Central Administrative Tribunal - Kolkata
Amarjit Singh vs O F B on 10 May, 2024
1 OA 1325/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 350/01325/2013
DATE OF HEARING : 13.03.2024
DATE OF JUDGMENT: 10.05.2024
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Shri Amarjit Singh, son of Late Attar Singh, aged about 65 years,
had been working for gain as Senior Deputy Director General
under the DGOF & Chairman, Ordnance Factory Board, Kolkata,
(Since superannuated with effect from 30.04.2008), residing at
T-19, Merlin Green, Diamond Harbour Road, PO Kriparampur,
District-South 24 Parganas, West Bengal.
.............Applicant
VS.
1. The Union of India service through the Secretary, Ministry
of Defence, Department of Defence Production, having its office
at South Block, New Delhi-110011.
2. Ordnance Factory Board service through the DGOF &
Chairman, Ordnance Factory Board, 10-A, S. K. Bose Road,
Kolkata-700001.
3. The Under Secretary to the Government of India, Ministry
of Defence, South Block, New Delhi-110011.
4. The Desk Officer, Department of Defence Production,
Ministry of Defence, New Delhi-110011.
.........Respondents
For The Applicant(s): Mr. N. P. Biswas, Counsel
For The Respondent(s): Mr. B. B. Chatterjee, Counsel
Ms. T. Sinha Palit, Counsel
2 OA 1325/2013
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a) An order/ direction do issue to cancel, withdraw and/or rescind the impugned order No. Order No. 13024/10/Vig.I/07/D(Vig.) dated 22.04.2013, issued by the Desk Officer, by order and in the name of the President, imposing upon the applicant a penalty of "withholding 10% (ten percent) of the monthly pension, otherwise admissible to him, for a period of two years"
as contained at Annexure-"A-9".
b) An order/ direction do issue to cancel, withdraw and/or rescind the impugned Memorandum of Charges issued vide No. 13024/10/Vig.I/07/D(Vig.) dated 28.04.2008, by the Under Secretary to the Government of India, Ministry of Defence, New Delhi-110011, alleging that the applicant exhibited lack of integrity and devotion to duty and thus acted in a manner unbecoming of a Govt. servant and thereby violated provision of Rule 3 (1) (i), (ii) and (iii) of CCS (Conduct) Rules, 1964 and as contained at Annexure-"A/3" .
c) To direct the respondent authorities and each of them, their agents and/or subordinates, to forthwith pay the terminal dues as the applicant is entitled to immediately after superannuation, but for the disciplinary action.
d) To direct the respondent authority and each of them, their agents and/or subordinates, to forthwith pay interest on the terminal dues withheld since the date of superannuation to the date of their actual payment.
e) To direct the respondents to produce the entire records of the case before this Hon'ble Tribunal for adjudication of the points at issue.
f) Costs pertaining to this application.
g) And/or to pass such order or further order or orders and/or direction or directions as this Hon'ble Tribunal deem fit and proper."
2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
2.1 The applicant was an Officer of the 1971 batch of IOFS (Indian Ordnance Factories Service, Gr. 'A').
2.2. Two days before his superannuation i.e. on 28.4.2008, a charge sheet under Rule 14 of CCS (CC&A) Rules, 1965 was issued alleging that while the applicant was working as General Manager/OEFH during 2004-2005 and 3 OA 1325/2013 2005-2006, had approved placement of 24 development orders in systematic violation of provisions of Para 28.4.4 of OFB Material Management Manual, 1993 in placement. He approved the placement on certain firms, which were identified in a completely arbitrary manner. The applicant approved splitting of the requirement of the 6 items into 24 development orders in an irregular manner, so as to bring them within the financial powers of GM for development order. It is also alleged against him that he also played a crucial role in the definite modus operandi followed by arbitrarily placement of supply orders as development orders in a series of 27 cases, by having approved placement of orders in 24 of these 27 cases and because of the said acts of omission and commission it is alleged against the applicant that he lacked integrity and devotion to duty and thus violated Rule 3(1)(i), (ii) & (iii) of CCS (Conduct) Rules, 1964.
2.3. On denial of the charges, the Disciplinary Authority had appointed an Inquiry Authority (hereinafter referred to as IO) vide order dated 20.09.2008 to inquire into the charges framed against the applicant in respect to charge memorandum dated 28.04.2008. The applicant was permitted to engage defence assistant and accordingly he had participated in the said departmental inquiry. On conclusion of the departmental inquiry, the Inquiry Officer submitted his report on 18.12.2009. (Annexure A/7 collectively refer). 2.4. The inquiry authority in its report dated 18.12.2009 by considering the material on record and evidence surfaced during the inquiry had recorded the finding that charges levelled against the applicant were not established. 2.5. However, after submission of said Inquiry Report, the Disciplinary Authority did not take any action for a period of two years and, as such, the 4 OA 1325/2013 terminal benefits of the applicant remained withheld. Therefore, the applicant moved this Tribunal by filing O.A. No. 1008/2011 which was disposed of vide order dated 04.04.2012, directing the Disciplinary Authority to supply the copy of the disagreement note to the applicant and upon receipt of it, the applicant was directed to submit his reply within a period of one month and according had directed the Disciplinary Authority to finalize the proceeding within a further period of one month from the date of receipt of reply from the applicant. (Annexure A/6 refer) 2.6. Subsequent to the applicant's superannuation on 30.04.2008, the departmental proceeding which was instituted while he was in service has been considered to be proceeding under Rule 9 of the CCS (Pension) Rules, 1972.
2.7. Vide Memorandum dated 30.05.2012, the Disciplinary Authority have supplied a copy of Inquiry Report dated 18.12.2009 (wherein the IO had recorded the finding that the charges were not established against the applicant) along with copy of his tentative "Disagreement Memo (Note)" in respect to the findings of the IO as well copy of CVC's second stage advice to the C.O i.e. applicant herein and had directed him to submit his representation/submission, if any, within 15 days of receipt of the said memorandum/disagreement note etc. dated 30.05.2012. (Annexure A/7 collectively refer) 2.8. In response to the said disagreement note dated 30.05.2012, the applicant submitted his representation on 06/09.11.2012 (Annexure A/8 refer). In the said representation, by explaining the reason for erroneous conclusion in the disagreement note and had requested the Disciplinary 5 OA 1325/2013 Authority to reconsider his case in light of the evidence on record and withdraw or cancel the Memorandum of Charges dated 28.04.2008.
2.9. Thereafter, considering the applicant's representation against the Disagreement memo and material on record, the DA had tentatively recommended imposition of suitable cut in pension under Rule 9 of CCS (Pension) Rules, 1972 and the case was referred to the UPSC for obtaining their advice in the matter. In response to it, UPSC had tendered their advice vide letter dated 09.04.2023 and had agreed with the disagreement note of the Disciplinary Authority.
2.10. After receipt of UPSC advice dated 09.04.2013, the DA vide impugned order dated 22.04.2013 concluded that all the charges (including Article I to IV) stands proved and had imposed a penalty of "withholding 10% (ten percent) of monthly pension, otherwise admissible to the applicant, for a period of two years" Further, it has been held that Gratuity may be released if not required in any other case. (Annexure A/9 collectively refer). 2.11. Being aggrieved with the punishment order dated 22.04.2013, the applicant had approached this Tribunal by way of filing the present O.A. 2.12. This Tribunal vide order dated 27.09.2019 dismissed the O.A. Being aggrieved, the applicant had filed WPCT 32 of 2020 before the Hon'ble High Court at Calcutta. By accepting the plea taken by the Writ Petitioner (therein) i.e. applicant (herein) that this Tribunal had not considered the submission/argument of the applicant that there was no wilful omission and commission on his part while placement of development orders and, his submission that he has not committed any misconduct as alleged and the submission that the punishment ought not to have been 6 OA 1325/2013 awarded without there being any sanction by the relevant CCS (Pension) Rules, and had dismissed the O.A. only on the ground consideration and accordingly, vide judgment dated 07.07.2021 by setting aside the impugned order and directed this Tribunal to decide the matter afresh being uninfluenced by its order dated 27.09.2019.
2.13. As per the directions issued by the Hon'ble High Court in WPCT No. 32 of 2020 decided on 07.07.2021, the present O.A. has been taken for hearing afresh.
2.14. The applicant herein had filed his supplementary affidavit as well written notes of arguments to substantiate his prayer sought in this O.A. The respondents have also placed on record their written notes of arguments along with supporting documents to deny the claim of the applicant.
3. Learned Counsel for the applicant mainly submitted as under:-
3.1. Learned Counsel for the applicant submits that splitting of orders, which is the primary charge against the applicant, was done as per Rules. He further submits that no pecuniary loss was caused to the Government nor did the applicant profit in any manner by splitting the tenders. Therefore, the applicant cannot be alleged to have committed any misconduct.
3.2. After an objective and comprehensive assessment of evidence adduced during inquiry, and after extensive analysis and evaluation of the fact and the rules, order and instructions, the Inquiry Authority had recorded his finding in his inquiry report dated 18.12.2009 (A/7 collectively) that the CO i.e. the applicant herein has utilized the powers delegated to him vide DE-7 & DE-8 (i.e. Office Order dated 29.05.2002, 7 OA 1325/2013 Annexure A/7 collective page no. 119 to 122 refer). Further, the IO had recorded the finding that the action of the applicant cannot be called to be violation of any provisions and held that Article 1 of the charge that CO violated the provision of 28.4.4 of OFB Manual. The IO in his report had also assigned cogent reasons for his conclusion that other charges levelled against the applicant has not been established. However, the Disciplinary Authority on suspicion, surmise and conjectures and contrary to the evidence adduced during the inquiry issued "disagreement note" to the finding of the IO which is not tenable in the eye of law.
3.3. It is stated that the DA in the "disagreement note" had considered extraneous materials and fresh allegation viz. "misuse of power through misleading interpretation", "procedure adopted by CO was not transparent and equitable", "misuse of his financial power" which as such are not part of the charge memorandum served upon the applicant.
Therefore, the DA without considering the detailed explanation as tendered by the applicant in his representation to the "disagreement note" as well not assigning any reason in the impugned order had erroneously held that the charge levelled against the applicant stands proved and consequently the penalty imposed upon the applicant is also bad in the eye of law.
3.4. It is stated that the DA failed to consider the material on record and the defence submitted by the CO to the effect that the development orders have been placed as per usual practice prevailing in the department and the same practice is as such followed not only in this department/factories but also in other factories all over India. 8 OA 1325/2013 Therefore, it demonstrates that the applicant has no committed any irregularities and had followed recognized practice.
In this regard, Ld. Counsel for the applicant by referring to the judgment passed by the Hon'ble Apex Court in the case of Union of India & ors. v. Alok Kumar reported in 2010 (3) SLJ I SC submits that it is settled principle of law that a good practice being followed for a long time and which is not against the Constitution is acceptable in law. 3.5. It is submitted that the charged officer has demonstrated before the Inquiry Officer as also in his representation against the "disagreement note" of the Disciplinary Authority that provision as stipulated in Para 28.4.4 of the Material Management Manual is as such not applicable in the case in hand. The DA had not considered the said issues which have been raised by the applicant and had erroneously passed the impugned order.
3.6. Ld. Counsel for the applicant submits that there is no allegation or proof of corruption, fraud, improper motive on the part of the applicant. Therefore, in the absence of overwhelming evidence to that effect, merely a procedural error or an error in judgment cannot constitute "misconduct" in violation of Rule 3(1)(i), (ii), (iii) of the CCS (Conduct) Rules, 1964. Ld. Counsel by referring to the judgment passed by the Hon'ble Apex Court in Union of India v. J. Ahmed reported in AIR 1979 SC 1022 would argue that "misconduct" has to have some element of delinquency / wrongful intention. It should arise in from ill motives, acts of negligence, but error of judgment or innocent mistake do not constitute such misconduct as alleged against the applicant. 9 OA 1325/2013 3.7. It is submitted that in absence of proved corruption, fraud or improper motive to deprive someone and to oblige some other, a bonafide decision taken in good faith in exercise of official duties in public interest cannot constitute "misconduct" for the purpose of departmental action as held by the Principal Bench of this Tribunal in the case of G.P. Sewalia v. Union of India & anr. reported in 2009 (2) SLJ 360 (CAT-PB).
He also relied upon judgment passed by the Hon'ble Apex Court in the case of Inspector Prem Chand v. Govt. of NTC of Delhi and ors. (2007) 2 SCC (L&S) 58 wherein it has been held that "an error of judgment per se is not misconduct. A negligence simpliciter is not a misconduct."
3.8. Further, Ld. Counsel for the applicant submits that the impugned order issued by the Disciplinary Authority is in flagrant violation of the principles of natural justice. In this regard, it is submitted that the DA had obtained 2nd Stage Advice of the CVC without obtaining representation of the applicant and thereby depriving the applicant of a reasonable opportunity as his rebuttal and justifiable grounds to respond to the disagreement note were not available before the CVC and the CVC in a prejudicial manner advised suitable cut in pension vide communication dated 23.05.2012. (Annexure A/7 collectively page 51 refer). Thus, the DA had prejudged the issue, became biased and took a final view before issuance of the "disagreement memo" dated 30.05.2012. At this stage, Ld. Counsel for the applicant would vehemently submit that after receipt of the 2nd Stage advice of the CVC 10 OA 1325/2013 dated 23.05.2012, the DA had issued "disagreement note" vide Memorandum dated 30.05.2012.
In furtherance to the aforesaid submission, Ld. Counsel would argue that Learned Counsel for the applicant submits that as per CVC circular no. 17/12/12 dated 07.12.2012 and DoPT's OM dated 26.09.2011, in case of Gr. A Officers, there was no need to obtain second stage advice from CVC in cases where the Disciplinary Authority does not disagree with the first stage advice of CVC and where UPSC's advice is mandatory before imposition of punishment. Learned counsel submits that from the disagreement note of the Disciplinary Authority it is obvious that he did not intend to differ from the first stage advice of the CVC. In the circumstances, the respondents have violated the instructions of the CVC and the DoPT by seeking second stage advice of the CVC.
Ld. Counsel would also argue that before issuance of 'disagreement note' in respect to finding recorded in the Inquiry Report, the DA had sought for 2nd Stage advice from the CVC and only after receipt of 2nd Stage advice had supply the 'disagreement note' to the applicant, the said action on the part of the DA is in violation of the prescribed procedure. Therefore, same is not sustainable in the eye of law. In support of the said submission, Ld. Counsel for the applicant placed reliance on judgment passed by the Hon'ble Delhi High Court in WP(C) No. 9519 of 2009 (UOI v. Kamal Kishore Dhawan & anr.) decided on 18.04.2012 as well order passed by the Principal Bench of this Tribunal in O.A. NO. 1738 of 2007 dated 06.03.2009 (M.L. Sharma v. UOI) reported in 2009 (3) SLJ 103 (CAT PB).
11 OA 1325/20133.9. Ld. Counsel submits that after retirement of the applicant, the disciplinary proceeding has been conducted against him in terms of provision of Rule 9 of the CCS (Pension) Rules, 1972 which empowers the Hon'ble President only to withhold pension in whole or part thereof. But this power of the Hon'ble President is hedged with a condition precedent that a finding should be recorded either in departmental inquiry or judicial proceedings, that the pensioner committed "grave misconduct" or "negligence" in discharge of his duty while in office subject to the charge. It is also stated that a mere finding of misconduct will not be sufficient; it must be "grave misconduct" or negligence. In this regard, further it is submitted that from a bare reading of the memorandum of charges served upon the applicant, the report of the inquiry Officer as well the "disagreement note" issued by the DA, it can be seen that the applicant has nowhere been charged with grave misconduct or grave negligence. Ld. Counsel by referring to the judgment passed in the case of D.V. Kapoor v. UOI [AIR 1990 SC 1923] and judgment passed by Hon'ble Delhi High Court in WP (C) No. 12759- 61 of 2006 Union of India & ors. v. T.P. Venugopal reported in 2008 (3) SLJ 381 would submit that "the employee's right to pension is a statutory right. The measure of deprivation, therefore, must be correlated to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right of assistance at the fag end of his life as assured under Article 14 of the Constitution. Since, there is no charge of grave misconduct or grave negligence levelled against the applicant, the exercise of power by the President qua the Disciplinary Authority under Rule 9 of the CCS (Pension) Rules, is illegal and in 12 OA 1325/2013 excess of jurisdiction. Therefore, the impugned order is required to be set aside.
3.10. It is submitted that the applicant has not been provided with suitable opportunity to meet with the grounds stated by the UPSC in its advice dated 09.04.2013. The DA had not supplied the copy of the said UPSC advice to the applicant. Further, it is submitted that the DA had in a mechanical manner accepted the UPSC advice and has passed the penalty order dated 22.04.2013 "withholding 10% of the monthly pension for 2 years." Thus, the DA has issued impugned order in blatant violation of the principle of natural justice and the penalty order is unsustainable. In support of the said submission, Ld. Counsel has placed reliance on the judgement passed by the Hon'ble Apex Court in the case of UOI v. S.K. Kapoor (2011) 1 SCC (L&S) 725.
In sum, Ld. Counsel for the applicant would submit that the applicant had followed the procedure prescribed in OFB procurement Manual 1993 with regard to placement of development order issued while he was working as GM, OEFHZ during 2004-2005 and 2005-2006 and had discharged his official duties, therefore, the allegation levelled against the applicant cannot be construed as misconduct. There is no charge against the applicant for any fraud or misappropriation. The IO had recorded its finding that charges levelled against the applicant are not established. However, the Disciplinary Authority had issued 'disagreement note' that too only after obtaining the second stage advice of the CVC and violated the procedure prescribed under the CCS (CCA) Rules, 1965 as well the guidelines/instructions issued by CVC. The DA had obtained UPSC advice and by agreeing with the 13 OA 1325/2013 recommendation of the UPSC had imposed the penalty of cut of 10% pension upon the applicant without providing any opportunity to the applicant to submit his representation on the UPSC advice. Thus in violation of the principle of natural justice as well procedure laid down under CCS (CCA) Rules, therefore, the entire proceedings including the charge sheet and the punishment order should be quashed and set aside.
4. Per contra, respondents have denied the claim of the applicant by filing their reply. The respondents have also filed their written notes of arguments along with supportive documents to substantiate their stand.
By referring to the reply and document placed on record, Mr. B.B. Chatterjee, Learned Counsel for the respondents mainly submitted as under:-
4.1. That complaint of irregularities and corruption was received at Ministry of Defence (MOD) with copy to Central Vigilance Commission (CVC) in respect to OEF, Hazratpur (OEFHZ). On sequel of investigation it was found that in series of cases where development orders were placed by OEFHZ during 2004-2006 in violation of OFB Procurement Manual 1993 and existing Government instruction and guidelines.
Therefore, the CVC vide first stage advice dated 22.04.2008 (R/2 of the reply of the respondents refer) had recommended initiation of regular departmental action for major penalty against the applicant along with other officers.
4.2. Based on the said 1st stage advice, a show-cause by way of charge memorandum dated 28.04.2008, the competent Disciplinary Authority 14 OA 1325/2013 had decided to hold an inquiry against the applicant since he was working as GM/OEFH at the relevant time.
4.3. Accordingly, the competent Disciplinary Authority issued charge memorandum dated 28.04.2008 for major penalty under Rule 14 of CCS (CCA) Rules, 1965. Along with the said charge memorandum, the applicant has been supplied with details of Article of Charge, Statement of Imputation and list of Relied Upon Documents. Since Relied Upon Documents annexed as Annexure II to the charge memorandum disclose the misconduct of the applicant, the DA has chosen not to indicate any name of witnesses in the present case.
4.4. On receipt of charge memorandum, the applicant denied the claim and had participated in the departmental inquiry held against him. On conclusion of the inquiry, the IO had submitted his report dated 18.12.2009 wherein the IO held that the charges were not established. However, the DA disagreed with the said finding of the IO. 4.5. Further, the respondents have stated that in terms of the prevailing instructions issued by the CVC vide Circular No. 99/Vgl/66 dated 28.9.2000 it was mandatory for the DA to refer to the inquiry report to the CVC for 2nd stage advice along with tentative views of the Disciplinary Authority on the Inquiry Report, further in the said Circular, more particularly, para 3 & 5, it stipulates that upon receipt of 2nd stage CVC advice, copy of the said CVC advice along with the copy of Inquiry Report and the tentative views on the Inquiry Report, was required to be made available to the concerned charged officer to give him an opportunity of make representation against the same. 15 OA 1325/2013
It is stated that the said provision to seek 2nd stage advice from the CVC as contained in the CVC circular is also mentioned in Note 6 (B) below to Rule 15 of CCS (CCA) Rules, 1965 (published in Swamy Compilation of CCS Rules, February 2015 Edition). 4.6. Pursuant to the prevailing CVC instructions in the Circular dated 28.9.2000, the DA, had forwarded the copy of the Inquiry Report along with his Tentative views (disagreement note) on the finding of the said Inquiry Report to the CVC for its second stage advice vide MoD ID dated 31.01.2012.
4.7. The CVC had tendered its 2nd stage advice vide letter dated 23.05.2012 to the DA (Annexure A/7 page No. 55 of O.A. refer). On receipt of it, the DA in terms of the CVC circular dated 28.09.2000, had supplied the copy of the said 2nd stage advice of CVC along with DA's Tentative Disagreement Note on the finding of the Inquiry Officer as well copy of Inquiry Report to the applicant vide communication dated 30.05.2012 and had granted an opportunity to submit his representation. In response to it, the applicant had submitted his representation on 06/09.11.2012.
4.8. Ld. Counsel for the respondents submits that the applicants were supplied the copy of disagreement note along with 2nd stage advice to submit his response/representation to it, therefore, it cannot be said that the applicant has not been granted opportunity to submit his representation before the DA had arrived at a conclusion vide impugned order dated 22.04.2013.
16 OA 1325/2013
Thus, the respondents denied the submission of the applicant about violation of principle of natural justice before issuance of impugned penalty order.
4.9. Further, it is submitted that the Disciplinary Authority has followed the procedures as stipulated in the CCS (CCA) Rules and the provision of CCS (Pension) Rules as well by following principle of natural justice in concluding the disciplinary proceeding instituted against the applicant herein. Only thereafter, the Disciplinary Authority finally held that charges levelled against the applicant stands proved and had accordingly imposed penalty upon the applicant vide impugned order dated 22.04.2013.
4.10. Learned Counsel submits that the charges against the applicant constituted grave misconduct in as much as he had acted in complete violation of the existing rules and provisions with respect to placing of orders through tendering process.
4.11. While responding to the contention of the applicant that there is no allegation of any fraud, corruption, misappropriation or loss to the Government and the only allegation is that the conduct of the applicant is not in conformity with the provision of Para 28.4.4 of OFB Material Management Manual 1993 and the submission that in absence of mens - rea or delinquency on the part of the applicant cannot constitute 'misconduct' for the purpose of disciplinary action, in this regard, Ld. Counsel for the respondents have vehemently submitted that the essential element is 'perverse conduct' or 'absence of good conduct even 17 OA 1325/2013 if the act is known to cause no loss to public funds', misconduct or attempt to commit can exist.
It is stated that Malafide is not a necessary element for proving 'misconduct'. It might be that malafides are not always evident, but they can be inferred.
By relying upon judgment passed by the Hon'ble Apex Court in the case of Union of India v. K.K. Dhawan reported in 1993 (2) SCC 56 and and instructions contained in CVC's circular, Ld. Counsel would argue that disciplinary action can be taken for omission and commission exhibiting lack of integrity and devotion to duty against an employee.
In the present case, the applicant was charge-sheeted for approval of cases involving violation of provisioning procedure, vendor selection in completely arbitrary manner and the said acts of omission and commission constitute the 'misconduct', on the part of the applicant. Therefore, it is not correct on the part of the applicant to claim that the alleged charges under the charge-memorandum does not constitute 'misconduct'.
4.12. Further, the respondents have also contended that in absence of allegation of fraud, corruption, misappropriation or loss to the Government against the applicant do not absolve him automatically. The irregularities committed by the applicant was clearly established from the available documents and records and same was upheld by the Disciplinary Authority as well as by the independent Constitutional and Statutory bodies viz. UPSC and CVC respectively.
18 OA 1325/20134.13. Ld. Counsel for the respondents would argue that in the present case the charges were proposed to be proved based on the documents and no oral witnesses was required to prove the charge for which no name was given in annexure 4 of the chargesheet. The applicant was granted opportunity to submit his list of defence witness, if so desired but he had not offered any defence witness during the inquiry. Thus, the documentary evidence adduced during the inquiry had established the guilt of the applicant and based on it, DA had assigned reason to disagree with the finding of the Inquiry Officer. It is denied that the Disagreement Note was issued based on suspicion, surmise and conjecture.
It is also stated that there was no new allegation on the charges mentioned in the disagreement memo. The DA had recorded his finding based on evaluation of evidence on record produced during the inquiry. It is stated that if the applicant had any issues regarding examination of any defence witnesses, he could have raised it before the inquiry but raising an issue at this stage only is an attempt on his part to divert the main issue.
4.14. It is submitted that while disagreeing with the finding recorded by the IO on all the Articles of charge I to V, the DA in his tentative disagreement note dated 30.05.2012 by referring to the documents relied upon by the CO and his defence as well the discussion of the IO, the DA had assigned cogent reason for his non-acceptance to it. The said disagreement note of DA mainly reads as under:
19 OA 1325/2013
"Article I, It is alleged that Shri Amarjit Singh while functioning as GM/OEFHZ approved placement of 24 development orders in systematic violation of provisions of para 28.4.4 of OFB Material Management Manual, 1993 in placement.
While discussing the charge, the Inquiry Officer observed that the charged officer has utilized the powers delegated to him vide DE-7 (OFB letter No. 10/6/MM(P&C) dated 29.05.2002) & DE-8 (The extract of delegation of Financial Powers, where GM has the power upto Rs. 5 lakh for placement of development order) and the provisions of Para 28.4.4 of OFB Material Management Manual, 1993 were never operated in this regard and that his action cannot be called violation of any laid down provision. As such, Inquiry Officer has concluded that the Article
- I of charge that CO violated the provisions 28.4.4 is not established.
Charged officer has claimed that he has resorted to the root of placement of development orders as and when bulk orders supplied failed. DE-7 deals with source development through OTE and for development of special/critical items utilizing delegated power under point 8 of P-44 of Financial Power Booklet of January, 2002. Under 'general remarks' of Financial Power Booklet, it was mentioned that exercise of power listed in this action will be in accordance with guidelines/orders issued by OFB.
Para 28.4.1 of MM Handbook, 1993 (DE -1), Para C mentions that when total capacity of established source is not adequate to meet with the requirement including contingencies that may arise due to failure of any source, source development should be resorted to. Provision of Para 28.4.4 details methodology for source development through OTE. Under the above scenario, DE-7 which deals with special/critical items did not supersede the provisions under 28.4.4 of MM Handbook, 1993 nor intended to. Charged officer ignored provisions under 28.4.1 (c) and placed development order as per DE-7 which is misuse of power through misleading interpretation since DE-7 is for development of special/critical items and not for general items like clothes stitching. DE-7 has no provision to deal with supply -
failure situation. Para 28.4.1 (c) deals with supply failure situation. Provisions under DE-7 20 OA 1325/2013 cannot be generalized. Therefore, the findings of the inquiry officer is not agreed to and this charge is considered tentatively as "Proved".
Article II It is alleged that Shri Amarjit Singh while functioning as GM / OEFHZ approved placement of 24 development orders on certain firms, which were identified in a completely arbitrary manner.
While discussing the charge, the inquiry officer observed that the Charged Officer mentioned that firms collected information from factory officials regarding criticality of requirement of particular item, due to supply, failure of existing sources, capacity verified and order placed following OEF Hqrs., guidelines communicated vide letter No. OEF/012/MISC/SP dated 11.03.2003 (DE - 9) for placement of development orders on a particular firm after assessing certain aspects in one particular case of development pertaining to OCF Avadi. Similar process had been followed by the officer in placing development orders for fabrication job for various garments. The court of inquiry feels that pragmatic applicability of guidelines for one item to others can be done by the charged officer, hence, identification of firms was not arbitrary and Charged Officer did not violate any instructions. Inquiry Officer had concluded that charged Article - II is not established.
DE-9 is not a guideline but a letter of instruction to a specific factory to place development order of a specific item on specific form, Para 1 of which itself was violation of provisions under 28.4.1 of MM Handbook 1993.
However, charged officer followed DE-9 instead of following provisions under action between vendor and factory officials by providing space to the forms in the Estate, in collecting information regarding shortfall of supply, submission of request for placement of sell orders and subsequent placement of orders on them which were systematic violation of transparency to be maintained. The methodology followed was not transparent and inequitable. Therefore, the findings of the Inquiry Officer is not agreed to and this charge is considered tentative as "Proved".
21 OA 1325/2013Article III "It is alleged that Shri Amarjit Singh, while functioning as GM/OEFHZ approved splitting of the requirement of the six items into 24 development orders in an irregular manner, so as to bring them within the financial powers of GM for development orders.
While discussing the charge, Inquiry Officer observed that the charged officer pleaded that there is no embargo by any rule that more than one development order cannot be placed at a time is reasonable and in fact development of more sources would ultimately lead to better competition in the future. The placement of order for same items on different forms cannot be terms as splitting of quantity to bring procurement value within financial powers of GM. In view of the above, inquiry officer has concluded that the charge is not established.
Although it is agreed that there is need to develop more sources but the procedure allotted by charge officer was not transparent and equitable and the orders were placed by splitting required quantity to decide within charge officers financial powers.
Charged Officer placed 2/3 development orders for same items on a single day, and thus splitting the required quantity. Para 28.4.1 to 28.4.4 of the Material Management Handbook 1993 are the instructed method of source development and not by handpicking vendors as appears done by Charged Officer when anyone approaches him and that also without tendering.
Thus splitting of requirement to place orders under GMs power is clearly established.
Therefore, the findings of the inquiry officer is not agreed to and this charge is considered tentatively as Proved."
Article - IV "It is alleged that Shri Amarjit Singh, while functioning as GM/OEFHZ, played a crucial role in the definite modus operandi followed to arbitrarily place supply orders as development orders in a series of 27 cases, by having approved placement of orders in 24 of these cases."
"While discussing the charge the Inquiry Officer observed that Article IV of the charge is the summation of first 3 Articles of charge. On the basis of assessment of evidence in Article I, II and III no 22 OA 1325/2013 arbitrariness found in placement of 24 development orders by charged officer, Inquiry Officer has contended that this article of charge is not established."
"Charged Officer's mentioning that he followed DE-9 to approve placement of orders in 24 cases is misleading. DE-9 is neither a procedure order nor instructions to all clothing factories to follow the procedure mentioned in Para 1 of the letter.
It is a specific instruction to a specific factory for a specific item. Charged officer misused his financial power by placing development orders for the said items on a number of forms on the same day or within a few days of placement of development orders in violation of standing instructions and took shelter under DE-9.
Therefore, the findings of the Inquiry Officer is not agreed to. And this charged is considered tentatively as Proved."
Article - V "It is alleged that by the above act of omission and commission, Shri Amarjit Singh exhibited lack of integrity and devotion to duty and thus acted in a manner unbecoming of a Government servant and thereby violated Rule 3(1)(i), (ii) & (iii) of CCS (Conduct) Rules, 1964."
"While discussing the charge, the Inquiry officer observed that since charges under Article I to IV are not proved, therefore, Article V by inference is not established."
"Charged Officer had used a specific modus operandi to place supply orders in the name of development orders by misinterpreting -
twisting GM's power. Therefore, the findings of the Inquiry Officer is not agreed to and this charge is considered tentatively as Proved."
(emphasis supplied) 4.15. By referring the aforesaid reason mentioned in the disagreement note of the DA, Ld. Counsel for the respondents would argue that it is not correct on the part of the applicant that the DA had not assigned reason for disagreeing with the finding record by the IO. 23 OA 1325/2013 4.16. Ld. Counsel for the respondents further submits that the charges against the applicant were considered to be grave enough to proceed with under Rule 9 of the CCS (Pension) Rules, 1972 after the retirement of the applicant. Learned Counsel submits that part of the delay in finalizing the proceedings was attributable to the applicant. 4.17. Learned Counsel for the respondents further submits that the applicant was served with a charge memorandum under Rule 14 of the CCS (CCA) Rules, 1965 for imposing major penalty. The DA had supplied the copy of his Tentative Disagreement Note along with copy of Inquiry Report as well the copy of CVC's 2nd stage advice for his submission of representation thereon in terms of CVC circular. The applicant had submitted his representation accordingly.
Thereafter, it is incumbent upon the DA to follow the procedure prescribed in the sub-rule 3 & 4 of Rule 15 of CCS (CCA) Rules. (which was prevailing at the time of imposition of penalty upon the applicant). The said sub-Rule 4 of Rule 15 of the CCS (CCA) Rules prescribes condition to consult the Commission (i.e. UPSC in terms of definition stipulated in Rule 2(d) of the CCS (CCA) Rules) where it is necessary, the record of the inquiry shall be forwarded by the DA to the Commission for its advice and such advice shall be taken into consideration before imposing any penalty on the Government servant.
4.18. Accordingly, in the present case, in terms of Rule 15 of CCS (CCA) Rules (as in force at the relevant time), the DA had forwarded the entire record of the inquiry including the representation of the applicant on disagreement note to UPSC for its advice. Upon receipt of the UPSC 24 OA 1325/2013 advice, the DA by agreeing with the said advice vide impugned order dated 22.04.2013 had held that charges levelled against the applicant stands 'Proved' and had imposed penalty of withholding 10% of the monthly pension otherwise admissible to the CO for a period of two years and further ordered to release his Gratuity, if not required in any other case.
4.19. Ld. Counsel for the respondents submits that as per Rule 15 prevalent at that particular point of time, there was no provision to supply the copy of UPSC advice to the incumbent before imposition of penalty order upon the Government servant. Therefore, he denied the contention of Ld. Counsel for the applicant that the DA had violated the provision of Rule 15 and deprived him to submission of his representation on the UPSC advice before imposition of the order of penalty.
4.20. According to the respondents, the rule regarding furnishing of UPSC advice to the Government servant/CO before imposition of penalty has been incorporated in sub-clause 3 of Rule 15 vide DoP&T notification dated 31.10.2014 published as GSR No. 769 (e) in the Gazette of India on 31.10.2014 much later than the impugned penalty order dated 22. 04.2013 issued by the DA. (Annexure A - 4 of additional reply submitted by the respondents refer).
Therefore, it is stated by the respondents that in case of the applicant, the DA had correctly followed the provision of Rule 15 which was in force at the relevant time and, as such, there is no lacunae in the decision-making process.
25 OA 1325/20134.21. Ld. Counsel for the respondents denied the submission of the applicant that Disciplinary Authority has acted on surmise, suspicion and conjectures by ignoring the findings of the inquiry officer. It is stated that the penalty order incorporated all the essential attributes of self-constraint and reasoned order conforming to the legal requirements. The DA having regard to its findings on all of the Article of Charges and on the basis of the evidence adduced during the inquiry made in order imposing major penalty in terms of Rule 15(4) of the CCS (CCA) Rules, 1965 read with Rule 9 of the CCS (Pension) Rules, 1972. 4.22. The respondents while denying the averment of the applicant that post retirement action can be taken under Rule 9 of the CCS (Pension) Rules, 1972, however, it is hedged by the condition that government servant should be found guilty of "grave misconduct or negligence" during the period of service, but in his case he was found guilty of any fraud, misappropriation or wilful negligence, hence the allegation cannot constitute grave misconduct. In this regard, the respondents have submitted that there is a violation of provisioning procedure, vendor selection and in an irregular manner, as well arbitrary manner the CEO had acted splitting of the requirement and had followed modus operandi to arbitrary place supply orders as development orders and said acts of omission and commission exhibited lack of integrity and devotion to duty. It is stated that the imputation of charge shows that the misconduct on the part of the applicant was grave in nature. In this regard, by referring to the instructions issued by DoP&T vide O.M. No. 28027/3/87Estt.(A) dated 29.06.1990, the respondents submits that the disciplinary proceedings 26 OA 1325/2013 pertaining to serious or grave act of misconduct / negligence committed by the Government servant can be continued or instituted in terms of Rule 9 of CCS (Pension) Rules, 1972 even if no pecuniary loss was caused to the Government. Even in the absence of any pecuniary loss, the pension of pensioner can be withheld or withdrawn in whole or part, after following the prescribed procedure for an act of misconduct/negligence committed while in service. Therefore, it is not correct on the part of the applicant to state that the DA had erroneously imposed the punishment of major penalty by treating the act of the applicant as grave misconduct.
4.23. Further, by referring to the order passed by the Principal Bench of this Tribunal in the matter of V.K. Chaudhary, Joint General Manager, Ministry of Defence v. Union of India & ors. (O.A. No. 3957/2014) decided on 29.08.2019, Ld. Counsel for the respondents submits that in the said case, based on the CVC advice the Disciplinary Authority had also instituted disciplinary proceeding against Mr. V.K. Chaudhary, DGM, OEFH vide charge memorandum dated 28.4.2008 for the charges that while he was working as Deputy GM at OEFH, he was also instrumental in placing as many as 27 development order in violation of the prescribed procedure in para 28.4.4 of the OFB Material Management Manual, 1993. On conclusion of the inquiry, the IO had recorded its finding that charges levelled against the said Mr. Chaudhury is not established.
However, the DA by disagreeing with the said finding of the Inquiry Officer, and had issued Disagreement Note. After considering the representation of the said Mr. Chaudhury on the disagreement note, 27 OA 1325/2013 the DA held that the charges levelled against him were proved and accordingly vide order dated 22.06.2013 had imposed punishment on him of reduction of pay scale by two stages, to be in force for a period of two years with cumulative effect.
Being aggrieved, said Mr. Chaudhary had filed an O.A. No. 3957/2014 before the Principal Bench of this Tribunal, the said O.A. came to be dismissed vide order dated 29.08.2019. While dismissing the contention of the applicant therein that he had submitted his proposal and the ultimate decision was taken by the General Manager , therefore, he is not responsible for any alleged charges and has not committed any misconduct, as well upholding the punishment order of the DA, the Principal Bench in para 12 of the order dated 29.08.2019, had held that "another argument of the Ld. Counsel for the applicant is that his client has just submitted the proposals and the ultimate decision was taken by the General Manager. The record disclose that not only the applicant but also the General Manager were subjected to disciplinary proceedings, and the punishment of cut in pension was imposed against the General Manager. The one imposed against the applicant cannot be said to be disproportionate, if the nature of charges framed against him are taken into account."
Further, in para 7 of the said order it has been held that the DA had followed the procedure meticulously and had furnished extensive reasons in the disagreement note. In para 9 it has been held that if the charges are based on the undisputed documents, the occasion of examining witnesses does not exist. Accordingly, the impugned order passed by the DA was upheld and the O.A. was dismissed. 28 OA 1325/2013
Therefore, Ld. Counsel for the respondents would argue that the said order passed by Principal Bench in the case of subordinate staff of the applicant is squarely applicable in the facts and circumstances of the present case.
4.24. Ld. Counsel for the respondents would argue that in the present case the disciplinary proceedings against the applicant was held as per the CCS (CCA) Rules, which was prevalent at the relevant time. Since the disciplinary proceeding was initiated based on CVC investigation, the DA had followed the applicable CVC guidelines as stipulated in Circular dated 28.09.2000 and had sought 2nd stage advice, thereafter, had supplied the copy of same as well the disagreement note to the applicant for submission of representation on it. Therefore, the DA had followed the principle of natural justice in concluding the disciplinary proceeding against the applicant and by assigning cogent reason as well by agreeing with the UPSC advice, just penalty has been imposed upon the applicant which is commensurate to the gravity of the proven misconduct. Therefore, the applicant is not entitled to any relief as sought for in the O.A.
5. The applicant has filed his rejoinder as well the supplementary affidavit and had reiterated its submission made in the O.A. Additionally, it has been averred that the judgment relied upon by the respondents in the case of V.K. Chaudhury v. UOI in OA no. 3957 of 2014 decided by the Principal Bench of this Tribunal is concerned, in the said case, the rank and responsibilities of the said Mr. Chaudhury working as Dy. GM was different from the responsibility of the applicant herein. The said Mr. Chaudhury did not dispute the Relied Upon Documents of the DA, whereas the applicant herein had disputed the 29 OA 1325/2013 RUDs and had submitted his defence accordingly. Therefore, the said order passed in OA no. 3957 of 2014 of Principal Bench is not applicable in this case. Further, it is submitted that the disciplinary authority had blindly accepted the UPSC advice and had not granted any opportunity to submit his representation thereon and thereby issued impugned order in violation of the principle of natural justice.
6. Heard the Ld. Counsel for the parties at length and perused the materials on record.
7. It emerges from the record that on receipt of complaint by the Office of the Respondents to the effect that during 2004-2005 and 2005-2006, some of the officers including the applicant herein working at Ordinance Equipment Factory, Hazratpur (hereinafter referred to as OEFHZ) deliberately placed 'development orders' in violation of Ordinance Factory Board Procurement Manual, 1993, therefore, explanation was sought from the Officers concerned including the applicant herein since he was working at the relevant time as a General Manager at OFEHZ. He submitted his representation to Ordinance Factory Board.
7.1. During the preliminary investigation it was found that procedure prescribed in para 28.4.1 to 28.4.4 of Ordinance Board Material Management Manual was not complied with while placing certain purchase orders at OFEFZ and the applicant had acted in an arbitrary manner while procuring the material. At the relevant time, the case was examined by the Central Vigilance Commission (CVC) and vide its 1st stage advice dated 22.04.2008, recommended for initiation of Regular Departmental Action against the applicant and other officers (Annexure R/1 refer). 30 OA 1325/2013 7.2. Based on the aforesaid CVCs 1st stage advice dated 22.04.2008, the Disciplinary Authority had decided to inquire into the imputation of misconduct levelled against the applicant. Accordingly, the DA had issued charge memorandum under Rule 14 of CCS (CCA) Rules, 1965 dated 28.04.2008 for imposing major penalty in respect to charges levelled against the applicant, which reads as under:
" DATED 28..04.2008
MEMORANDUM
"While the applicant was working as General Manager/OEFH during 2004-2005 and 2005-2006,
(a) he had systematically violated the provisions of para 28.4.4. of Ordinance Factory Board Material Management Manual, 1993, had approved placement of 24 development orders on certain firms, which were identified in a completely arbitrary manner.
(b) the applicant had approved splitting of the requirement of the six items into 24 development orders in an irregular manner, so as to bring them within the financial powers of GM for development orders.
(c) the applicant played a crucial role in the definite modus operandi which he followed to arbitrarily place supply orders as development orders in a series of 27 cases, by having approved placement of orders in 24 of the said 27 cases.
(d) Thus, the said act of omission and commission of the applicant exhibited lack of integrity and devotion to duty and had acted in a manner unbecoming of a Government servant and thereby violated Rule 3(1)
(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964 by the applicant." (Annexure A/3 refer) (EMPHASIS SUPPLIED) 7.3. We deem it appropriate to refer and reproduce the Statement of Imputation of Misconduct in support of Article of Charges framed against the applicant, Ex-GM, OEFHZ i.e. Annexure II of the charge 31 OA 1325/2013 memorandum dated 28.4.2008 (Annexure A/3 to the O.A.) which reads as under:-
Annexure - II "Statement of Imputation of misconduct or misbehaviour in support of Articles of Charge framed against Shri Amarjit Singh, Ex- GM, OEFHZ , now Sr. DDG/OFG During 2004-05 and 2005-06, 27 development orders were placed for manufacture of certain 6 items. The details of these development orders are given in the Enclosure to Annexure-II.
2. The above 27 development orders were placed by following a definite modus operandi, which is as follows. An application is received from a firm indicating that it can carry out certain tasks at a particular rate. But nothing is on record to show how the application was received from the firm and on what basis the application was accepted by the factory. Based on this application, a noting is put up for placement of development order for a value below Rs. 5 lakh on that firm. In the instapt 27 case all the notings were routed through DGM/PV and concurred by the A.O. In 24 out of the 27 cases (all cases except at Sl. Nos. 5, 6 & 16 of Enclosure to Annexure-II), notings were approved by Shri Amarjit Singh in his capacity as General Manager, OEFHZ for placement of supply orders.
3. Further, as part of the modus operandi, computerized supply orders were generated giving false information about dates of the issue and opening of Tender Enquiries, as no TEs were floated in these 27 cases. In fact, in all cases the date of unsolicited application received from the firm was termed as date of TE to make up records for generation of computerized supply order. The grossness of the manipulation is evident from the fact that in all the 27 cases the date of application received from the firm is prior to date of issue of TE.
4. The above modus operandi was in violation of the provisions of Para 28.4.4 of OFB Material Management Manual. The said para stipulates a specific exercise for Identification of new sources (firms) for placement of development order. According to this, first an advertisement will be issued for listing new firms, Indicating the quantity that is likely to be placed as development order. Interested parties will have to furnish particulars of their capacity, experience in the field, details of supplies made to various parties, financial stading, IT certificate, Bank reference etc. Then, development orders will be placed on the basis of this advertisement.
5. In the instant cases, no such exercise as above was undertaken.
The firms were identified in an arbitrary manner. No advertisement was issued to elicit response from likely suppliers. Development orders were placed on arbitrarily chosen firms, without verifying their credentials.
32 OA 1325/2013
6. Further, even though there was definite requirement for each of these 6 Items, their requirement was split into 27 development orders, Instead of processing 6 procurement actions. This is evident from the manner in which development orders have been sequenced. In most of the cases 3 or 4 development orders for one item have been placed within a span of one or two months. In some cases, 2 or 3 development orders have been placed for one item the same day. This clearly points to intentional splitting of the requirements, so as to bring the orders within the financial powers of General Manager for development orders.
7. The above irregularities are attributable to Shri Amarjit Singh, ex GM/OEFHZ, having approved the office note for placement of development order in each of the above 24 cases, in his capacity as GM, OEFHZ.
8. By the above acts of omission and commission, Shri Amarjit Singh, ex. GM/OEFHZ now Sr. DDG/OFB, has exhibited lack of integrity and devotion to duty and thus acted in a manner unbecoming of a Government Servant and thereby violated Rule 3(1)(i), (ii) and (iii) of CCS(Conduct) Rules, 1964."
7.4. It emerges from the record that undisputedly on denial of the alleged charges by the applicant, the Departmental Inquiry under the provision of Rule 14 of CCS (CCA) Rules was ordered by the DA. The applicant had participated in the said departmental inquiry held against him and had submitted his defence.
On conclusion of the said departmental inquiry, the Inquiry Authority had submitted its inquiry report dated 18.12.2009, wherein finding has been recorded by the IO that the charges leveled against the applicant were "not established" (Annexure A/7 refer).
7.5. Further, it is noticed that on receipt of Inquiry report dated 18.12.2019, the Disciplinary Authority (referred herein as DA) did not agree with the findings recorded by the IO in the said Inquiry Report. Thereafter, the DA had sought 2nd stage advice of CVC vide communication dated 31.1.2012. 33 OA 1325/2013 7.6. It is the grievance of the applicant that without supplying the copy of the tentative disagreement note on the finding of the IO, the DA had obtained 2nd stage advice of the CVC and had deprived him of the opportunity to make his representation on the tentative disagreement note.
Per contra, Ld. Counsel for the respondents submitted that the disciplinary proceeding was instituted against the applicant based on CVC investigation and the 1st stage advice. The DA did not agree with the finding recorded by the IO in the inquiry report, thereafter in terms of instructions issued by the CVC vide Circular dated 28.09.2000, the DA had consulted the CVC by seeking 2nd stage advice.
7.7. Ld. Counsel for the respondents would argue that as per the instructions contained in the said CVC Circular dated 28.09.2000, the DA on receipt of 2nd stage advice of CVC, had supplied the copy of IO report, his tentative disagreement note along with copy of 2nd stage advice of the CVC to the applicant vide letter dated 30.05.2012 and had directed the CO/ applicant to make his representation/submission, if any, within 15 days of receipt of the said letter. (Annexure A/7 colly. of the O.A. refer). 7.8. Further, it is contended that on receipt of the DA's letter dated 30.05.2012, undisputedly, the applicant had submitted his detailed representation dated 6/9-12-2012 before the DA. Therefore, the Ld. Counsel for the respondents would submit that, as per the instructions contained in CVC's Circular read with provision of Rule 15 of CCS (CCA) Rules, 1965, the applicant was given opportunity to submit his representation on the Disagreement Note of the DA as well the 2nd stage advice of the CVC and 34 OA 1325/2013 thereby the DA had followed the principle of natural justice while conducting the disciplinary proceeding.
According to the respondents, the DA has followed the principle of natural justice while concluding the disciplinary proceedings and submits that no prejudice has been caused to the applicant.
8. To appreciate the aforesaid submission of the Ld. Counsel for the parties, at this stage, we deem it appropriate to refer to the relevant condition stipulated in CVC circular dated 28.09.2000, which prescribe the instructions about need to consult with CVC and making available a copy of the CVC's advice to the concerned employee. The relevant instructions contained in the said CVC Circular dated 28.09.2000, are reproduced hereunder:
" No. 99/VGL/66
Government of India
Central Vigilance Commission
***********
Satarkta Bhavan,
Block "A",
GPO Complex,
INA,
New Delhi - 110023
Dated the 28th September 2000
To
All Chief Vigilance Officers of Ministries/Departments of Government of India/Nationalised Banks/PSUs/Autonomous Bodies, Societies etc. Subject: Consultation with the CVC-Making available a copy of The CVC's advice to the concerned employee.
Sir, xxxxxxxxx
2. xxxxxxxxx
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 35 OA 1325/2013 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 finding and the CVC's advice, if he desires to do so.
4. xxxxxxxxx
5. Para 12.4.4 of Special Chapter on Vigilance Management in Public Sector Banks and para 22.6.4 of the Special Chapter on Vigilance Management in Public Sector Enterprise envisage that the inquiring authorities, including the CDIs borne on the strength of the Commission, would submit their reports to the disciplinary authority who would then forward the IO's reports, along with its own tentative views to the Commission for its second stage advice. The existing procedure in this regard may broadly continue. The disciplinary authority may, after examination of the inquiry report, communicate its tentative views to the Commission. The Commission would thereafter communicate its advice. This along with the disciplinary authority's views, may be made available to the concerned employee. On receiving his representation, if any, the disciplinary authority may impose a penalty in accordance with the Commission's advice or if it feels that the employee's representation warrants consideration, forward the same, along with the records of the case, to the Commission for its reconsideration.
6. Thus, if on the receipt of the employee's representation, the concerned administrative authority proposes to accept the CVC's advice, it may issue the orders accordingly. But if the administrative authority comes to the conclusion that the representation of the concerned employee necessitates reconsideration of the Commission's advice, the matter would be referred to the Commission.
(Sd/-) Officer on Special Duty"
(emphasis supplied) 8.1. It can be seen that the aforesaid guidelines emphasized that the Disciplinary Authority may, after examination of the inquiry report, communicate its tentative views to the Commission. The Commission would thereafter communicate its advice. This along with the disciplinary authority's views, may be made available to the concerned employee. On receiving his representation, if any, the disciplinary authority may impose a penalty in accordance with the Commission's advice or if it feels that the employee's representation warrants consideration, forward the same, along with the records of the case, to the Commission for its reconsideration. 36 OA 1325/2013 8.2. In the present case, as noted hereinabove, based on the 1st stage advice of the CVC undisputedly, disciplinary proceeding was instituted against the applicant under Rule 14 of CCS (CCA) Rules, 1965 for imposition of major penalty. The applicant had participated in the said disciplinary proceedings / inquiry On conclusion of the departmental inquiry, the IO submitted his report before the DA. It is noticed that the DA did not agree with the findings recorded by the IO and had drawn his tentative Disagreement Note on the inquiry report. As per the instructions contained in CVC Circular dated 28.09.2000, as discussed above, it is incumbent upon the Disciplinary Authority to consult the CVC on receipt of the inquiry report that too in a situation when the Disciplinary Authority has not agreed with the findings recorded by the IO. Pursuant to the terms of Circular dated 28.09.2000 (referred hereinabove), the DA deemed it fit to consult the CVC for its 2nd stage advice by forwarding the tentative disagreement notes to the CVC. Thus, the submission of the Ld. Counsel for the applicant that the DA had erroneously not supplied the copy of the Disagreement Note before consultation with the CVC is not tenable in view of the existing instructions of CVC dated 28.09.2000.
8.3. In this case, though the Disciplinary Authority issued a disagreement note on the inquiry report, the inquiry report itself held that none of the charges against the applicant were proved in the inquiry. Findings of the inquiry report thus were contrary to the first stage advice of the CVC. In the circumstances we do not find any irregularity in the action of the respondents in seeking second stage advice of the CVC particularly in view of the CVC's instruction quoted above that the Central Vigilance Commission need not be consulted for second stage advice on conclusion of the disciplinary proceedings. The import of the above directive is advisory and not 37 OA 1325/2013 mandatory. In our view non compliance with the above directive does not cause vitiation of the proceedings.
8.4. It is apt to mention that after receipt of 2nd stage advice of CVC dated 23.05.2012, the DA, by following the instructions contained in said CVC's Circular dated 28.09.2000, had supplied the copy of his Disagreement Note on the report of the IO along with copy of the 2nd stage CVC advice to the applicant vide order dated 30.05.2012 and had further directed the applicant to submit his representation, if he so desires.
8.5. It is evident that on receipt of DA's communication dated 30.05.2012 (including the copy of the Disagreement Note), the applicant had submitted his representation accordingly on 6/9.11.2000 (Annexure A/8 refer). It can be seen that the applicant was granted due opportunity to submit his representation on the disagreement note before imposition of penalty upon him. Thus, we find substantial force in the submission of the respondents that the DA had adhered to the provision of Rule 15(2) of the CCS(CCA) Rules and principle of natural justice to grant reasonable opportunity to the applicant after receipt of inquiry report.
8.6. By referring the amended Rule 15 of CCS (CCA) Rules, Ld. Counsel for the applicant would argue that without supplying the copy of the said UPSC advice, the DA had passed the impugned order and thereby had violated the provision of Rule 15 of CCS (CCA) Rules and principles of natural justice. Whereas Ld. Counsel for the respondents denied the said submissions by relying upon the CCS (CCA) Rules prevailing at that time, and contends that the respondents have acted in accordance with rules in force i.e. in the year 2012. According to the respondents, the rule regarding furnishing of UPSC advice to the Government servant/CO before imposition of penalty has been incorporated in sub-clause 3 of Rule 15 vide DoP&T notification dated 31.10.2014 published as GSR No. 769 (e) in the Gazette of India on 38 OA 1325/2013 31.10.2014 (Annexure NA - 4 of additional reply submitted by the respondents refer) whereas the disciplinary proceedings in the instant case were concluded in 2012. Therefore, it is stated by the respondents that in case of the applicant the DA had followed the provision of Rule 15 which was in force at the relevant time. Thus, the impugned order has been passed by following the procedure laid down under the applicable rules and there is no lacunae in the decision-making process.
8.7. On closer scrutiny it reveals that the disciplinary proceedings against the applicant was concluded in 2012. To appreciate the submission of the Learned Counsels for the parties, we deem it appropriate to refer Rule 15 of CCS (CCA) Rules in force at the relevant time i.e. in the year 2012-2013 (before amendment) which reads as under:-
"15(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 records its findings before proceedings further in the matter as specified in sub-rules (3) and (4).] 39 OA 1325/2013 (3) If the Disciplinary Authority having regard to its finding 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."
8.8. It is apt to mention that while the applicant was discharging his duties as a Class I Officer, disciplinary proceeding has been instituted against him and before imposition of any penalty, consultation with the UPSC was mandatory in terms of provision of Rule 15(3) & (4) of the CCS (CCA) Rules as prevalent at the relevant time.
In the present case, undisputedly, the DA had consulted the Commission ie; UPSC, in terms of provision of Rule 15(3) & (4) of the CCS (CCA) Rules as prevalent at the relevant time by forwarding the record of the inquiry along with the representation of CO on the Disagreement Note to the 40 OA 1325/2013 UPSC for its advice. In response, the UPSC had tendered its advice vide communication dated 09.04.2013 wherein by assigning reason for their agreement with the disagreement note of the DA, the UPSC concurred that charges levelled against the applicant stands established and opined that the charges levelled against the applicant constitute grave misconduct on his part and had also opined that the ends of justice would be met if the penalty of withholding of 10% of the monthly pension otherwise admissible to the CO for a period of two years is imposed on him.
On receipt of advice of the UPSC, the DA by assigning cogent reason held that the charges levelled against the applicant stands proved and had decided to impose major penalty upon the applicant in terms of provision of Rule 15(4) vide order dated 12.06.2013.
8.9. At this stage, it is also apt to mention that in the year 2012-2013 as per the existing provision of Rule 15 of the CCS (CCA) Rules, 1965 ((before amendment of CCS (CCA) Rules) there was no statutory obligation on Disciplinary Authority to supply copy of the advice of the Commission i.e. UPSC before imposition of penalty.
Therefore, in our considered opinion, the submission of the applicant that before imposition of penalty the respondents have not supplied the copy of the advice of the UPSC and thereby DA has violated the rule 15 of CCS (CCA) Rules, is not tenable in terms of mandate of Rule 15(4) as same was in force at the relevant point of time.
9. In light of aforesaid factual matrix, we are of the considered opinion that the DA had followed the provision of Rule 15 of CCS (CCA) Rules, 1965 as prevailing at the relevant time i.e. in the year 2012 (before amendment of the said Rule) and had also followed the instructions of CVC contained in Circular dated 28.09.2000. 41 OA 1325/2013 Further, no lapse in this regard can be assumed against the DA while imposing penalty upon the applicant.
10. At this stage, it is apt to mention that, the respondents have placed on record copy of the order passed in O.A. /100/3597/2014 filed by one Mr. V.K. Chowdhury, against punishment awarded upon him by the DA vide order dated 29.08.2019.
On perusal of the said order, it transpires that said Mr. V.K. Chowdhury (who was working as Dy. GM , OEFHZ along with the applicant herein at the relevant time) was also subjected to disciplinary proceeding vide separate charge memorandum dated 28.04.2008 for the charges including the one that he was instrumental in placing as many as 27 development orders in violation of the prescribed procedure, more particularly, Para 28.4.4 of the OFB Material Management, 1993 during 2004-2005.
Further, it is noticed that in the said case on conclusion of departmental inquiry, the IO in his report recorded the finding to the effect that the charges were not proved against the said Mr. Chowdhury. However, the DA disagreed with the said finding of IO and after receipt of the 2nd stage Advice of CVC dated 23.05.2012 (as reproduced above), the DA had supplied the copy of his disagreement note along with 2nd stage CVC Advice referred hereinabove to the said Mr. Chowdhury for his response to it. On receipt of his representation, the DA had held that the charges levelled against him stands proved and had awarded punishment vide order dated 12.06.2013 of reduction of pay scales by two stages, to be in force for a period of two years with cumulative effect.
By rejecting the submission of the applicant (i.e. Mr. V.K. Chowdhury) that he was only the recommending authority and had not committed any misconduct as well as the submission that the DA had erroneously disagreed 42 OA 1325/2013 with the finding of the IO, the submission of applicability of the ratio laid down in the case of Roop Singh Negi v. Punjab National Bank & ors. (Civil Appeal No. 7431 of 2008) and other judgments referred therein, the Principal Bench of this Tribunal in the said order held that the record disclosed that not only the applicant but also the General Manager were subjected to disciplinary proceedings and the punishment of cut in pension was imposed against the General Manager (it is apt to mention here that the applicant herein was in fact working as General Manager at the material time and he was awarded punishment of 10% cut in pension).
Accordingly, it was held by the Principal Bench that the punishment imposed against him cannot be said to be disproportionate if the nature of charges, framed against him are taken into account. Thus the said O.A. was dismissed by upholding the punishment awarded against Mr. Chowdhury. 10.1. Ld. Counsel for the applicant would argue that said Mr. V.K. Chowdhury did not dispute the documents relied upon by the DA as observed by the Principal Bench of this Tribunal in the said order dated 29.08.2019 whereas in the present case, the applicant has disputed the documents relied upon by the DA and the said order is not applicable to the case of the applicant.
In our considered view the aforesaid submission of Ld. Counsel for the applicant is not acceptable because the charges levelled against said V.K. Chowdhury (supra)and the applicant herein are identical and the applicant and the said V.K. Chowdhury are similarly circumstanced as far as the matter under consideration is concerned. The charges were based on common documents i.e. office records and the charges were denied by said Mr. Chowdhury on the same grounds as were taken by the applicant in his defence. The DA by referring to the evidence which surfaced during the 43 OA 1325/2013 inquiry, particularly the relied upon documents which were attached to the charge memorandum found that the charges levelled against the applicant stand proved. The applicant herein by referring to another set of documents attempted to justify his act which was not accepted by the DA by assigning detailed reasons in his disagreement note. Failure to comply with the procedure laid down in the Para 28.4.4 of the OFB Material Manual. 1993 while approving placement of 24 development orders has been held to be proved by the DA solely based on the RUDs. Contrary to the said documents, there is no material to nullify the mandate of said Manual. The DA held that the CO i.e. applicant herein arbitrarily and systematically disregarded the condition stipulated in Para 28.4.4 of the said Manual. Therefore, the contention of the applicant that he had disputed the condition stipulated in 28.4.4 of the Manual whereas Mr. Chowdhury had not disputed the same does not come to his aid.
11. Ld. Counsel would also argue that the applicant had not committed any misconduct by splitting the order. The Disciplinary Authority has given detailed reasons in his disagreement note for construing the act of the applicant as a misconduct.
11.1. The applicant had also raised the point that post-retirement action can be taken under Rule 9 of the CCS (Pension) Rules, 1972, however, it is hedged by the condition that government servant should be found guilty of "grave misconduct or negligence" during the period of service, but in his case he was not found guilty of any fraud, misappropriation or wilful negligence, hence the allegation cannot constitute grave misconduct. In this regard, we are in agreement with the submission of respondents that there is a violation of provisioning procedure, irregularity in vendor selection and arbitrariness in 44 OA 1325/2013 the manner the CEO had acted by splitting of the requirement placing supply orders arbitrarily as development orders. His said acts of omission and commission exhibited lack of integrity and devotion to duty. 11.2. It is stated that the imputation of charge shows that the misconduct on the part of the applicant was grave in nature and the respondents had rightly relied upon the instructions contained in DoP&T's O.M. No. 28027/3/87Estt.(A) dated 29.06.1990 to substantiate the submission that the disciplinary proceedings pertaining to serious or grave act of misconduct / negligence committed by the Government servant can be continued or instituted in terms of Rule 9 of CCS (Pension) Rules, 1972 even if no pecuniary loss was caused to the Government. Even in the absence of any pecuniary loss, the pension of pensioner can be withheld or withdrawn in whole or part, after following the prescribed procedure for an act of misconduct/negligence committed while in service.
11.3. Therefore, the submission of the applicant is not acceptable that the DA had erroneously imposed the punishment of major penalty by treating the act of the applicant as grave misconduct. Considering the facts of the case, the judgment relied upon by the Ld. Counsel for the applicant that in absence of any allegation of fraud or misappropriation, the DA ought not to have construed that the applicant has committed grave misconduct also does not come to his rescue.
11.4. Ld. Counsel for the applicant has relied upon several judgments to substantiate his submission that there is no misconduct on the part of the applicant and that the DA did not follow the principle of natural justice. There cannot be any dispute with the ratio laid down in the said judgments, such as 45 OA 1325/2013 in the order passed by Principal Bench in the case of G.P. Sewalia v. Union of India & another; Prem Chand v. Govt. of NTC of Delhi reported in (2007) 2 SCC (L&S) 58; UOI & ors. v. Kamal Kishore Dhawan & another (supra) ; order passed by Principal Bench in the case of M.L. Sharma v. UOI & ors. (supra) & other judgments in this regard. However, these orders and judgements are not applicable in the instant case in view of the facts and circumstances of the present case.
12. At this stage, it is required to mention that by following the provisions of Rule 15 of CCS (CCA) Rules, and on receipt of the UPSC advice, the DA i.e. the Hon'ble President in terms of Rule 9 of CCS (Pension) Rules, 1972 after considering the charge-memorandum, inquiry report, disagreement memo, the representation of the applicant, UPSC advice and also all other records/aspect relevant to the case has concluded vide impugned order dated 22.04.2013 (Annexure A/9), that for the reasons as stated in the UPSC advice, all charges are proved against the applicant and they constitute grave misconduct on his part. Accordingly, by agreeing with the UPSC advice, the DA had decided that ends of justice would be met in this case, if, a penalty of "withholding 10% (ten percent) of the monthly pension otherwise admissible to him for a period of two years" is imposed on the applicant. Further, the DA had ordered that Gratuity may be released, if not required in any other case.
13. It is settled principle of law that in departmental proceedings, the Disciplinary Authority is the sole judge of facts. Once findings of fact, based on appreciation of evidence are recorded by the Disciplinary Authority & Appellate Authority, normally the Court/Tribunal may not interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally 46 OA 1325/2013 untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court/Tribunal, since the High Court/Tribunal does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review. The Tribunal cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities.
13.1. At this stage, it would suffice to mention the Hon'ble Apex Court in the case of State of Bihar and others Vs. Phulpari Kumari, (2020) 2 SCC 130 held that "Inteference with order passed pursuant to departmental inquiry can only be in case of "no-evidence" and had also held that "sufficiency of evidence not within realm of judicial review, the standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal Court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. "
13.2. The Three Judge Bench in the case of Praveen Kumar v. UOI & ors. (2020) 9 SCC 471 the Hon'ble Apex Court held that, " .......... It would be gainsay that Judicial review is an evaluation of the decision making process and not the merit of the decision itself. Judicial Review seek to ensure fairness in treatment and not fairness of conclusion."
13.3. It is also profitable to refer the law laid by the Hon'ble Apex Court in the case of The State of Karnataka & anr. vs. N. Gangarj reported in (2020) 3 47 OA 1325/2013 SCC 423 wherein by referring to a catena of judgments on the point of scope of judicial review in the matter of disciplinary proceeding it has been held that:
".... We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse."
Further, in the said judgment it has been held that:
".... The discrepancies in the evidence will not make it a case of no evidence. The enquiry officer had appreciated the evidence and returned a finding that the respondent is guilty of misconduct.
Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the finding of facts recorded by reappreciating evidence as if the courts are the appellate authority."
13.4. Further, the Hon'ble Apex Court in the State of Karnataka & Anr. vs. Umesh (2022) 6 SCC 563: (2022) 2 SCC (L&S) 321 has held that:-
"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
14. In the present case it is noticed that after granting due opportunity to the charged officer in terms of Rule 14 & 15 of the CCS (CCA) Rules, which was in force at the relevant time as well as by following the instructions contained in the CVC circular prevailing at the relevant time, the Disciplinary Authority came to the conclusion that the charges levelled against the applicant stand proved and awarded the punishment in the light of gravity of proved charges against the applicant herein. In the present case we do not find any procedural lapse in conducting the departmental proceeding against the applicant. We, therefore are of the opinion that there is no legal infirmity in the decision making process and it cannot be said that the impugned decision is based on 48 OA 1325/2013 no evidence. Suffice it to say that, the punishment awarded cannot be said to be disproportionate to the gravity of charge. Hence, no interference is called for in light of dictum laid down by the Hon'ble Apex Court (supra).
15. In view of our above discussion and guided by well settled position in law on the issue, we come to the considered conclusion that the Applicant has not made out a case calling for our intervention.
16. The OA lacks merit. Accordingly, the same is dismissed. No order as to costs.
(Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl/sp