Central Administrative Tribunal - Ahmedabad
Mahendra Doshi vs Union Of India (Uoi) And Ors. on 23 April, 2004
Equivalent citations: 2005(1)SLJ155(CAT)
ORDER Shankar Prasad, Member (A)
1. Aggrieved by the order dated 28.8.2000 of the President imposing on him the penalty of dismissal from service the applicant has preferred the present O.A. He has sought for the quashing of the order.
2. This is the third round of litigation. The applicant had filed an O.A before the Principal Bench against his suspension. Thereafter this applicant along with Shri K.V. Chandrasekhar & Shri J.N. Shaikh had filed OA 753/98 for quashing of the individual chargesheets, which had arisen from the same transactions. The said OA was disposed off vide order dated 1.2.99. The Tribunal held:
"We direct the respondents to complete the proceedings as expeditiously as possible and in any case within six months from the date of receipt of a copy of this order subject to full co-operation on the part of the applicant. It is needless to say that it is the duty of the respondents to take necessary follow up action with the UPSC where necessary and take possible steps to ensure that final orders are issued within the time limit prescribed".
The case of applicant in brief is that this charge sheet is in respect of an incident of 1993. Preventive orders under COFEPOS A were issued against this applicant and K.V. Chandra Sekhar on 30.5.91. These were quashed by the Gujarat High Court vide their order dated 8.10.94. Show cause notice under Customs Act was also issued in December, 1994. The competent authority has finally held that the charges are not proved. This charge sheet was however, issued in June 1998. Because of the delay in finalisation of disciplinary proceedings the Tribunal had to be approached. Commissioner Departmental Enquiry under CVC was appointed as the Enquiry Officer. In his report dated 28.12.99 he held that none of the charges was proved. CVC was reportedly consulted but the copy of the said report is not available (whether they were consulted at this stage or at the time of passing of final order is not clear from the pleadings). The disciplinary authority thereafter sent a disagreement note dated 22.6.2000. The reasons for disagreement are not given. The respondents had relied on the statements of appraisers US Goud, J.N. Meena & Ajay Banik. The last two had been examined as prosecution witnesses and they deposed in favour of applicant. This was not considered. The Disciplinary Authority has only relied on the statements of Soli Perumal and Gopal Krishnan to issue this disagreement note. These statements were not found to be of probative value by the Enquiry Officer. Solly's statements were not considered reliable in penalty proceedings and case against applicant and imposter Om Prakash Punjabi was also dropped. The applicant submitted his reply vide his letter dated 31.7.2000. The UPSC was consulted behind the back of the applicant. A copy of the said report dated 27.11.2000 was not made available. Thereafter the impugned order dated 28.11.2000 was passed.
The UPSC in their report have held that contradiction in the evidence of Solly Perumal are not such as to discard his evidence completely. It was on the amount of money that there was discrepancy. In his deposition before the I.O. after nearly six years. Solly Perumal has come out with the truth that he has bribed CO to the tune of three lakhs and J.N Meena to the tune of Rs. one lakh and paid Rs. 8 lakhs to one Mr. Nagarkar, Commissioner of Customs. The charge sheet against Shri Nagarkar has been dropped. The evidence of Arjun H. Parmar, driver of Solly Perumal is there to corroborate that he travelled along with Solly Perumal. This driver has not been cited in the disagreement note.
3. The respondents have filed a detailed reply. They have stated that necessary preliminary enquiry and investigation were carried out. Thereafter an explanation was called. The first stage advice of CVC is a statutory requirement. The charge sheet could be issued only thereafter. One cannot lose sight of the fact that compliance with the aforesaid statutory obligations/requirements is a time consuming process but is indispensable. The earlier OA was for limited purpose of revoking the appellant's suspension order. (They have not said anything about the subsequent order dated 1.2.99 fixing time limit of six months). The COFEPOS A order was quashed on technical grounds. The grounds on which adjudication proceedings were dropped against Om Prakash Punjabi arc totally different.
The CVC's opinion is advisory in nature and is tendered to the competent authority to assist him . CCS (CCA) Rules do not provide for making available a copy of the CVC's advice. The competent authority has not violated any principles of natural justice.
The disagreement note was given. The allegation of accepting bribe has been clearly proved by the evidence of Solly Perumal. The enquiry officer B.S. Bakshi was examined as SW-2. Shri Ajay Banik and Shri J.N. Meena were interested witnesses as they also had been charged in this case.
UPSC advice is self contained and is on judicious consideration of all facts. A copy of the UPSC advice has been furnished along with the order in accordance with Rule 32 of CCS (CCA) Rules.
4. We have heard the learned lawyer on behalf of both the parties.
5. We note that this applicant vide MA 469/2003 dated 23.7.2003 has produced the following documents:
(a) Order C-14011/16/99-Ad V-3570-76 dated 2.11.2001 issued by Department of Revenue dropping the charge sheet dated 26.10.99 issued to Mr. Z.B. Nagarkar, the then Commissioner.
(b) Common order dated 17.1.2003 passed in OA 875/2001 filed by Ajoy Banik & O.A. 49/2002 filed by J.N. Meena. Bill of Entry No. 4120 of M/s. Natraj Metal Private Limited was the subject matter of first OA while another Bill of Entry 4316 in respect of R.K. International was subject matter of second OA. The consignment was declared as lead scrap, which concealed ball bearing. The respondents in their written statement indicated that the enquiry officer held the charges as not proved. The disciplinary authority forwarded his tentative conclusion. Director General (Vigilance), Customs & Central Excise, advised CVC that Enquiry Officers conclusion should not be accepted and suggested imposition of penalty on both these persons and agreed with the Enquiry Officer that no penalty is recommended on Shri Goud. CVC advised accordingly. The Disciplinary Authority had to consider and abide by the advice of CVC as per the laid down procedure and practice followed.
The Tribunal having regard to comments in De Smith, Woolf & Gowell's Judicial review of administrative action and Apex Court decision in N.S. Karjagi v. Syndicate Bank, AIR 1991 SC 1507, held that consultation with CVC is foreign to CCS (CCA) Rules and quashed the orders of penalty, It also held "The respondent No. 3 is directed to take action on enquiry report in accordance with law and pass appropriate orders accordingly, without being influenced by extraneous considerations and/or instructions issued by any authority within (sic. outside) the scope of the statutory rule. The respondents are directed to complete the exercise as early as possible preferably within two months of the receipt of the order".
(c) Orders dated 25.6.2003 passed by CEGAT in 23 appeals arising out of orders in original passed by Commissioner of Customs, Mumbai in F. No. 3/10-358/94- SIB-Adj. CAO No. 536/99/CAC/CC/KDM dt. 29.10.99. This order in original is also produced.
6. Even though the MA was allowed on 29.7.2003 and these documents taken on record, there is no response of the respondents to these documents.
7. It appears from the perusal of charge sheet in the present case that the following Bills of Entry are subject matter of present charge sheet Importer Bill of Entry M/s. R.K. International 3058 M/s. Natraj Metals 4120 M/s. Ram Metals 4316
8.(a) MHA resolution 24.7.64- AVD dated 11.2.64 provides for setting up of the Central Vigilance Commission (CVC) and defines its powers and functions. Para 2 (viii) and 2(ix) are as follows:
(viii) Commission will have the power to require that oral enquiry in any departmental proceedings, except in petty cases, should be entrusted to one of the Commissioners for Departmental Enquiries.
(ix) The Commission will examine the report of the Commissioner for departmental enquiries, which will in all cases be submitted by the Commissioner for departmental enquiries to the CVC, and the Commission will forward the record of the case to the appropriate Disciplinary Authority with its advice as to further action.
[Page 298, Vigilance Manual, (Vol.II, Part 1) 1981 edition]
(b) This very volume at page 281 quotes following extracts of MHA OM No. 37115/ 73-A VD(III) dated 5.9.75 on the method to be adopted in the case of difference of opinion between the SPE and administrative authorities.
"281. In all cases relating to Gazetted Officers which are enquired into by the S.P.E. the investigation report will be sent by the S.P.E. (i.e. CBI) to the CVC, who will advise the administrative Ministry concerned about the course of further action to be taken. In cases in which an oral enquiry is held, the report of the enquiry authority will be submitted to the CVC who will, after going through the report and all other relevant records, advice the disciplinary authority concerned regarding the further action to be taken on it. The administrative or Disciplinary Authority will normally act in accordance with the advice of the CVC. That would hardly leave any room for a difference of opinion arising between SPE and the administrative authorities in cases pertaining to gazetted officers."
(c) Vigilance Manual Vol. I quotes the following instructions on the subject of final order on the report of inquiring authority-
"8.1. In cases where consultation with the UPSC & the CVC is required, every effort should be made to ensure that such cases are disposed off as quickly as possible.
8.5. The CVC tenders its advice in confidence and its advice is a previleged communication. No reference to the advice tendered by the commission should, therefore, be made in any formal order.
8.6 It may happen that a charged public servant may go to a Court of law either during the currency of the disciplinary proceedings or on their completion, pleading inter alia that a copy of the advice tendered by CVC to the disciplinary authority has not been made available to him, and, therefore, the rules of natural justice were violated. In such cases, the Commission should be consulted and it would advise the Disciplinary Authority regarding in regard to the drafting of the affidavit in opposition mainly with reference to the matters dealt with in the course of hearing before the CDIs. about procedural aspects of departmental enquiries or advice tendered by it on report of CDIs. The Supreme Court in CA No. 1277 of 1975 - Sunil K. Bannerjee v. State of W.B. and Ors. - have held inter alia that Disciplinary Authority could consult the CVC and it was not necessary for the Disciplinary Authority to furnish the charged officer with a copy of the CVCs advice. This may also be kept in the previous paragraph."
(d) The Vigilance Manual Vol-I has following provisions regarding the role of CVO.
"10. (viii) To ensure that CVC is consulted at all stages where it is to be consulted and that as far as possible the time limits prescribed in the Vigilance Manual for various stages are adhered to."
17. After the Disciplinary Authority has applied his mind to the Inquiry Officer's report and come to a tentative finding that one of the major penalties should be imposed, the final order should be carefully drafted. It should show that the Disciplinary Authority has applied its mind and exercise its independent judgment. No reference should be made to CVC advice in any order of the Disciplinary Authority."
9. The applicant in case of N.S. Karjagi v. Syndicate Bank, (supra) was challenging his order of compulsory retirement. The case of the applicant was that the said order had been issued pursuant to advice of CVC in terms of Department of Economic Affairs letter dated 21.7.1984 and circulars dated 27.7.84 & 8.9.86 of the Syndicate Bank Headquarters. The letter dated 21.9.84 had provided that advise of CVC should not be modified except with the prior confidence of the Commission and this Ministry. The July, 1984 letter of the Syndicate Bank had forwarded this letter of the Union Government for strict compliance. The subsequent letter of September, 1986 provided that in case of disagreement with such advice the matter shall be referred back to the Chief Vigilance Officer who will tender advice again on reconsideration and if the authorities concerned is still not inclined to accept that order the matter shall be brought to the notice of the CMD and his decision thereon shall be final. The Apex Court in para 19 of its judgment held:
"They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See De Smith's Judicial Review of Administrative Action, 4th edition page 309). The impugned directive of the Ministry of Finance, is therefore, wholly without jurisdiction and plainly contrary to the statutory regulations governing disciplinary matters."
The Apex Court quashed this guidelines and issued a direction to the Chairman of Syndicate Bank to withdraw both these circulars. They also quashed the disciplinary proceedings and Appellate Authority with a direction to the former to dispose of the petitioner's case in accordance with law and in the light of the observations made.
10. The Apex Court in State Bank of India v. D.C. Aggrawal, AIR 1993 SC 1197 has held as follows:
"Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order. Non-supply of the Vigilance report was one of the grounds taken in appeal. But that was so because the respondent prior to service of the order passed by the Disciplinary Authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned Additional Solicitor General that CVC recommendations are confidential. Copy of which, could not be supplied cannot be accepted. Recommendations of Vigilance prior to initiation of proceedings are different than CVC recommendation which was the basis of the order passed by the Disciplinary Authority."
11. The CVCs circular of September, 2000 modifies the earlier stand contained in the Vigilance Manual that advice of CVC is confidential in nature meant to assist the Disciplinary Authority and should not be shown to the employee.' The earlier instruction also provided that this is a privileged communication and should not be referred to. Para 3 of the circular is as follows.
"3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e : first stage advice is obtained on the investigation report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a copy of the Commission's first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him, for his information. However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report, to give him an opportunity to make representation against IO's findings and the CVC's advice, if he desires to do so."
12. A comparison of the show cause notice F. No. C-14011/18/94-Ad. V-2258-60 dated 22.6.2000 issued to this applicant by the Department of Revenue and the show cause notice F.No. 11/10(A)(CON) 9/98/544. Excise dated 11.9.2000 addressed to J.M. Shaikh and the show cause notice dated 11.9.2000 issued to K.V. Chandra Sekhar by Commissioner of Central Excise & Customs, Ahmedabad-1 reveals the following:
(i) Except for the name of the charged officer and the following extra paragraph the SCN issued to J.N Shaikh is identical to that of K.V. Chandra Sekhar "The bride money was collected through the agents S/Shri Perumal & Shri Gopalakrishnan. It is also evident from records that Shri Sheikh was present in the room of Shri Punjabi at Hotel Madhuban."
(ii) Except for the name of the charged officer and the following extra paragraph the SCN issued to this applicant Mahendra Doshi is identical to that of K.V. Chandra Sekhar. "The bribe money was collected through the agent S/Shri Perumal & Shri Gopalakrishnan. It is also evident from records that Shri Doshi and Shri Perumal were staying in the same hotel."
13. The reply filed in all these three OAs indicates that CVC was consulted. A copy of the CVC advice and the stage at which they were consulted is not indicated. It is clear that two of the bills of entries referred to in this charge sheet were subject matter of charge sheet issued to Ajay Banik & J.N. Meena respectively. The reply filed by the respondents in the OAs filed in Mumbai Bench (para 5(b) supra) indicates that CVC advice is obtained after the receipt of enquiry officers report and before communicating the disagreement note. The same appears to be the earlier scheme as per the CVC manual.(para 8 supra).
The respondents in their reply before the Mumbai Bench have accepted the same. Thus there are reasons to believe that disagreement note has been issued subsequent to the second stage advice of CVC. We note that Mumbai Bench has quashed the penalty order only on this count.
14. We also note that the Apex Court has already held in D. C. Agarawal's case that CVC advice has to be made available. CVC themselves have issued circulars to this effect, (para 10,11 supra). The Constitution was amended after the decision in Sunil K. Bannerjee's case. We also note the decision in Karjagi's case that the decision of Disciplinary Authority has to be an independent decision and cannot be dictated by decisions of Vigilance Authorities.
15. The Apex Court in Yoginath D. Bagde v. State of Maharashtra and Anr. (1999) 7 SCC 739, has called out the relevant extract of the decision of the Three Judge Bench of the Apex Court in Punjab National Bank v. Kunj Bihari Misra.
"When like in the present case, the enquiry report is in favour of the delinquent officer but the Disciplinary Authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importants is the finding of the Disciplinary Authority."
"It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the Disciplinary Authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed."
The Apex Court further held that being so the right to be heard would be available to the delinquent upto the final stage. This right being constitutional right of an employee cannot be take away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.
16. We also note that the Constitution Bench of the Apex Court in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 has summarised the law on the subject of obligation to give reason for a decision. The Apex Court held:
"But the other considerations which have also weighed with this Court in taking this view are that the requirement of recording reasons (i) guarantee consideration by the authority (ii) introduce clarity in the decisions (iii) minimize chance of arbitrariness in decision making."
17. It is thus clear that the disagreement note is akin to show cause notice issued to be in a case requiring pre decision hearing, It will accordingly have to be a speaking notice so that the affected person can effectively meet with the case.
18. We also note that a Division Bench of the Tribunal in Charanjit Singh Khurana v. Union of India, 1994(2) SLJ (UJ) 360 while following the Constitution Bench decision in MD ECIL v. B. Karunakar, Ramzan Khan and B.C. Agrawal's case has laid down that the copy of a UPSC report has to be made available. The said decision is as follows:
"17. The reasonings given by Their Lordships of the Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra) for the supply of a copy of a report of the Inquiry Officer to a delinquent also apply to the advice given by the Commission. The reasonings given by the Commission in support of its advice are an additional material unknown to the employee but are taken into consideration by the Disciplinary Authority while arriving at its conclusion. The advice of the Commission constitutes an important material before the Disciplinary Authority, which is likely to influence its conclusion. We. therefore take the view that the right to receive a copy of the advice of the Commission is an essential part of the reasonable opportunity at the first stage, as envisaged in Article 311 (2) of the Constitution and also a requirement of the principles of natural justice. Before the judgment of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad (supra) the legal position was fluid and the mist has been cleared now. Rule 32 of the rules by necessary implication denied to a delinquent employee the right to receive a copy of the advice of the Commission before the Disciplinary Authority took its decision on the question whether the charge against such an employee stood established. Keeping in view the fact, that innumerable orders of the Disciplinary Authority would be rendered bad on the ground that a copy of the advice tendered by the Commission to the Disciplinary Authority had not been supplied to a delinquent employee by the Disciplinary Authority before imposing a punishment upon him, we feel that such an illegality should not be taken into account in cases where the Disciplinary Authority had passed orders of punishment before 1.10.1993, the date on which the Hon'ble Supreme Court rendered its judgment in the case of Managing Director, ECIL, Hyderabad (supra). We, therefore, hold that the petitioner cannot derive any advantage of the fact that a copy of the advice of the Commission was not furnished to him before the passing of the impugned order."
The Mumbai Bench in A.N. Batyabal v. Union of India and Ors., 1996 (34) ATC 466 after going through the case laws made the following comments regarding furnishing of State Government comments and CVC & UPSC report.
44. In view of the discussions above concerning position of law as laid down by the Supreme Court in Mohd. Ramzan Khan and Managing Director, ECIL, Hyderabad cases, we are of the view, that it would be necessary for the Government to have a critical look at the rules concerning consultation with the UPSC, consultation with the CVC and in the case of All India Services (Disciplinary and Appeal) Rules concerning recommendations of the State Government which accompany the Enquiry Officer's report to the Union of India. We therefore observe that the Government may look into the above rules and to see if any changes in the rules are required and warranted after the law laid down by the Hon'ble Supreme Court in the case of Mohd. Ramzan Khan and Managing Director, ECIL, Hyderabad, as also our observations on the application of law on some other aspects of the disciplinary proceedings as brought out in this case."
19. It is clear from the foregoing that a co-ordinate bench of this Tribunal has held that a copy of UPSC report has to be made available before passing of the order notwithstanding the provision of Rule 32 of CCS (CCA) Rules. It is clear from the records of this case that the copy of the said report was not made available before passing the order.
20. In view of what has been discussed and summarised in paras 17&19 above we quash and set aside the show cause notice issued by the Disciplinary Authority and the final orders of punishment passed on the applicant. The Disciplinary Authority should issue a speaking show cause notice containing his decision on merits and uninfluenced by advice of CVC. A copy of the CVC advice shall also be made available. The advice of UPSC as and when it is consulted should also be made available to the applicant to make his representation against that report before passing final orders in this case. It will be open to the respondents to take a decision in accordance with Rule 10(4) of CCS (CCA) Rules either to reinstate him in service or to place him under deemed suspension. Other contention raised in this OA are left open. The O.A. is disposed of with these directions. No costs.