14(23)!!

No written brief by theP.O. to charged official- Rule-14(25) mandates “P.O.’s written brief to besserved on the delinquent in the first instance.” It has been laid down by GI,MHA,(D.P7A.R),O.M.No.11012/18/77-Estt(A) dt.02/09/78. “The principles ofnatural justice demand that the delinquent officer should be served with a copythe written brief filed by the P.O. before he is called upon to file hiswritten brief.”

The fact is that I did not get any such brief of the P.O. noram I aware of such brief submitted to the authority.
No witness examined-In this ex-parte inquiry no witness was ever examined. Violation ofrule-14(3)b para -16 page 3 of the apppel. Case laws PLJR 2000(3) page10,Upendra Singh Vs. BSCLB AND 2002 SCC (L&S) Sher Bahadur Vs. Union of India,detailed in Annexture-1; page 6.
Hon’ble Supreme Court while defining reasonable opportunityunder Article 311(2) in the case of Kuldeep Singh Vs. Commissioner of Policeand others(1999) 2 SSC 10 ruled“reasonableopportunity contemplated by Art.311(2) means hearing in accordance with principals of natural justice –furtherheld, ascribing the non-production of witnesses, which was fault of thedepartment, to the delinquent showed that the enquiry officer was biased infavour of the department and found the delinquent guilty in so arbitrary mannerwhich showed that he was carrying out the command of some superior officer.”

The

Hon’ble Court

futher ruled “findings of misconduct arebased on no legal evidence and the conclusion is one to which no reasonable mancould come, the findings can be rejected as perverse.”

The Hon’ble Court concluded at para-42 of its order “The enquiry officer did not sit with an openmind to hold an impartial domestic enquiry which is an essential component ofthe principles of natural justice as also that of “reasonable opportunity” ,contemplated by Art. 311(2) .The bias in favour of the department had so badlyaffected the enquiry officer’s whole faculty of reasoning – he has acted soarbitrarily and has found the appellant guilty in such a coarse manner that itbecomes apparent that he was merely carrying out command from superior authority who perhaps directed “fix him up”–dismissal quashed –respondents directed to reinstate the appellant withal consequentialbenefits including all arrears of pay which shall be paid within three monthsfrom today”

Partial conduct of theI.O- stands proved by hisfalsehood at para 1.1,3^rd line, para 4.4,para 4.2 “excuse”, otherthings, “in view of the above facts Disciplinary authority felt Sri Sinha wasguilty”,para 6.1 use of “murder”, five times, narration of long IPC sections when my fair acquittal preceded the I.O;appointment itself by over 6 months.

Partial conduct ofDisciplinary authority- Informant of a police case against me, then authorof my dismissal order.

Violation of Article311(2) & Rule-14 ;GOI decision no. (29)-case-law AIR 1973 SC 1183, page 69 of Swami’s CCS(CCA) Rules 2007edition with reference to non consideration of my representation dt. 7.11.02 bythe I.O para (21)&(22) of this appeal.

Non-consideration ofpara (22) to (45) of Annexure-1- The authority below did not consider thepara (22) to (45) at all which hasresulted in prejudice and miscarriage of justice to me.

Malafides

Violation of Rule-14;GOI decision No. (2) 2 and denial of reasonable opportunity guaranteed by Art.311

It has been laid down by the above law “if, as a result of the inquiry, it is decided that the officer should bedismissed, removed or reduced in rank, he has to be given a further opportunity toshow cause, if any against the actualpunishment proposed Anything less then this would amount to denial of thereasonable opportunity which is guaranteed by Article- 311.

No such opportunity was granted to me either when I wasdismissed or again when compulsorily retired.

Violation of Rule-10sub rule (7), G.I Dept. of per.&Trg., O.M No. 11012/4/2007- Estt.(A), dated12^th July, 2007.

I was kept underprolonged, repeated and continuedsuspension for six years-Annexure-3&4 to this appeal

Non- Payment ofsubsistence allowance during suspension-para 26 (a) of the appeal underconsideration
Use of abusive & defamatory language by authorities- 2^ndpara of page 4 of the Annexure-1 to this appeal.

Slanderous & scandalous briefing of the press by the corruptofficers against their own employee (me)- Order No. 14/2-6/03-04-PCI,dt. 9.2.06 of the Press Council of Indiain my favour

Deliberate attempt toprevent from performing duty-suspended many times (Annexure-3,4&2) ofthe appeal. On setting aside of mydismissal by Court I submitted my joining on 11.2.08- not accepted ; when I requested for duty vide myrepresentation dt. 10.7.08 again not accepted.

The Annexure-4, thatis; my appeal dt. 2.4.08 is kept under suspended animation sothat when one ridiculous proceeding is set aside and her one is revived. Rule-9 of the CCS(pension) Rules, 1972 has been violated.

Role of AppellateAuthority-GOI order no (1), Rule15, AIR 1970 SC 1302-Hon’ble SupremeCourt has observed that recording of reasons insupport of a decision by a quasi-judicial authority is obligatory as it ensuresthat the decision is reached according to law and is not a result ofcaprice, whim or fancy or reached onground of policy or expediency.Thenecessity to record reasons is greater if the order is subject to appeal.

A Division bench of the Hon’ble Patna HighCourt in case of KOmal Tiwary Vs. State of Bihar 2008 (2) BBCJ page v-471 hasruled “An appeal is a forum of facts andtherefore, appellate authority is duty bound to examine all issues of facts andlaw- he cannot move on the crutchesof the inquiry report or the order ofdisciplinary authority.”


Therefore I appeal to you to kindly allow theappeal.

(Dr. Vijay Kumar Sinha)