Central Administrative Tribunal - Delhi
Dinesh Kumar Patnaik vs Union Of India (Uoi) And Ors. on 16 May, 2007
Equivalent citations: 2008(1)SLJ134(CAT)
ORDER
V.K. Bali, J. (Chairman)
1. Applicant is an officer of Indian Foreign Service of 1990 batch. While posted in China, he was recalled to the Ministry of External Affairs Headquarters on 26.12.2002 and was served with a Memorandum calling upon him to give his explanation. His candid admission to the basic allegations, resulted into issuance of the memorandum dated 22.1.2003 for initiating minor penalty proceedings. He reiterated admission of his guilt in reply dated 31.1.2003. He did not hear anything further and a period of more than a year and half rolled on; but when he was due for promotion to the post of Director, he received two memos in quick succession: one dated 2109.2004, withdrawing minor penalty proceedings and the other dated 22.9.2004 for initiating major penalty proceedings on the advice of Union Public Service Commission (hereinafter referred to as UPSC) and dispensing with inquiry invoking Rule 19(ii) of the CCS (CCA) Rules of 1965 (hereinafter referred to as 'Rules of 1965'). He contested this memo of penalty on various grounds vide his reply dated 12.10.2004. He did not hear anything further in the matter and, in the meanwhile, officers junior to him were promoted.
2. It is in the wake of circumstances mentioned above, that the present application was filed on 11th September, 2006 calling in question the memorandum dated 22.9.2004 (Annexure A-1).
3. Significant questions that have been raised in the present application pertain to competence of the UPSC to dictate to the competent Disciplinary Authority as regards to the quantum of punishment to be imposed on a Charged Officer or as to choice of initiating the disciplinary inquiry under Rule 14 or 16 of the Rules of 1965, particularly when Disciplinary Authority had already applied his mind to the facts of the case and decided to initiate disciplinary proceedings only under minor penalty, as also as to whether the UPSC was justified in converting a case of pre-penalty second stage consultation to that of a pre-proceeding first stage consultation, as also as to whether in the facts and circumstances of the case, major penalty proceedings under Rule 14 of the Rules of 1965 could be initiated against the applicant by recalling the memorandum initiating minor penalty proceedings under Rule 16 of the Rules of 1965, after obtaining the admission and explanation of the applicant and without there being any new material/fact coming to the knowledge of the Disciplinary Authority. The applicant has also raised the question as to whether the delay caused in concluding the departmental inquiry against him in the facts and circumstances of the present case would vitiate the entire disciplinary proceedings.
4. Before we may, however, evaluate, comment and adjudicate upon the points raised in challenging and seeking to set aside the memorandum dated 22.9.2004, impugned in the present application, it would be appropriate to make mention of facts in entirety.
5. The applicant is an officer of Indian Foreign Service of 1990 batch. It is his case that during his service career he held many important assignments including postings in the Permanent Mission of India to the United Nation in Geneva, and various other diplomatic assignments in Bangladesh and China. He also officiated on the post of Officer on Special Duty in the Ministry of External Affairs from the year 1998 to 2000. He has done MBA from IMM, Calcutta and is stated to be currently pursuing Masters Degree in International Studies from the Diplomatic Academy of Vienna, Austria and for that purpose he has gone on study leave. During his posting to China, he was recalled to the Ministry of External Affairs, Headquarters on 26.12.2002, when he was served with a memorandum calling upon him to give explanation in regard to certain allegations which were levelled against him. The memorandum dated 26.12.2002 (Annexure A-II) insofar seeking explanation reads as follows:
1. It has been brought to the notice of the Ministry that Mr. Dinesh Patnaik IFS (1990), the then First Secretary in Embassy of India, Beijing, entered into an improper relationship with Ms. Yin Ou, a local employee in the Embassy.
2. Mr. S. Menon, Ambassador of India in China, spoke to Mr. Patnaik in July 2002 about his improper relationship with the local employee and advised him to discontinue the relationship. It was also made clear to Mr. Patnaik that the relationship had security implications especially in a sensitive Mission like Beijing. Mr. Patnaik was again warned by the Ambassador in September 2002 to desist from the improper relationship or else action would be taken against him. Mr. Patnaik, however, continued the relationship even thereafter with Ms. Yin Ou, despite repeatedly promising the Ambassador that he would discontinue the relationship. It has been further brought to the notice of the Ministry that Mr. Patnaik took Ms. Yin Ou along with him on local tours to Urumqi (2-4 September, 2002) and to Qingdao (28-29 October, 2002).
The applicant responded to the memorandum, Annexure A-II vide reply dated 30.12.2002, which reads thus:
It is a matter of great shame and regret to me that I let such an event to happen. After Ambassador's verbal discussion with me, I stopped meeting Ms. Yin Ou. I explained to her that there was never anything between us and she should not meet me. She however instated on trying to talk to me To prevent any untoward incident and to protect my family, I talked to her on a few occasions. The instances of local tour that has been mentioned are true but I did not take her with me. She came to these places on her own on the pretext that she wanted to talk with me. She alleged that as I did not have time to meet her in Beijing, the only place she could meet me was outside Beijing. In fact, from Urumqi, I returned back earlier than my approved period of duty because of this.
There is no excuse that I can give in this case. It was a case of poor judgment by me. Instead of putting an immediate end to the episode, I tried to talk things out. I am, today, facing the consequences of my delayed action. I have been recalled. My future is highly uncertain. The newspaper report has put me in a terrible situation with all my friends and relatives. My family life is in a very bad state. My wife is on the verge of leaving me. The persons I was trying to protect, i.e. my immediate family, have been deeply affected and hurt by this whole sequence of events. I sincerely regret the whole episode. If I could turn the clock back, I would try and change things. The only thing I can say is that I promise such an event would never take place again. I do not claim to be a very good officer but I shall give my best to this service. I request that I be given one last chance to redeem the mess I have created by my foolishness.
6. It appears that after considering the reply of the applicant, reproduced above, the Disciplinary Authority vide memorandum dated 22.1.2003 (Annexure A-3) proposed to take action against him under Rule 16 of the Rules of 1965, which was for a minor penalty. The said memorandum reads thus:
1. Mr. Dinesh Patnaik, Deputy Secretary (Africa), (IFS: 1990), is hereby informed that it is proposed to take action against him under Rule 16 of the CCS (CCA) Rules, 1965. A statement of the imputations of misconduct or misbehaviour on which action is proposed to be taken as mentioned above is enclosed.
2. Mr. Patnaik is hereby given an opportunity to make such representation as he may wish to make against the proposal.
3. If Mr. Patnaik fails to submit his representation within 10 days of the receipt of this Memorandum, it will be presumed that he has no representation to make and orders will be liable to be passed against Mr. Patnaik ex parte.
7. The applicant submitted his reply dated 31.1.2003 to the aforesaid memorandum wherein he stated that he had nothing more to say in addition to what had already been submitted before the Disciplinary Authority. He admitted the alleged lapse on his part and regretted for his actions or inactions thus leaving it open to the Disciplinary Authority to impose any punishment under Rule 16 of the Rules of 1965. It is the case of the applicant that in the aftermath of having preferred his reply dated 31.1.2003, he did not hear anything in this regard and nothing was communicated to him thereafter. He was due for promotion to the post of Director to the Government of India when suddenly vide memorandum dated 21.9.2004 he was informed that the chargesheet initiating minor penalty proceedings is withdrawn and the very next day, i.e. 22.9.2004, he was served with a memorandum initiating major penalty proceedings against him on the same set of facts and allegations as stated in the memorandum dated 22.1.2003. It is the case of the applicant that it is an admitted position that the major penalty proceedings had been initiated on the advice of the UPSC. In the memorandum aforesaid, it has been further stated that holding of inquiry is dispensed with by invoking Rule 19(ii) of the Rules of 1965 as the same was not feasible. In the aforesaid order, the penalty proposed is of reduction by three lower stages in the time scale of pay for a period of three years w.e.f. date of issue of order, which shall not have the effect of postponing the future increments of his pay. The applicant again submitted his reply on 12.10.2004 wherein he made a grievance that the action of the Disciplinary Authority is without competence and the impugned action is not an independent decision of the Disciplinary Authority but is on the advice of the UPSC, which is without jurisdiction. He also submitted that the UPSC is only an Advisory Body and the issuance of charge memo is the discretion of the Disciplinary Authority. He also mentioned that at the stage of issuance of charge memo, the Disciplinary Authority is not required to consult the UPSC and once a minor penalty was proposed by a Disciplinary Authority, it was beyond the jurisdiction of the UPSC to advise the Disciplinary Authority to initiate major penalty proceedings and further that the advise of the UPSC has,to be confined within the four corners of Rule 16 of the Rules of 1965.
8. It is on the facts as detailed above, the applicant has questioned the impugned memorandum dated 22.9.2004 (Annexure A-1) and further seeks a direction to the respondents to release all consequential benefits which have been withheld on account of pendency of major penalty proceedings on the grounds as have already been mentioned in the earlier part of this judgment.
9. Pursuant to notice issued by this Tribunal, respondents have entered appearance and contested the cause of applicant. Two counter replies, one by respondents 1 and 2 and the other by respondent No. 3, have been filed.
10. Respondents No. 1 and 2 in their counter reply have raised preliminary objections. It has, inter alia, been pleaded that the applicant has challenged memorandum dated 22.9.2004 and the Tribunal ought not to interfere with the disciplinary proceedings at interlocutory stage. The applicant did not make any representation against the memorandum dated 22.9.2004 and, therefore, O.A. is hit by Section 20 of the Administrative Tribunals Act, 1985 and is liable to be dismissed on that ground and further that the O.A. filed on 11.9.2006 against the memorandum dated 22.9.2004 is barred by limitation. While replying to the case of the applicant, as set up in the original application, it is pleaded that the case of the applicant was sent to UPSC as mandated by the Constitution read with Union Public Service Commission (Exemption from Consultation) Regulations, 1958 (Regulations of 1958, for short) and Rule 15 of the Rules of 1965, for the advice on the quantum of penalty that was proposed to be imposed on the Charged Officer. It was for the Disciplinary Authority to decide on the actual penalty to be awarded, after considering the advice of the UPSC. However, when there is a disagreement between the Disciplinary Authority and the UPSC, the matter has to be put up to the Prime Minister through Department of Personnel and Training (hereinafter referred to as DOPT) in terms of entry 39 (ii) of the Third Schedule to the Government oflndia (Transaction of Business) Rules, 1961 (Rules of 1961, for short). In this case, the DOPT informed the Disciplinary Authority that the Prime Minister had "directed that the advice of the Union Public Service Commission may be accepted". Since the advice of the UPSC was for major penalty, the Disciplinary Authority was left with no other option but to change the procedure from Rule 16 to Rule 14 of the Rules of 1965 in accordance with the directive of the Prime Minister. When the Disciplinary Authority sent its tentative penalty, under Rule 14 of the Rules of 1965, to the UPSC, the case was returned on the grounds that the representation on file from Charged Officer was only an interim one and that they could give advice only after the Disciplinary Authority had received and considered the final representation of the Charged Officer. The Charged Officer challenged the conversion of the proceedings from minor penalty to major penalty. The Disciplinary Authority consulted DOPT and Ministry of Law, who are competent to advice on such issues. The Ministry of Law informed that the Commission's function is purely advisory on the quantum of penalty. The DOPT examined the case in the light of the above advice of Ministry of Law and reiterated that they had nothing to add to the directive of Prime Minister already conveyed to them. The departmental procedure to be followed is left to the Disciplinary Authority to decide. Since the Disciplinary Authority had not conveyed its final decision on the minor penalty proceedings, there was no bar to change the proceedings. The Charged Officer was informed that while procedure under Rule 16 of the Rules of 1965 was being dropped, the same memorandum informed him that it was without prejudice to further action to be taken by the Disciplinary Authority. It is pleaded that the delay on account of examination of the legal complexities of the case shall have no effect of vitiating the disciplinary proceedings. The delay is only due to the fact that the Charged Officer has challenged the legality of the process, which had taken some time to conclude. The Disciplinary Authority has no desire to extend the proceedings but, at the same time, it had to follow the rules and procedures so as not to cause undue harm to the Charged Officer. It is admitted in the pleadings that inasmuch as the advice of the UPSC was for imposition of major penalty, the Disciplinary Authority had no other option but to change the procedure from Rule 16 to Rule 14 of the Rules of 1965 in accordance with the directive of the Prime Minister and, therefore, the memorandum dated 22.9.2004, informing the applicant about the change in penalty, was served. The applicant was also informed, through the aforesaid memorandum, that the Disciplinary Authority had decided to waive the requirement for holding of an inquiry under Rule 19(ii) of the Rules of 1965, and the same was issued by the Disciplinary Authority after having withdrawn the earlier inquiry process with a clause that it was being done without prejudice to further action that may be taken by the Disciplinary Authority.
11. In the counter affidavit filed on behalf of respondent No. 3, it has, inter alia, been pleaded that the Ministry of External Affairs vide its letter dated 20/21.2.2003 referred the disciplinary case of the applicant for advice of the Commission as per the requirement of consultation as laid down in Article 320(3)(c) of the Constitution of India read with Regulation 5(1) of the Regulations of 1958, and that when the case was referred to the Commission, it was observed by the Commission that the charges against the Charged Officer are so grave that they prima facie warrant major penalty proceedings against him. Accordingly, the advice of the Commission was conveyed to the Disciplinary Authority vide letter dated 9.5.2003. The Ministry of External Affairs vide its letter dated 4.6.2003 requested the UPSC to reconsider the advice communicated vide letter dated 9.5.2003. On consideration, UPSC reiterated its earlier advice vide letter dated 21.8.2003. On consideration of the advice tendered by the UPSC vide letters dated 9.5.2003 and 21.8.2003 and direction of the Prime Minister, as conveyed by the DOPT, the Disciplinary Authority decided to impose the major penalty, as mentioned above, under Rule 14 of the Rules of 1965. Insofar as the reply of the applicant to the memorandum conveying imposition of major penalty, it is the case of respondent No. 3 that on examination it was observed that the reply of the Charged Officer was an interim reply wherein he had without admitting or denying the charges raised certain issues relating to legality of issuing major penalty charge memo. The Ministry was requested vide Commission's letter dated 19.1.2005 to obtain/wait for final representation of the Charged Officer to allow him an opportunity to defend and then refer the case to the Commission. It is then pleaded that the Commission is only an advisory body and their advice had been sought in the case in accordance with the requirement of consultation with them as laid down in Article 320(3)(c) of the Constitution read with Regulation 5(1) of the Regulations of 1958 ibid. The Disciplinary Authority, considering the whole case including the advice of the Commission, has taken the final decision, and the Disciplinary Authority may or may not agree with the advice of the Commission.
12. The applicant has filed rejoinder to both the counter replies as mentioned above. In the rejoinder filed to the reply filed on behalf of respondents No. 1 and 2, it is pleaded that the applicant was issued a memorandum dated 22.1.2003 whereby minorpenalty proceedings were proposed. At that point of time, the Disciplinary Authority, in the case of the applicant, is the President of India and the decision to initiate the minor penalty proceedings was taken by an order and in the name of the President of India, after due application of mind and after the reply of the applicant has been considered in response to the show cause notice. The applicant submitted his reply, in all fairness, wherein he reiterated his earlier stand and admitted that it was a case of poor judgment on his part and that the said untoward incident was regrettable and he regretted for the same in all earnestness. Even though the applicant had admitted to the extent that it was a case of poor judgment and regretted for the same, it was not intended to be a categorical admission of any charge levelled against rum. After the reply to the charge memo under Rule 16 of the Rules of 1965, the case of the applicant was referred to the UPSC by the Disciplinary Authority seeking advice as regards the imposition of punishment within the ambit of Rule 16. At that stage, the consultation of the UPSC was intended to protect the interest of the Government servant, which would be evident from the provisions of Rule 15 of the Rules of 1965. However, on the contrary in the present case, the UPSC appears to have given an advice to the Ministry that instead of minor penalty proceedings, major penalty proceedings should be held against the applicant. After serving the memorandum dated 21.9.2004 recalling the earlier charge memo under Rule 16 of the Rules of 1965, another charge memo under Rule 14 of the Rules of 1965 was issued on 22.9.2004 wherein the requirement of even holding of inquiry was dispensed with. Two and half years, thereafter, had gone by but the respondents communicated no decision to the applicant. As regards the preliminary objections raised by respondents No. 1 and 2, it is pleaded in the rejoinder that there is no justification for the respondents to continue the disciplinary proceedings pending against the applicant for a period of more than four and half years, thus jeopardizing the career prospects of the applicant inasmuch as in the meanwhile four batches junior to him have been promoted to the post of Director. The applicant has been denied promotion for such a long period on account of pendency of the disciplinary proceedings that even if the order with regard to giving maximum punishment as suggested would have been passed, the applicant was not to suffer more than what he has already suffered. Fresh charge memo, it is pleaded, was issued without any new material/fact coming to the knowledge of the Disciplinary Authority when the minor penalty proceedings were initiated against him. In the circumstances, it would not be the type of case where this Tribunal may be interfering at a threshold of the disciplinary proceedings. The plea raised in the written statement that the applicant did not make any representation to the authorities against the impugned memorandum dated 22.9.2004, has been vehemently denied. It is pleaded that the applicant indeed submitted the representation on 12.10.2004 (Annexure A-VI) and after the said representation nothing was heard in the matter. No question of limitation would arise inasmuch as the respondents did not proceed further in the matter at all or even responded to the reply dated 12.10.2004. While replying 1 on merits of the controversy, it is pleaded that the Disciplinary Authority considered all the material before it and initiated minor penalty proceedings, and when the applicant tendered his apology and regretted the incident, the same is being made a ground for imposition of major penalty. The Commission has thus travelled beyond its scope of consultation. The applicant has reiterated his pleas made in the original application and controverted or denied the ones made in the counter reply filed on behalf of respondents No. 1 and 2.
13. In the rejoinder to the counter affidavit filed by respondent No. 3, it is pleaded that the UPSC exceeded the scope of consultation and travelled beyond its competence by recommending initiation of major penalty proceedings especially when the Competent Authority, after obtaining the version of the applicant, issued a memorandum dated 21.9.2004 under Rule 16 of the 1965 Rules. It is the case of the applicant that the initiation of proceedings, whether it is under Rule 14 or 16 of the Rules of 1965 is within the exclusive domain of the Competent Authority, and once the Disciplinary Authority had decided to initiate minor penalty proceedings, the consultation of the UPSC was confined to within the scope of Rule 16 of the Rules of 1965. There is no provision of consultation with the UPSC at the stage of initiation of the disciplinary proceedings and this would rule out, the scope of interference of the Commission in deciding whether a major or minor penalty proceeding has to be initiated against the Charged Officer. This matter is in independent domain of the Disciplinary Authority. The advice of the Commission, it is stated, is not only in the nature of a directive but also, in fact a direction to the Disciplinary Authority to initiate major penalty proceedings de novo, which was not within the ambit and scope of the advice sought by the Disciplinary Authority. The decision has been imposed on the Disciplinary Authority by the UPSC.
14. We have heard Mr. Devesh Singh, Counsel representing the applicant and Mr. A.K. Bhardwaj, Counsel representing respondents No. 1 and 2 and Mr. H.N. Singh, Counsel representing respondent No. 3 and with their assistance, examined the records of the case.
15. Before we may come to the core issues, it would be appropriate to first deal with the preliminary objections raised by the respondents. It is the plea of the respondents that inasmuch as the challenge, in the present application, is to memorandum dated 22.9.2004 which only contains charges against the applicant, this Tribunal would not be justified to interfere at this interlocutory stage as it is not open to this Tribunal to go into the correctness or otherwise of the charges. For the contention raised above, Counsel relies upon ajudgment of the Hon'ble Supreme Court in Union of India and Ors. v. Upendra Singh followed by this Tribunal in Shri Korada Srinivasa Rao v. Union of India in O.A. No. 2033/2005, decided on 3.3.2006. It is also the case of the respondents that the applicant did not make any representation against the memorandum dated 22.9.2004 and, therefore, the original application is hit by Section 20 of the Administrative Tribunals Act, 1985 as also the same is barred by limitation having been filed on 11.9.2006 challenging the memorandum dated 22.9.2004. There does not appear to be any merit in the preliminary objections even though specifically and boldly taken in the counter reply filed by respondents No. 1 and 2 but half-heartedly argued during the course of arguments.
16. The present is not a case of simple challenge to memorandum initiating major or minor penalty proceedings on the allegations contained in the Articles of Charges. The real and the only challenge is of con verting minor punishment proceedings into major punishment proceedings on the same set of facts and on advice of the UPSC which it is the case of the applicant, that it could not be binding upon the Disciplinary Authority. It is also the case of the applicant that the UPSC could not have given advice as to the nature of the proceedings and further that the facts and circumstances of the case did not warrant such an advice. It may be recalled that the basic charge against the applicant was that he entered into an improper relationship with Ms. Yin Ou, beyond the professional duties of the applicant. The applicant came up with a confession in so far as the charge in regard to relationship inter se applicant and Ms. Yin Ou is concerned, the applicant is not even remotely suggesting that there is no truth in the charges levelled against him and the Tribunal should set aside the memo of charges by returning a finding that the same are incorrect.
17. The judicial precedents relied upon by the learned Counsel representing the respondents are wholly inapplicable to facts of the present case. In the Union of India and Ors. v. Upendra Singh (supra), it was held that in the case of charges framed in a disciplinary inquiry, the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At that initial stage, the Tribunal would have no jurisdiction to go into the correctness or truth of the charges as the Tribunal cannot take over the functions of the Disciplinary Authority. The truth or otherwise of the charges is a matter for the Disciplinary Authority to go into. While following the decision of the Hon'ble Supreme Court in Upendra Singh's case (supra), the Tribunal in Shri Korada Srinivasa Rao (supra) held that when charge framed in the enquiry is challenged before the Court/Tribunal, it could be interfered only if on the charge framed (read with imputation or particulars of the charge, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law.
18. It is not understandable as to how the two judicial precedents referred to above would support the contentions raised by the learned Counsel representing the respondents. In our view, these decisions can rather be cited against the respondents. We may reiterate that the applicant is not even challenging the veracity or otherwise of the charges levelled against him. His plea is that the procedure adopted, while converting minor penalty proceedings into the major penalty proceedings, is wholly illegal and unauthorized. We have no hesitation whatsoever in repelling the contention of the Counsel representing the respondents that this Tribunal need not interfere in the jurisdiction vested in it which is akin to the jurisdiction and power of the High Court under Article 226 of the Constitution of India to interfere at this stage. In so far as the pleas raised by the respondents based on Section 20 of the Administrative Tribunals Act, 1985 which states that Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules or based upon Section 21 of the Administrative Tribunals Act, 1985 that the original application is bared by limitation, are concerned, the same are equally devoid of any merit. While pressing the first plea, it is pleaded that the applicant did not make any representation to the memorandum dated 22.9.2004 and, therefore, the original application is hit by Section 20 of the Administrative Tribunals Act, 1985. The plea raised is factually incorrect as it has remained undisputed that the applicant indeed made a representation or filed objections against the memorandum dated 22.9.2004. It is against this memorandum that he raised serious objections based on law, and it is the case of the respondents, while denying charge of causing delay that since the applicant had raised issue of legality of procedure it had taken time to conclude the same. The objections raised by the applicant are on record at Annexure AVI dated 12.10.2004. These objections were raised in close vicinity, when memorandum dated 22.9.2004 was issued. It is thus not at all a case where the applicant may not have exhausted his remedies. In fact, the respondents did not respond to the objections filed by the applicant even by the time the applicant filed the present O.A. in this Tribunal. It is also strange to observe that the applicant is being blamed for not exhausting the remedies whereas the fact is that the respondents themselves constrained the applicant to file the present application, when no further steps were taken, after the applicant had objected to memorandum dated 22.9.2004 vide Annexure A-6 and in the meanwhile the career of the applicant was damaged beyond repairs inasmuch as officers of four batches junior to him were promoted to the next higher rank of Director. The plea of limitation invoked in view of the provisions contained in Section 21 of the Act of 1985 needs summary rejection inasmuch as no order till such time the applicant came to this Tribunal was passed by the respondents. The applicant had made representation (Annexure A-6) as permissible under Section 20(2)(a) of the Act of 1985. In view of the provisions contained in Section 21(1)(a) of the Act of 1985, limitation was to reckon from the date when final order had been passed on the representation of the applicant. The contentions raised by the learned Counsel representing the respondents based upon Sections 20 and 21 of the Act of 1985 are repelled.
19. The controversy veers thick on the legal questions raised by the applicant as enumerated above. Before, however, we may deal with the contentions raised by the learned Counsel for the parties, on such legal issues, it would be essential to state as to when and how minor penalty proceedings were converted into major penalty proceedings. It may be recalled that the applicant had been recalled from his posting at China in Indian Embassy and memorandum was issued to him on 16.12.2002. The applicant submitted his reply to the aforesaid memorandum on 30.12.2002. On 22.1.2003, the memorandum under Rule 16 of the Rules of 1965 was issued for imposing minor penalty. The applicant, submitted his reply on 31.1.2003 reiterating the stand taken earlier. A period of more than a year and half elapsed as it is only on 21.9.2004 when minor penalty proceedings were withdrawn and on heels of this order, the applicant was issued another memorandum dated 22.9.2004 for initiating major penalty proceedings. What happened in between 31.1.2003 and 22.9.2004 and how and in what manner the Disciplinary Authority ultimately issued memorandum for major penalty would need a necessary mention.
20. The Ministry of External Affairs vide its letter dated 20/21.2.2003 referred the disciplinary case of the applicant for advice of the Commission. The Commission observed that the charges against the applicant were so grave which would prima facie warrant major penalty proceedings against him. The advice of the Commission was conveyed to the Disciplinary Authority vide letter dated 9.5.2003. The Ministry of External Affairs would, however, not agree with the advice of the Commission and, therefore, vide its letter dated 4.6.2003 it made a request to the Commission to reconsider the advice communicated vide letter dated 9.5.2003. On consideration, the Commission reiterated its advice vide its letter dated 21.8.2003. It is admitted position that there is a difference of opinion between the Disciplinary Authority and the Commission. It is in the wake of this difference of opinion that concededly the matter was referred for the opinion of the Prime Minister as per the requirement of consultation as laid down in Article 320(3)(c) of the Constitution of India read with Regulation 5(1) of the UPSC (Exemption from Consultation) Regulations, 1958 and entry 39(ii) of the Rules of 1961. It is only when the Prime Minister advised DOPT to follow the advice of the UPSC, the Disciplinary Authority decided to impose the major penalty.
21. Whether the advice of the UPSC was to be confined only to the quantum of punishment or that it could go beyond that as regards conversion of major proceedings from minor penalty proceedings, is the question. As to whether, in the facts and circumstances of the case, the advice tendered by UPSC is justified, would be yet another question that would need adjudication by this Tribunal.
22. The first question posed above, needs primarily to be answered in view of the Rules of 1965. Part-V of the Rules aforesaid deals with penalties and Disciplinary Authorities, and Part-VI deals with procedure for imposing penalties. Insofar as the controversy involved in the present case is concerned, Part-V and Part-VI of the Rules aforesaid (from Rule 11 to Rules 16) are relevant for adjudication of the matter.
23. Rule 11 empowers Government to impose minor or major penalties. Minor penalties include censure, withholding of promotion, recovery from pay of the whole or part of any pecuniary loss caused by him/her to the Government by negligence or breach of orders, reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension, and withholding of increments of pay. These penalties have been enumerated in Rule 11(i) to (iv). Major penalties include reduction to a lower stage in the time-scale of pay for a specified period, reduction to lower time-scale of pay, grade or post, compulsory retirement, removal from service which shall not be a disqualification for future employment, and dismissal from service, as enumerated in Rule 11(v) to (ix).
24. Rule 12 deals with Disciplinary Authorities. A member of a Central Civil Service other than the General Central Service may be imposed penalties as enumerated in Rule 11 by the Appointing Authority or the authority specified in the schedule in this behali" or by any other authority empowered in this behalf by a general or special order of the President. There will be no need to make further mention of Rule 12 as the same, as mentioned above, deals with Disciplinary Authorities with regard to the officers in the different services enumerated therein.
25. Rule 13 deals with authority to institute proceedings. The President or any other authority empowered by him by general or special order may institute disciplinary proceedings against a Government servant.
26. Rule 14 gives an exhaustive procedure for holding the proceedings pertaining to major penalties. There cannot be imposition of any penalty specified in Clauses (v) to (ix) of Rule 11 without holding an inquiry. Procedure for holding inquiry, as mentioned above, has then been given in detail, starting from appointment of Inquiry Officer and drawing up of substance of imputations of misconduct, etc. The preparation of report by the Inquiry Officer shall contain (a) the articles of charge and the statement of the imputation of misconduct or mis behaviour, (b) the defence of the Government servant in respect of each article of charge, (c) an assessment of the evidence in respect of each article of charge, and (d) the findings on each article of charge and reasons therefor. Various steps to be taken after conclusion of the inquiry and the preparation of report have been enumerated from Rule 14(1) to (23).
27. Action to be taken on the inquiry report and the manner in which it has to be taken then has been dealt with in Rule 15 of the Rules of 1965. The same reads thus:
15. Action on the inquiry report (1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
[(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(2-A) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in Sub-rules (3) and (4)].
(3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.
From perusal of Rule 15, reproduced above, it is manifest that if the Disciplinary Authority or the Inquiring Authority may remit the case to the Inquiring Authuity for further inquiry and report, in that case, the Inquiring Authority has to proceed to hold further inquiry once again according to the procedure of Rule 14, as mentioned above. If the Disciplinary Authority then forwards or causes to be forwarded a copy of the report to the Inquiring Authority with tentative reasons for its disagreement, if any, to the findings of the Inquiring Authority on any Article of Charge to a Government servant who is required to submit, if he so desires, a representation, it is then that the Disciplinary Authority considers the representation submitted by Government servant and record its own findings before proceedings further in the matter as specified in Sub-rules (3) and (4). If the Disciplinary Authority is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11, which pertain to minor penalties, should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty, provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. If the penalties to be imposed may be the ones under Clauses (v) to (ix) of Rule 11, the Disciplinary Authority may make an order imposing such penalty provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded to it by the Disciplinary Authority for its advice and such advice shall be taken into consideration before making order of imposing any such penalty on the Government servant.
28. Rule 16 prescribes the procedure for imposing minor penalties. No order imposing any of the penalties specified in Clause (i) to (iv) of Rule 11 shall be made except after taking steps as enumerated in Clauses (a) to (e) of Rule 16(1). Clauses (a) to (e) of Rule 16(1) are reproduced below:
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in Sub-rules (3) to (23) of Rule 14, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or misbehaviour; and
(e) consulting the Commission where such consultation is necessary.
29. Various steps enumerated in the Rules would clearly suggest that in case the Disciplinary Authority is of the opinion that the inquiry is necessary, the procedure prescribed in Sub-rules (3) to (23) of Rule 14 of the Rules of 1965 have to be taken. After taking the representation, if any, that may be submitted by the Government servant and the record of the inquiry, if any, held, as mentioned above, and after taking all these matters into consideration a finding is then to be recorded on each imputation of misconduct or misbehaviour. Consultation with the UPSC is then the last step in the procedure prescribed in Rule 16 of the Rules of 1965. Sub-rule (2) of Rule 16 would again manifest that the record of the proceedings, as taken as per Sub-rule (1) of Rule 16, would consist of the advice of the Commission as well which should be after the Government employee has filed representation and the evidence has been recorded, during the proceedings. After seeking the advice of the Commission, a finding is to be recorded on each imputation of misconduct or misbehaviour and it is then that the order for punishment is to be passed recording the reasons thereof.
30. It is manifest that before passing an order of punishment, be it minor or major, the advice of the Commission has to be sought for. It may be recalled that in the present case when the applicant had responded to the memorandum dated 26.12.2002 by his reply dated 30.12.2002, the Disciplinary Authority had proposed to take action against him under Rule 16 for a minor penalty, and when the applicant submitted his reply dated 31.1.2003 to the proposed action to be taken against him, the matter was sent to the UPSC for its opinion. No decision at that stage had been taken to dispense with the enquiry. It was not a case of admission of the entire misconduct alleged against the applicant. There was no admission that the relationship between the applicant and Ms. Yin Ou would have security implications and insofar as the allegation against the applicant that he persisted with the relationship despite having been warned by the Ambassador and further that he had taken Ms. Yin Ou on tours is concerned, the same was denied. Be that as it may, as mentioned above, no decision to dispense with the enquiry had been taken, which would clearly suggest that the procedure for imposing penalty was yet to be gone into. No opinion as envisaged under Rule 16(1)(b) had been formed that no enquiry was necessary. There was no occasion at that stage to seek opinion of the UPSC nor was there any occasion for the UPSC to give its opinion.
31. The question as to whether the advice sought from the Commission would pertain to quantum of punishment or the same could also be with regard to nature of penalties, minor or major, as enumerated in Rule 11(i) to (iv) and (v) to (ix) respectively, shall have to be answered in the context that the stage for seeking the opinion from the Commission had not yet reached.
32. We have given our anxious thought to the question posed above and are of the considered view that the advice of the Commission can only be in regard to quantum of punishment or penalties and not with regard to nature of penalties i.e., minor or major. Two separate penalties, minor or major, have been enumerated in Rule 11. Separate procedure for proceedings against the delinquent for minor or major punishment has been provided under Rules. After prescribing separate procedure for major or minor penalties under Rule 11, the authorities have been empowered to impose the penalties, which have been specified in Rule 12 in regard to employees of various Services. Rule 13 vests powers with the President or any authority empowered by him to institute disciplinary proceedings against any Government servant. Rule 14, as mentioned above, prescribes procedure for holding of inquiry, when it shall pertain to punishing an employee with major punishment. Rule 15 deals with action on the inquiry report, be it minor or major punishment. Rule 16 deals with procedure for imposing minor penalties.
33. Perusal of the Rules would unmistakably reveal that whether the penalty to be imposed shall be minor or major and accordingly whether the procedure such as contemplated under Rule 14 or 16 would apply, has to be in the exclusive domain of the Disciplinary Authority. It is true that there is no provision specifically saying that before arriving at a decision as to the nature of misconduct of the employee, whether the penalties imposed should be the one covered either under minor or major penalties, but the very fact that the advice of the Commission is be sought only on the conclusion of the inquiry and when the Inquiry Officer returns the finding against the employee and even the punishment is also thought over by the Disciplinary Authority would demonstrate that the advice of the Commission would only be with regard to the punishment already thought over by the Disciplinary Authority on conclusion of the entire proceedings.
34. In the context of the scheme of provisions of Rules of 1965 contained in Part-V and Part-VI mentioned above, it is apparent that the advice of the Commission is to be sought on conclusion of the proceedings and if that be so, the nature of penalties to be imposed whether minor or major has to be decided before the entire procedure is gone into.
35. We are of the firm view that the advice of the Commission cannot travel beyond the quantum of punishment and, in any case, it cannot be in regard to the nature of penalties, be it minor or major and thus, also not in regard to the procedure to be followed for minor or major penalties.
36. There appears to be considerable merit in the contentions raised by the learned Counsel representing the applicant that when the Disciplinary Authority had already applied its mind to the facts of the case and decided to initiate disciplinary proceedings only under minor penalty, the UPSC was not legally justified in advising to convert the case of minorpenalty into majorpenalty and accordingly recommend formajorpenalty proceedings.
37. It is conceded position, even before this Tribunal, in the counter replies filed by respondents No. 1 and 2 and 3 separately that it is only because of the advice of the UPSC that the Disciplinary Authority changed the minor penalty proceedings into the major penalty proceedings and that too after initially disagreeing with the suggestion of the UPSC and only on the intervention of the Prime Minster.
38. Much has been urged by the respondents to defend the action or orders on the dint of procedure prescribed in the case of difference of opinion between the Disciplinary Authority and the UPSC.
39. It is urged that the Ministry of External Affairs vide its letter dated 20/21.2.2003 referred the disciplinary case of the applicant for advice of the Commission as per the requirement of consultation as laid down in Article 320(3)(c) of the Constitution of India read with Regulation 5(1) of the Regulations of 1958, and that when the case was referred to the Commission, it was observed by the Commission that the charges against the Charged Officer are so grave and prima facie warrant major penalty proceedings. The advice of the Commission was conveyed to the Disciplinary Authority but the Ministry of External Affairs requested the UPSC to reconsider the advice. On consideration, the UPSC reiterated its advice. In such difference of opinion, it is urged that the matter has to be referred to the Prime Minister and when the advice of the Prime Minister was to give precedence to opinion of the UPSC, the applicant was served with a memorandum of major penalty proceedings.
40. Reliance has also been placed on Office Memorandum dated 10.11.1995 with the caption "Consultation of the UPSCProcedure to be followed while disagreeing with the advice of the Commission". The memorandum, insofar as the same is relevant, reads as follows:
The undersigned is directed to refer to the instructions contained in various Office Memoranda issued from time to time as quoted in margin on the aforesaid subject and to say that existing instructions lay down that when UPSC is consulted, the recommendation/advice of the Commission though advisory in nature, should be given fullest consideration considering the constitutional status of Commission and they are not to be departed with save in very exceptional circumstances.
Procedure to be followed where it is proposed not accept the advice of UPSC has also been laid down in the marginally quoted orders. However, this Department has come across some instances where the prescribed procedure for not accepting the Commission's advice has not been followed. The Commission have also quoted such cases in their Annual Report. It is, therefore, again emphasized that the prescribed procedure, as reproduced below, should be followed invariably when it is proposed not to accept the Commission's advice given on a reference made to it.
41. The learned Counsel representing the applicant joins no issue on the plea raised by the Counsel representing the respondents for dealing with the matter in the way and the manner it has been done in the event of difference of opinion between the Disciplinary Authority and the UPSC. He, however, vehemently contends that the said procedure was not required to be followed at all as it was a case where UPSC lacked jurisdiction to give its opinion. We are inclined to accept the contentions of the learned Counsel representing the applicant. Indeed, it is not a case, as held above, where UPSC could tender its advice to proceed against the applicant for major or minor penalty and to follow the procedure accordingly. As held above, it was within the discretionary power of the Disciplinary Authority. It is only after following the procedure for major or minor penalty, and when even the Disciplinary Authority may come to the conclusion with regard to the quantum of punishment that the advice of the UPSC has to be sought for. The said advice, as held above, will only be with regard to the quantum of punishment.
42. Mr. A.K. Bhardwaj, learned Counsel representing respondents No. 1 and 2, we may mention, placed reliance upon two decisions of the Tribunal, in his endeavour, to show that the charge memo for minor penalty could be withdrawn considering the gravity of misconduct and fresh charge sheet for major penalty could be issued. It is indeed so held by the Chandigarh Bench in Shri Ram Asra v. Union of India and Ors. 1997 (2) SLJ 26 (Chandigarh)(CAT) : 1997(1) ATJ 59 and by the Calcutta Bench of this Tribunal in Ramdhani Ram v. Union of India and Ors. 1987 (2) ATC 66. The said judicial precedents, in our view, cannot be pressed into service on the issue involved in the present case. Once it is held that the consultation with the Union Public Service Commission for its opinion would only be with regard to the quantum of punishment and not with regard to the procedure for minor and major penalties, surely, the judicial precedents mentioned above would be of no help to the respondents.
43. It is pertinent to mention here that, during the course of the hearing of this case, Mr. Bhardwaj placed on record a confidential memorandum dated 21.3.2007. This memorandum came to be issued in the context of the objections raised by the applicant dated 12.10.2004. It came into being after two and half years from the objections raised by the applicant. The objections of the applicant inter alia, were that the requirement of consultation of the UPSC under the Rules of 1965 could not be at the stage of exercising discretion of issuing the charge memo either under Rule 14 or under Rule 16 of the Rules of 1965. It was specifically stated by the applicant that the UPSC would step in only at the stage when the inquiry is held and completed and the question of imposition of penalty arises, and further that the UPSC is not required to be consulted nor does it have any discretion in deciding whether the proceedings have to be initiated under Rule 14 or Rule 16 of the Rules of 1965. Further, this discretion lies solely with the Disciplinary Authority. For the first time, it is recorded in the memorandum dated 21.3.2007 that the Disciplinary Authority did not consult the UPSC on the nature-of proceedings but on quantum of punishment and the advice rendered by the UPSC was also in regard to the quantum of punishment and not in regard to the nature of proceedings and the Disciplinary Authority, after considering all aspects of the matter including the advice of the UPSC on the quantum of punishment, decided to withdraw the proceedings under Rule 16 and to initiate fresh proceedings under Rule 14 of the Rules of 1965. It appears that the respondents were cautious that the objections raised by the applicant had substance. It is for that reason, it appears that the objections raised by the applicant in response to memorandum of major penalty were not dealt with for a long time and that the memorandum dated 21.3.2007 came to be issued, when the objections raised by the applicant were reiterated in the O.A. It was not the case of the Disciplinary Authority ever before issuance of memorandum dated 21.3.2007 that the advice tendered by the UPSC was in regard to the quantum of punishment and in regard to the nature of proceedings as well and that the Disciplinary Authority, after considering ail the parameters including the advice of the Commission on the quantum of proceedings decided to withdraw proceedings under Rule 16 and to initiate fresh proceedings under Rule 14 of the Rules of 1965. The memorandum dated 21.3.2007 appears to be a cover up only to meet the objections raised by the applicant. Both overtones and undertones of counter reply on behalf of the respondents would show that the opinion given by the UPSC was to proceed against the applicant for major penalty which would automatically result into adopting the procedure prescribed for such penalties and also that the minor penalty proceedings were converted into major being constrained under the circumstances, as has been mentioned above, and not because that the Disciplinary Authority was of the view that the applicant needs to be visited with major penalty. It may be recalled that in the counter reply filed by on behalf of respondents No. 1 and 2 it has been specifically mentioned that "in this case, the DOPT informed the Disciplinary Authority that the Prime Minister had 'directed that the advice of the Union Public Service Commission may be accepted' and since the advice of the UPSC was for major penalty, the Disciplinary Authority was left with no other option but to change the procedure from Rule 16 to Rule 14 of the Rules of 1965". Based upon the pleadings of the parties and the various orders mentioned above, there would be no doubt that the Disciplinary Authority had sought opinion of the UPSC with regard to the quantum of punishment only, and further that the UPSC had opined it to be a case of major penalty, and further that the impugned memorandum for proceedings against the applicant for major penalty came to be issued only because of the opinion of the UPSC which was treated to be binding.
44. The first question framed above thus needs to be answered in favour of the applicant and we do accordingly.
45. Coming now to the factual aspect of the case and to find out as to whether the UPSC was justified in advising the Disciplinary Authority to inflict major penalty on the applicant it shall have to be seen, as to what was exact charge against the applicant, to what extent he had made admission, what was the view of the Disciplinary Authority, and as to on what basis the UPSC advised the Disciplinary Authority to give major punishment to the applicant.
46. In the memorandum dated 26.12.2002, the applicant is stated to have entered into an improper relationship with Ms. Yin Ou, a local employee in the Embassy. Mr. Menon, Ambassador of India in China, is stated to have spoken to the applicant in July, 2002 about his improper relationship with the local employee and advised him to discontinue the relationship. It was also made clear to him that the relationship had security implications. The applicant was again warned by the Ambassador in September 2002 to desist from the improper relationship or else action would be taken against him. However, the applicant would continue the relationship and had even taken Ms. Yin Ou on local tours. The memorandum would impute misconduct on the part of the applicant in entering into an improper relationship which could have had security implications. The applicant in reply to the memorandum dated 26.12.2002, appears to have admitted his relations with Ms. Yin Ou by stating that he had explained to her that there was never anything between them and she should not meet him. Ms. Yin Ou would, however, insist to talk to him. To prevent any untoward incident and to protect his family, the applicant stated that he had talked to her on a few occasions. He denied taking her on local tours by stating that she had come to these places on her own on the pretext that she wanted to talk to him. The admission made by the applicant is quite clear and would not go beyond the improper relationship between him and Ms. Yin Ou. There is no admission that such relation could have security implications or that he persisted with the relations with her and took her to two places when he was on tour.
47. The applicant was issued another memorandum dated 22.1.2003 proposing action against him under Rule 16 of the Rules of 1965. The statement of imputation of misconduct or misbehaviour is accompanied by the statement of action proposed to be taken. The imputation of misconduct or misbehaviour is almost in the same terms as memorandum dated 26.12.2002. The applicant reiterated his admission to the extent as mentioned above, in his reply dated 31.1.2003. While giving its advice to proceed against the applicant for major penalty proceedings, the Commission referred to the background of the case, the charges contained in the statement of imputation of misconduct or misbehaviour, the defence projected by the applicant accepting the charge and also the opinion of the Disciplinary Authority. It is significant to mention that the Disciplinary Authority, as mentioned in the opinion of the Commission which was given on 9.5.2003 (Annexure R-1), had considered the facts and circumstances of the case and especially view expressed by Disciplinary Authority that (i) to the best of Ministry's knowledge, there has not been a breach of national security because of the affair, and (ii) this is the first instance that the officer has come to the notice of the Ministry for such conduct, and that the Disciplinary Authority had also decided to impose a penalty of "withholding promotion for a period of two years from the date of issue of the order on the Charged Officer. The Commission then recorded its view or observations in Paragraphs 3.3 and 3.4, which read as follows:
3.3 The Commission observe that the D.A. recognizes the seriousness of the misconduct of the CO. as they have commented that "it is creditable on the C.O.'s part to have freely and frankly admitted his errors and expressed remorse. This is, no doubt a mitigating factor, but it does not diminish the seriousness of his action in having an affair with a foreign national in a country with which India has national security interests of a high order, and where Indian diplomats and officials need to exercise a special caution in their actions. As a mid-ranking officer who had previously served Missions abroad and in Headquarters, it is presumed that he understood the possible implications of his actions, especially after his Head of Mission warned him. However, he continued to see the Chinese national and did not keep his superior officer informed."
3.4 The Commission observe that the D.A. has further commented that "to the best of the Ministry's knowledge, the affair has not led to any breach of national security. This is the first instance that the officer has come to the notice of the Ministry for such conduct. The D.A. considers the flat admission of his affair and expression of regret as a mitigating factor. However, the misconduct of an officer of this level who was also temporarily looking after the work of Head of Chancery is very serious, especially so when he was posted to such a sensitive country. It is not clear on what basis the D.A. has said that the affair has not led to any breach of national security. In the "espionage" world "Honey traps" are one of the oldest tools of the spymaster's craft. As First Secretary of the Embassy holding additional charge of HOC, it is sure that the CO. was handling sensitive matters and his prolonged affair could have had serious implications. It is obvious that the affair was not a one night stand and the seriousness of the affair can be gauged by the fact that he had not listened to the warning conveyed by the Ambassador on two occasions. His excuse that the lady had followed him on the tours is also not very credible. The officer was a fairly Senior Officer who had done posting abroad and at home also and was thus experienced and knowledgeable enough to know the responsibilities of his job and the implications of the action that he was indulging in.
(Emphasis supplied).
48. It is in the light of the observations made by Commission, inclusive of that are contained in Paragraphs 3.3 and 3.4 that the Commission opined that the applicant deserves major penalty. Reading of Paragraphs 3.3 and 3.4 would manifest that the opinion of the Disciplinary Authority that there was no breach of national security because of the relationship has not only been doubted but practically overruled by observing that in the "espionage" world "Honey traps" are one of the oldest tools of the spymaster's craft. It would further show that the Commission added new dimensions that may tend to aggravate the misconduct of the applicant without any basis in fact, and further that the plea of the applicant that he had not taken Ms. Yin Ou on the tours was rejected. The positive opinion of the Disciplinary Authority was that the unholy relationship between the applicant and Ms. Yin Ou had not resulted in the breach of national security.
49. There is indeed marked difference, which would make a difference in the gravity of the allegations made against the applicant, between non-breach of national security due to undesirable relationship between the applicant and Ms. Yin Ou, and the likelihood thereof. The positive opinion of the Disciplinary Authority that relationship between the two had not resulted in breach of national security could not be overturned by the UPSC in the garb of advice sought from it, which was only on the quantum of punishment. This Tribunal is of the firm view that the UPSC acted as an Appellate Authority over the opinion of the Disciplinary Authority in the nature of misconduct alleged against the applicant, and this was wholly impermissible. The UPSC did not stop at that and went further in rejecting the plea of the applicant in that he had not taken Ms. Yin Ou on the tours, which was refuted by the applicant in his reply to the show cause issued to him for inflicting minor punishment upon him. As to whether the UPSC could opine with regard to nature of punishment against the applicant, be it minor of majoi1, may be debatable, but there shall be no scope for argument insofar as the question of allegations of misconduct are concerned. It was in exclusive domain of the Disciplinary Authority to cull out the extent of misconduct indulged by the applicant from the facts and the UPSC had no jurisdiction whatsoever to add new dimensions to it. Confronted with the situation as mentioned above during the course of arguments, the learned Counsel for the respondents had no answer. No arguments were thus raised justifying addition to allegation of misconduct against the applicant by the UPSC. It is obvious that aggravation of allegation of misconduct against the applicant as thought over by the Commission may have resulted into forming its opinion to inflict the applicant with major penalty. In the facts and circumstances of the case, it has to be held that the UPSC was not justified to opine conversion of minor punishment into major.
50. Before we may come to the judicial precedents cited for and against by the learned Counsel representing the parties, we may mention that provisions of Article 320(3)(c) are not mandatory, and further that the consultation with the Commission does not extend to make the advice of the Commission binding on the Government, as held by the Hon'ble Supreme Court in State of U.P. v. Manbodhan Lal Srivastava AIR 1987 SC 912, wherein it was observed as follows:
It is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order passed by the Government.
51. Coming now on the judicial precedents cited by the learned Counsel representing the parties, we may mention that no direct judgment touching on the core issues has been cited before us and, therefore, it is not necessary to make an elaborate discussion on the case law cited before us.
52. The learned Counsel representing the applicant, however, in addition to relying upon some observations from a book authored by D.E. Smith titled 'Judicial Review of Administrative Action' (IV Edition), would rely upon C.S. Rowjee v. State of Andhra Pradesh , D.K. Yadav v. J.M.A. Industries and A.K. Kariapakv. Union of India . The Counsel places reliance upon the views of author of 'Judicial Review of Administrative Action' under the caption 'Acting under Dictation', which would read, thus:
An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two modern Commonwealth cases licensing bodies were found to have taken decisions on the instructions of the heads of Government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure.
53. The extract from the book authored by D.E. Smith as above and the decision of the Hon'ble Supreme Court in C.S. Rowjee (supra), may support the contention of the learned Counsel representing the applicant that advice of the Commission was not binding upon the Disciplinary Authority, but insofar as the decisions in D.K. Yadav and A.K. Kariapak (supra) are concerned, the same, in our view, would have no bearing upon the controversy involved in the present case. We may, however, state that these two judicial precedents were cited to support the contention that once the applicant had confessed to his guilt, it would be against the principles of natural justice to convert a minor penalty into major. This, however, is not the situation in hand. The first memorandum issued to the applicant would not refer to any kind of punishment that may be inflicted upon him. The memorandum only contains allegations against the applicant. It is only when he admitted the basic charge against him that the concerned authority issued the memorandum for minor penalty. It is thus not a case that on admission of the misconduct the minor penalty proceedings might have been converted into major penalty proceedings.
54. The learned Counsel representing the respondents has placed reliance upon number of judgments, which, as mentioned above, would not be relevant for adjudicating the real issue involved in the case. Reliance has been placed upon decision of Madras Bench of this Tribunal in the matter of M.D. Jose v. Director General of Posts. New Delhi and Ors. 1988 (1) SLJ 114, to urge that in a case of apology it may not be necessary to hold further enquiry. The judgment of the Hon'ble Supreme Court in Ministry of Finance and Anr. S.B. Ramesh 1998 (2) SLJ 67 (SC) : 1998 SCC (P & S) 865, has been cited to contend that it cannot be said that an unlawful relationship between an employee and a woman would not be a misconduct. A Full Bench judgment of the Tribunal (Jabalpur Bench) in the matter of G.R. Meena v. Union of India and Ors. 1995 (2) ATJ 173, has been cited to contend that expressing an opinion on the seriousness of charge levelled against an incumbent cannot be considered that a finality on the alleged misconduct has been recorded. Another judgment of the Tribunal in the matter of Charanjit Singh Khutana v. Union of India 1994 (2) SLJ 360 (PB-ND) (CAT) : (1994) 27 ATC 378, has been cited. This judgment deals with supply of copy of the Commission's advice to the charged employee and a brief statement of reasons where such advice is not accepted. It was held by the Tribunal that the requirement of supplying a copy has to be completed before imposition of penalty by the Disciplinary Authority, because the Commission's advice is an additional material which is taken into consideration by the Disciplinary Authority for arriving at its conclusion, but this requirement of law will be applicable only prospectively, and the cases in which the Disciplinary Authority had already imposed penalty before 1.10.1993 when the Hon'ble Supreme Court delivered judgment in Managing Director, ECU, Hyderabad v. B. Karunakar , would not be affected. The Counsel also relies upon the decision of the Jodhpur Bench of the Tribunal in the matter of Devi Singh v. Joint Registrar, Co-operative Societies Pali and Anr. 1999 (1) ATJ 666, to contend that no lenient view can be taken only on admission of guilt.
55. The main contentions raised by the learned Counsel representing the parties have been discussed, but for challenge to the proceedings on the ground of delay. The applicant, as mentioned above, seeks setting aside of the proceedings taken till date as delay, according to him, has vitiated the said proceedings. Having considered the contentions for and against, we are of the view that no strait jacket formula can be laid down on this issue. Whether the delay alone would vitiate the proceedings would depend upon the facts and circumstances of each case. This is what the Hon'ble Supreme Court held in State of A.P. v. N. Radliakrishnan 1998 (3) SLJ 162 (SC) : 1998 SCC (L & S) 1044. It was observed therein that balance has to be maintained between the purity of administration and the adverse effect which the prolonged proceedings have on an employee. In the facts and circumstances of the present case, we are of the view that delay in finalising the proceedings cannot be the sole factor to quash the departmental proceedings. However, it cannot be said that the Tribunal cannot mould the relief to mitigate the (sic) of the applicant. The proceedings against the applicant started when memo was issued to him on 26.12.2002. The applicant submitted reply within four days, i.e. on 30.12.2002. In a matter of 22 days thereafter, the applicant was issued memo dated 22.1.2003 proposing action against him under Rule 16, to which also the applicant submitted his reply almost immediately, i.e., on 31.1.2003. It is in February, 2003 that the Disciplinary Authority sought opinion of the Commission, and the Commission conveyed its advice to the Disciplinary Authority vide letter dated 9.5.2003. The Disciplinary Authority, however, by its letter dated 4.6.2003 requested the Commission to reconsider the advice. On reconsideration, the Commission reiterated its advice vide letter dated 21.8.2003. There appears to be no plausible explanation as to why the respondents could not further move in whatever action they thought appropriate. There is no explanation thus furnished that would justify no action between 21.3.2003 up to 22.9.2004 when a memorandum for major penalty proceedings was issued. The applicant immediately responded vide his objections dated 12.10.2004 against the memorandum for proceeding against him for major penalty, but even by the time the present application was filed no decision was taken in the matter. The only explanation furnished is that the applicant had raised legal issues and it took time to the respondents to sort out the same. The explanation is far from satisfactory. The ultimate decision that has now been taken during the pendency of this application does not reveal that the respondents had actually thought objections raised by the applicant to be so complex that may take more than two years to settle. The proceedings, as mentioned above, in the present case started in December, 2002. In the manner aforesaid, a period of four and a half years is gone by. In the meantime, officers four batches junior to the applicant have been promoted to the post of Director. It is not denied by the respondents that whatever punishment, be that which was originally suggested or the one which was later proposed, had been inflicted upon the applicant, the effect of the same would have been over by now.
56. In the facts, as mentioned above, we are of the view that ends of justice shall be met if we order that whatever punishment may be imposed upon the applicant, the same would have its effect from the day the Commission gave its first opinion, i.e., 9.5.2003. The effect of the punishment would thus not go beyond the period that may be envisaged under rules if reckoned from 9.5.2003.
57. In view of the discussion made above, the second memorandum dated 22.9.2004 seeking to proceed against the applicant for major penalty (Annexure A-1) is quashed. Inasmuch as the memorandum dated 21.9.2004 withdrawing the memorandum for minor penalty proceedings was with a view to proceed against the applicant for major penalty, the same shall also stand quashed. Respondents would be at liberty to pass orders imposing a minor penalty against the applicant in accordance with law as expeditiously as possible and not later than a month from receipt of certified copy of this order. In view of the peculiar facts and circumstances of this case, the costs are made easy.