Central Administrative Tribunal - Delhi
Shri Virendra Singh Khaira vs Union Of India on 15 February, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA No.1860/2011
Reserved on : 31.01.2012
Pronounced on : 15.02.2012
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Shri Virendra Singh Khaira
S/o Sh. Balbir Singh
R/o N-1104, Jaipuria Sunrise Greens,
Plot No.12A, Ahinsha Khand,
Indirapuram, Ghaziabad (UP). . Applicant.
(By Advocates : Shri Girish C. Jha with Sh. A. K. Verma)
Versus
1. Union of India
Through the Secretary
Ministry of Road Transport and Highways,
1, Parliament Street,
New Delhi 110 001.
2. Chairman
National Highways Authority of India
Ministry of Road Transport and Highways,
G-5 & 6, Sector-10,
Dwarka,
New Delhi 110 075.
3. Chief Vigilance Officer
National Highways Authority of India
Ministry of Road Transport and Highways,
G-5 & 6, Sector-10,
Dwarka,
New Delhi 110 075.
4. Chief Vigilance Commissioner
Satarkta Bhawan,
Block-A, GPO Complex,
INA, New Delhi 110 023.
5. Union Public Service Commission
Through its Secretary
Dholpur House,
Shahjahan Road,
New Delhi-01. Respondents.
(By Advocate : Shri H. K. Gangwani)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
Shri Virendra Singh Khaira working as Executive Engineer (Civil), Ministry of Road, Transport and Highways, the applicant herein, is aggrieved by the impugned order dated 20.04.2011 (Annexure-A) by which he was imposed the penalty of withholding of one increment without cumulative effect by the Disciplinary Authority. He has also challenged the disciplinary proceedings initiated against him vide Memorandum dated 14.07.2008 (Annexure-H). Consequently, he has prayed to quash the said impugned Memorandum and penalty order with prayer to direct the respondents to grant him promotion to the post of Superintending Engineer (SE) w.e.f. 9.02.2004 with consequential benefits.
2. Brief facts of the case would reveal that the applicant who joined as Assistant Executive Engineer having been successful in the Indian Engineering Service Examination of 1993 was promoted as Executive Engineer (EE) in 1999 and was transferred on deputation to the National Highways Authority of India (NHAI) on 15.10.2004. While working in the said position as Deputy General Manager (Technical), a complaint dated 30.05.2007 was received from North Eastern Engineers against the official of NHAI regarding violation of the CVC Guidelines in award of work of shifting of Electrical Pole/Lines on the proposed four lane alignment of NH-37 (KM-165-184) Khanapara to Sonapur. The said complaint was forwarded by the 4th respondent to 3rd respondent for investigation on two specific allegations from vigilance angle. Thereafter, the applicant was served with a letter dated 13.09.2007 by the 3rd respondent calling for certain clarifications on the queries in the questionnaire (Annexure-B colly). He submitted his reply. It is the case of the applicant that in the meantime, a Panel was prepared on 20.12.2007 (Annexure-C) for promotion of the EEs to SE rank by 1st respondent in which the applicants name appeared at Sl. No.13. The said Panel was sent for vigilance clearance and the applicants name was also cleared from the vigilance angle. But, the investigation on the said complaint was completed on 14.01.2008 in which the accountability for irregularity in the award of work was fixed upon four officials including the applicant. The 4th respondent was advised by the CVC for initiation of minor penalty proceedings against all the four officials including the applicant. On 22.05.2008 Departmental promotion Committee (DPC) was held and all 14 EEs including the applicant were recommended for promotion to the rank of SE. In June/July, 2008, the competent authority approved the Panel of 13 (excluding Shri Rahul Gupta) in which applicants name figured for promotion to the post of SE. It is the applicants case that though Minister for Road Transport and Highways approved the Panel in June and again in July 2008, 1st respondent withheld promotion for more than a month. However, on 14.07.2008, the applicant received a Memorandum of Charge from the second respondent along with statement of imputation of misconduct and it was proposed to take disciplinary action against him under Regulation 13 and 17 of NHAI (Conduct, Discipline and Appeal) Regulations, 1997 read with Rule 16 of the CCS (CCA), Rules 1965. The said Charge memo is at Annexure-H which inter alia indicated that during the year 2006-2007 while he was working as DGM (Tech) with the NHAI, he, while processing the case pertaining to the work of procurement, erection and shifting of electoral poles/lines on the proposed four lane alignment of N.H.-37 in Assam under the PIU (Project Implementation Unit), Guwahati along with other works of similar nature in respect of PIU Lumding and PIU-Silchar in file no.NHAI/Utility/EW-1/2006, had made a number of notes on the file on different occasions to the superior authorities in misleading manner bringing out half and wrong facts selectively with malafide intention to see that above mentioned work be awarded to M/s Webel Mediatronics Ltd, thereby leading/inducing superior officers to incorrect decisions for award of work to be said company in violation of CVCs instructions pertaining to award of contract on back to back tie-up by the PSUs and award of work on nomination basis in violation of circular no.15/05/06 (No.005/CRD/90) dated 09/05/2006. It was further alleged in the said memorandum that the said three works were awarded to M/S Webel Mediatronics Ltd. On the basis of wrong representation of the facts pertaining to the contract to the superior officers with intention to benefit the said company whereas the contracts for the said three works were to be awarded to the lowest bidder who could do the works in the said price as per the specifications and the set standard of the Respondent No.2. As the said fact of charge memo against the applicant was brought to the notice of 1st respondent on 28.07.2008, the recommendation of the DPC in respect of the applicant duly approved by the competent authority was kept in a sealed cover. All other 12 EEs were promoted on 31.07.2008 (Annexure-I) except the applicant. It is averred that as per CVC guidelines dated 03.03.1999 (Annexure-K) the final order in case of minor penalty proceedings within a period of two months from the date of receipt of defence statement. He opposed the charges in his representation dated 14.08.2008 (Annexure-J). Subsequently, he sent three more representations dated 19.11.2008, 5.12.2008 and 26.12.2008 (Annexure-L colly) for disposal of his case and to exonerate him from all the charges, but the respondents failed to redress his grievances. As he was repatriated to his parent cadre, the charge memo vis a vis the defence statement furnished by the applicant was analysed by the 3rd respondent but the final orders on the charges could not be passed by NHAI. On receipt of all the papers from the NHAI, the 1st respondent sought advice of CVC and was advised to impose minor penalty vide CVC Memorandum dated 20.07.2009. The Disciplinary Authority after considering all these decided to issue him warning but sought CVC advice to reconsider the earlier advice. The CVC reiterated its stand. This tentative decision was taken by the Disciplinary Authority to impose the minor penalty of withholding of one increment without cumulative effect and communicated to UPSC for consultation, which was agreed to by UPSC. Agreeing with the advice of the CVC and UPSC, the competent authority imposed the said penalty. As the stay order dated 10.12.2009 of the Tribunal in OA No.3210/2009 was in operation on the date of passing such penalty order, the order so passed by 1st respondent was withdrawn on 18.05.2010. However, the said penalty was again imposed on the applicant vide order dated 20.04.2011 (Annexure-A). Feeling aggrieved by the said Presidential Order, the applicant is before the Tribunal in the instant OA.
3. Shri Girish C. Jha assisted by Shri A. K. Verma, learned counsel appearing on behalf of the applicant would anchor the arguments on the fact that the imputation of misconduct does not reveal any financial loss to NHAI or pecuniary benefits for the applicant. On the other hand, action taken by the applicant has saved financially the respondents. Further, it is contended that award of contract is a collective decision for which one person cannot be held responsible. The main submission of the applicants counsel was that the perusal of the impugned order would reveal that despite decision of the competent authority to close the disciplinary case against the applicant, due to the advice tendered by the CVC and the UPSC, the penalty of withholding of one increment without cumulative effect was imposed on him without examination of applicants defence. This, therefore, reflects non application of mind by the Disciplinary Authority. Yet another angle was brought in during the final argument that principles of natural justice have been violated as the copy of the UPSC report was not furnished to the applicant before passing a final order and the applicant had no opportunity to defend himself properly against the advice rendered by the UPSC. He, therefore, urges that the OA should be allowed with appropriate directions to the respondents to consider opening of the sealed cover to promote the applicant with effect from the date his juniors have been promoted from the Panel to the rank of SE.
4. On the other hand, the respondents on receipt of notice from the Tribunal, have entered appearance and filed reply affidavit on 20.09.2011 through Shri H. K. Gangwani, learned counsel for the respondents. Controverting the above contentions of the applicants counsel, Shri Gangwani contends that there has been due application of mind not only by the officers of the second respondent but also officers of other agencies and respondents. Based on the recommendation of the CVC, a proposal was received for initiating major penalty proceedings against the applicant. Keeping in view the circumstances of the case and peculiar nature of the applicants involvement, two senior officers who were supervising his work and who have not been issued charge sheet by the respective State Governments, a proposal was submitted to the Minister in Charge of Road Transport and Highways to close the case. However, the same was not agreed to as the CVC suggested to initiate disciplinary proceedings. As advised by the CVC, the charge memo was issued against the applicant. As the applicant was facing a disciplinary case even though it was minor penalty proceeding, as per the DOP&T Guidelines dated 14.09.1992, the name of the applicant was put in sealed cover and as he was imposed penalty of withholding of one increment without cumulative effect, the said sealed cover was not opened. Therefore, the recommendation of the DPC in respect of the applicant remained unopened. The applicants case would be considered in the next DPC meetings for considering promotion to the rank of SE. His contention is that principles of natural justice and the proportionality angle have been fully looked into by the Disciplinary Authority while passing the said order. The views of the UPSC have been received and the said advice has been enclosed as part of the orders of the Disciplinary Authority and communicated to the applicant. In view of the above contentions, he submits that the OA is liable to be dismissed and the applicant would not be entitled for any promotion to the grade of SE, so long the punishment inflicted on him continued.
5. Having heard the contentions of the rival parties, with their assistance we perused the pleadings.
6. Two major legal issues which come up for our consideration are; (i) the orders of the Disciplinary Authority suffers from non application of mind as the views of the CVC and UPSC have prevailed over the conclusions arrived at by the Disciplinary Authority and (ii) the principles of natural justice have been violated as the applicant did not have opportunity to defend himself against the advice of the UPSC tendered in the disciplinary case.
7. At this stage, we may refer to first issue i..e whether the Disciplinary Authority has not taken his independent decision but has been influenced by the advice tendered by CVC? The order dated 20.04.2011 which has inter alia mentioned the background of the case and has brought out the fact that after considering the defence statement of the applicant, advice of the CVC was sought The CVC vide its Memorandum dated 20.07.2009 advised imposition of suitable minor penalty on the applicant. Consequently, the Disciplinary Authority desired to close the case against the applicant by issuing him a warning but views of the CVC were again requested to reconsider the advice vide Ministrys letter dated 31.08.2009 to which the CVCs reiterated its earlier stand in the OM dated 6.10.2009. The CVC plays the advisory role in the matters of disciplinary proceedings. It is the quasi judicial authority, and the Disciplinary Authority in exercise of his quasi judicial function the views of the CVC was considered by him. Only in Vigilance cases and that too major penalty proceedings the 2nd stage advice is needed. In the instant case, CVC letter dated 20.07.2009 was the advice which had not been agreed to. Once the Disciplinary Authority has disagreed with the advice of the CVC to impose penalty even if the minor penalty, there was no need for sending the request to CVC for reconsideration. By re-submitting the case to CVC, the quasi judicial role of the Disciplinary Authority has been diluted by the CVC.
8. We may refer to the letter dated 31.08.2009 available at the Anneuxre-R8 which extracted below:
Government of India Ministry of Road Transport & Highways (Vigilance Section) File No.C-14011/1/2008-Vig. (Pt) the 31st August, 2009 OFFICE MEMORANDUM Subject : Complaint against officials of NHAI regarding violation of CVC guideline award of electric shifting works on the proposed 4 lane alignment of NH-37 from Km 164 to Km 183-minor penalty proceedings against Shri Virendra Kumar, the then Dy. General Manager (Tech), National Highways Authority of India and presently Executive Engineer, M/o Road Transport & Highways-Reconsideration of advice given by CVC.
Reference Central Vigilance Commissions OM No.007/SHT/033-49618, dated 20th July, 2009, whereby the Commission had not agreed to the proposal of the Ministry of Road Transport & Highways for reconsideration of its advice for minor penalty proceedings against Shri Virendra Kumar, the then Deputy General Manger (Tech) presently Executive Engineer in the Headquarters.
2. In this connection it may be mentioned that consequent upon receipt to the above OM dated 20.07.2009 of CVC, the file had been put up to Honble Minister (RT&H), i.e. the disciplinary authority, who is of the view that the proposal may be sent to CVC as this is a fit case for reconsideration.
3. In this connection, the reply dated 14.8.2009 of Shri Veerendra Kumar to the Charge Memorandum had been examined in this Ministry in consultation with NHAI. After examining the details of the allegation leveled against the officer, his reply, comments/recommendations of the CVO of NHAI, CVO of Ministry of RT & H and disciplinary authority in this Ministry had already been furnished to CVC in the format prescribed vide this Ministrys letter of even number dated 13th July, 2009.
4. The following facts relating to the case are reiterated for reconsideration of the advice of CVC tendered vide OM dated 30.1.2008 and 20.07.2009:
(i) The case relates to a complaint received from CVC regarding the award of work procurement, erection and shifting of electric poles/lines in the proposal of four laning alignment of NH-37 from Km 164 to 183 Km in Assam, PIU, Guwahati to M/s Webel Mediatronics Ltd although the complainant 9M/s North Eastern Engineers) was LI in the tendering process and the bid was competitive within the estimates by NHAI. Accordingly, the investigation report along with the decision of disciplinary proceedings against Shri Veerendra Kumar the then Dy. GM, NHAI on deputation basis and also against other officials of NHAI was forwarded by NHAI to CVC for seeking their advice. CVC vide their letter dated 30.1.2008 advised initiation of minor penalty proceedings against Shri Veerendra Kumar and other officials. Accordingly, a Charge Memorandum dated 14.7.2008 had been served on Shri Veerendra Kumar, the then Dy. GM by NHAI. He submitted his reply vide letter dated 14.8.2008 to NHAI. In the meantime, Shri Verendra Kumar was repatriated to this Ministry w.e.f. 24.11.2008 and since ceased administrative control. Consequently, CVO, NHAI vide their letter dated 13th February, 2009 had forwarded the disciplinary case to this Ministry for necessary action.
(ii) The progress of road construction works were hampered by encumbrances of electric poles and lines in Assam. It is important to note that total value of civil works already awarded under NHDP Phase II was about Rs.4000 crores. However, due to the above hudles, the road projects were getting costlier @10% annually due to __________ alone. Therefore, faster and reliable removal of electrical encumbrances was the need of hour.
(iii) It is a fact that these types of works were generally executed through the local electric distribution companies (Stat Government PSUs) on normination basis by NHAI. More importantly the concerned local electric utility company had shown their inability to handle the electrical pole and lines shifting work in Assam speedily and requested NHAI to get the work done by themselves.
(iv) Based on earlier experience of shifting electric poles and lines for Highway Projects located in West Bengal through M/s Webel Mediatronics Limited (1 100% West Bengal Government undertaking) reliably and satisfactorily, the utility shifting work was awarded to M/s Webel for utility shifting work pertaining to Highways projects under the jurisdiction of PIU, Bongaigon, Naagon by the NHAI.
(v) On similar liness the shifting works pertaining to three PIUs, Guwahati, Lumding and Silchar were proposed to be awarded to M/s Webel for approval of Chairman, NHAI. Chairman, NHAI suggested going for open tenders. Accordingly, the open tenders were floated by respective PIUs.
(vi) The rate of M/s Webel was substantially below compared to other tenders. Further the same was about three crores below than the estimated value. Looking into the huge savings of Government money and satisfactory completion of earlier similar works by M/s Webel, a view was again taken by the NHAI to award the work to them canceling the open tender process. This proposal was not only approved by CGM (T) but also the then Member (T) and finally approved by Chairman, NHAI. Thus it was not the decision of Shri Veerendra Kumar, EE alone, but the combined decision of NHAIs Management. Therefore, the blame should not go to Shri Veerendra Kumar alone.
(vii) In the North East of India no good contractor was able who could do this work and looking at the past performance of M/s Webel the present work was given to them. In that situation if State Undertakings based on the recommendation of Shri Veerendra Kumar, EE and that too at lower price, carried out the work, which itself is an achievement.
5. In view of the circumstances mentioned above and decision of the Honble Minister (RT & H), i.e. the disciplinary authority, CVC is requested to reconsider their advice conveyed vide their OM dated 28th July, 2009.
6. As the OA No.533/2008 and contempt Petition No.209/2009 filed by Shri Veerendra Kumar, EE (Civil) is coming up for hearing on 22nd September, 2009 before the Central Administrative Tribunal, the matter may be given top priority.
-sd-
(SAROJ KUMAR DASH) Joint Secretary & Chief Vigilance Officer Tel: 23717294 Central Vigilance Commission (Kind Attn: Shri Ranavir Singh, Director) Satarkta Bhawan, Block A GPO Complex, INA, New Delhi 110 0232.
9. The above letter clearly indicates the decision of the Disciplinary Authority was to close the case against the applicant. But ultimately the CBVC advice influenced him to change the decision. This, in our considered view, is non-application of mind on the part of Disciplinary Authority. The second consultation cannot be converted as a part of the decision making process whereby the conclusion already arrived at by the Disciplinary Authority after the first consultation with CVC, was reversed. Thus, the 1st principal ground of non-application of mind and getting influenced by the CVC advice in passing the penalty order goes in favour of the applicant. The penalty order, therefore, suffers from non-application of mind and hence illegal.
10. In support of our above considered view, we refer to the judgment in Union of India Versus Alok Kumar [2010-5-SCC-349] where Honble Apex Court considered the relevance or otherwise of CVC advice in deciding a disciplinary case by the Disciplinary Authority. The Apex Court cited its earlier judgment of a three judges Bench in Sunil Kumar Banerjee Versus State of West Bengal and Others [1980-3-SCC-304] where it was observed that we think that if the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commission... Conversely, the disciplinary authority having consulted the CVC and disagreed with his advice, if further consultation for the second time is sought for reconsideration and thereafter disciplinary authority goes by the advice of the CVC, such decision cannot termed as independent but will be tainted decision influenced by the CVC advice. This is the position in the instant case.
11. Now we may advert to the second issue i.e. whether non supply of UPSC advise/report prior to the issue of penalty order is violative of the principles of natural justice? The Disciplinary Authority without considering the applicants defence statement came to conclusion that minor penalty of withholding of one increment without cumulative effect may be imposed upon him and in consultation with UPSC the said penalty was imposed on him. He was not supplied a copy of the UPSC report prior to the issue of penalty order. On the contrary, such a report was enclosed to the punishment order. Though the order indicates that there was an independent examination of the case, the order does not disclose how the defence stand was considered. The penalty order does not reveal such analysis. It is appropriate for us to take the extract of the pertinent paragraphs of the penalty order, which thus reads:-
9. AND WHEREAS Shri Khaira failed to bring any new point in his reply dated 21.09.2010 to the above mentioned OM.
10. AND WHEREAS the Disciplinary Authority, after independent examination of the case and taking into account all other facts and circumstances relevant to the case in their totality, has come to the conclusion that the said Shri Virendra Singh Khaira had committed irregularities in the award of tender for the work of procurement, erection and shifting of electric poles/lines on the proposed 4 lane alignment of NH-37 from Km 164 to Km 183 in Assam and some other works and the charge stands fully proved against Shri Virendra Singh Khaira.
11. AND, THEREFORE, the Disciplinary Authority, after taking into consideration the gravity of the charges, as has been established against the said Shri Virendra Singh Khaira, agrees with the advice of Union Public Service Commission to impose the penalty of withholding of one increment without cumulative effect on the said Shri Virendra Singh Khaira.
12. We may refer to the legal issue of non supply of the UPSC advice/report dated 23.02.2010 on the matters of disciplinary case and the said advice has been enclosed admittedly along with the impugned penalty order. It is trite law that when the Disciplinary Authority relies on the advice of UPSC, a copy of the said report needs to be supplied to the delinquent official; receive the representation thereon and on consideration of all the facts decide the matter as to whether the delinquent official deserves to be exonerated or imposed penalty. In this context, it is well settled principles of natural justice that if any material is to be relied upon in a disciplinary case, a copy of the same must be given in advance to the delinquent officer in order to provide him an opportunity to rebut. In the present case, the Disciplinary Authority has relied heavily on the report of UPSC but a copy of the said report was not made available to the applicant in advance. Hence, such an omission is violation of the principles of natural justice and the penalty order is liable to be quashed. We draw our strength from the latest judgment of Honble Supreme Court in the case of Union of India & Others versus S. K. Kapoor [2011 STPL (Web) 277 SC] wherein the following law was laid:-
10. In the aforesaid decision, it has been observed in para 25 that the provisions of Article 320 (3) (c) of the Constitution of India are not mandatory. We are of the opinion that although Article 320 (3) (c) is not mandatory, if the authorities do consult the Union Public Service Commission and reply on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T. V. Patels case is clearly distinguishable.
11. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employees, otherwise, there will be violation of the principles of natural justice.
12. This is also the view taken by this Court in the case of S. N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
13. It may be noted that the decision in S. N. Narulas case (supra) was prior to the decision in T. V. Patels case (supra). It is well settled that if a subsequent co-ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of the co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S. N. Narulas case (supra) was not noticed in T. V. Patels case (supra), the latter decision is a judgment per incuriam. The decision in S. N. Narulas case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
13. Our careful perusal of the UPSCs advice reveals that it has given very extensive analytical report which has influenced the disciplinary authority to impose the punishment against the applicant. In our considered opinion, by non-supplying of the UPSC report and advice to the applicant has prejudiced him as he had no opportunity to properly defend himself against such advice before the Disciplinary Authority could come to a final conclusion in the disciplinary case against him. In these circumstances, the impugned order suffers from the violation of principles of natural justice and, therefore, deserves to be set aside.
14. In respect of the binding nature of the UPSC advice, this Tribunal has decided the case in Dinesh Kumar Patnaik versus Union of India and Others in OA No.1955/2006 on 16.05.2007 (where one of us namely Justice V. K. Bali, Chairman was the author of the judgment) the Tribunal came to the considered conclusion that consultation with the Union Public Service Commission is necessary but the said consultation does not extend to make the advise of the Commission binding on the Government and the said judgment of this Tribunal placed reliance on the judgment of Honble Supreme Court in the State of UP versus Manbodhan Lal Srivastava (AIR 1987 SC 912) to observe that the requirement of the consultation of the Commission does not extend to make the advise of the Commission on those matters binding on the Government. We are guided by the above dicta of the Honble Apex Court and reiterated by this Tribunal in deciding the issue in the instant OA.
15. Further, it is worthwhile to note that M/s WML was a Public Sector Undertaking fully owned by the West Bengal Government. By entrusting the works to M/s WML, it is averred by the applicant that there has been net saving of Rs.394.25 lakh. In response to the said averment of the applicant, the respondents have stated that the case of the applicant was examined in detail by the office of Respondent No.1 and a proposal for reconsideration of the advice of CVC for giving warning instead of minor penalty on the applicant was sent to CVC with the approval of the disciplinary authority, i.e. Minister (RT & H) vide OM dated 13th July, 2009 (Annexure-R6). CVC vide Memorandum dated 20.07.2009 did not agree with the views of this Ministry (Annexure-R7). The file was again put up to the Honble Minister (RT&H) with the above position, who remarked that it is a fit case for reconsideration and the proposal be sent to CVC again mentioning the savings of NHAI and the combined decision of the NHAI Management. It must be noted that the Disciplinary Authority having decided not to impose any minor penalty on the applicant, has been swayed away by the second advice of CVC. May be the Disciplinary Authority wanted CVC to agree with his view while sending the proposal for reconsideration. We note that a minor penalty case, Disciplinary Authority having agreed to issue a simple warning not any penalty and having done so but later on having agreed with CVCs further advice, the Disciplinary Authority changed his mind, which has not shown in the order why did he agree with the second suggestion/advice of CVC to impose the minor penalty on the applicant. In our view, the Disciplinary Authority committed an error apparent seeking further advice of the CVC.
16. Having considered two important legal issues along with other issues, as stated above, the totality of facts and circumstances of the case, we come to the considered conclusion that the orders of the Disciplinary Authority suffers from non application of mind as well as from the non supply of UPSC report to the applicant before passing of the penalty order. We, therefore, quash and set aside impugned order dated 20.04.2011. Normally, we would have remanded the case back to the Disciplinary Authority, but this is a typical case where the Disciplinary Authority did not want to impose any penalty as is revealed from the letter submitted for reconsideration of the earlier views tendered by CVC and stated therein that the said alleged misconduct was part of the collective decision, we would direct the respondents to close the disciplinary case against the applicant. Resultantly, the applicant getting exonerated in the disciplinary case, the respondents would be duty bound to open the sealed cover in which the recommendations of the DPC was put for considering the applicants promotion to the post of SE. In case he is found fit to be promoted he shall be entitled to get promotion to the rank of SE w.e.f. the date from which his immediate junior was promoted to the said rank. It is made clear that in case he gets promoted from that date he would be entitled to get his seniority and notional increments but would not be entitled to get back wages as he was facing the said disciplinary case.
17. In terms of our above orders and directions, the OA having merits is allowed. However, there shall be no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/