Central Administrative Tribunal - Delhi
Sarvesh Kaushal vs Union Of India on 28 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.807/2008 This the 28th day of January, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Sarvesh Kaushal, R/O House No.16, Sector 7A, Chandigarh. Applicant ( By Shri P. P. Khurana, Sr. Advocate and with him Ms. Seema Pandey and Shri Virender Singh, Advocates ) Versus 1. Union of India, Ministry of Personnel, Department of Personnel & Training, New Delhi through its Secretary. 2. Ministry of Consumer Affairs & Public Distribution, Department of Public Distribution, Government of India, Krishi Bhawan, New Delhi through its Secretary. 3. Food Corporation of India through its Chairman-cum-Managing Director, Food Corporation of India Headquarters, Barakhamba Lane, New Delhi. Respondents ( By Shri T. C. Gupta and Shri Karunesh Tandon, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Way back on 30.6.2000, the applicant was issued a memorandum pointing towards the events between 6.9.1993 and 30.4.1998 when the applicant allegedly failed to maintain absolute integrity and devotion to duty inasmuch as, that after storage of FCI paddy (94-95) in the premises of rice millers in various districts of Punjab, the millers were allowed to misappropriate FCI stocks in the manner suited to them. The applicant at that time was functioning as Senior Regional Manager, FCI, Punjab. As per the memorandum aforesaid, it had come to the notice of the FCI Headquarters that about 53123 MTs of FCI paddy was found to have been misappropriated in various districts of Punjab. The allegation against the applicant emanating from the said memorandum is also that even after having come to know about proven instances of misappropriation of paddy (94-95) by the millers on a large-scale well before receipt of Government of India instructions for sale of paddy, he had included the misappropriated quantity of paddy in the tender enquiry or in open sale scheme, and that this deliberate irregularity on his part did not have any explanation other than his tacit approval about regularization of sale of misappropriated paddy in connivance with the millers, and further that he did not care to inform this regularization/ misappropriation of paddy to the Headquarters as well as Zonal Office. The applicant challenged the said memorandum by way of an Original Application bearing OA No.632/CH/2000 before the Chandigarh Bench of this Tribunal, which was allowed vide order dated 4.7.2001, with the direction to the respondent authorities to re-consider the matter in the light of provision of para 1.8 of the Vigilance Manual and observations made in the earlier part of the order in that behalf, and till a decision in that behalf was to be taken, not to initiate any action against the applicant on the strength of memorandum dated 30.6.2000. Writ petition filed against the order aforesaid was dismissed by a Division Bench of the Punjab & Haryana High Court. SLP filed against the two orders as referred to above, was dismissed as withdrawn in 2006. The applicant takes strong exception to continuance of proceedings against him emanating from memorandum dated 30.6.2000 by holding departmental enquiry. When this matter came up for motion hearing before us on 11.4.2008, on the contention raised by the learned counsel representing the applicant, we recorded the following order:
Inter alia contends that the applicant was issued Memo in 2000 with regard to allegations, which were subject matter of the enquiry of CBI. Inasmuch as, as per Vigilance Manual, as long as CBI did not recommend any action, no action criminal, departmental or otherwise could be taken against the applicant. That being so, the applicant challenged the Memo dated 30.6.2000 and the Chandigarh Bench of this Tribunal issued directions not to proceed against the applicant, vide order dated 4.7.2001 passed in OA No.632/CH/2000. This order was confirmed by the Division Bench of the Honble Punjab & Haryana High Court, vide order dated 29.7.2005 passed in CWP No.15169/2002. Counsel further contends that meanwhile CBI had given report favourable to the applicant on 28.09.2001 clearly mentioning therein that no action was made out against the applicant. SLP No.975740/2006 filed against the order of Punjab & Haryana High Court was dismissed by the Honble Supreme Court vide judgment dated 05.07.2006. Despite the proceedings/orders referred to above, the applicant apprehends that department is likely to proceed departmentally against him, inasmuch as there is no information to the applicant that the matter has been closed by the respondents.
2. Issue notice to the respondents, returnable on 24.4.2008.
3. Status quo to maintain as obtained today.
Order DASTI.
2. In response to notice issued by this Tribunal, the respondents have filed reply wherein it is pleaded that the department would carry on with the departmental proceeding and take the same to its logical ends. We may mention that at the initial stage, we were prima facie of the view that the Application may be premature, but now when the respondents have taken a categorical stand to proceed against the applicant, an occasion arises to determine the controversy involved in the present case. The factual background culminating into filing of the Application would need a necessary mention.
3. The applicant is a member of the Indian Administrative Service (1982 batch) and is presently working in the rank of Principal Secretary to Government of Punjab, as Member Secretary, Punjab State Commission for Women. He served the Government of India on Central deputation as Senior Regional Manager, Food Corporation of India (FCI), Punjab Region from 6.9.1993 to 30.4.1998. While working on deputation with FCI, the applicant was issued a memorandum dated 30.6.2000 calling for his explanation on certain alleged irregularities, mention whereof has already been made above. It is the case of the applicant that the matter on which the explanation of the applicant was sought vide the memorandum aforesaid had already been enquired into by the FCI, which vide order dated 1.11.1996 had closed the matter with the approval of competent authority. Copy of the order dated 1.11.1996 has been placed on records as Annexure A-2. The same very matter was also referred to CBI which registered P.E. No.PE/2(A)/2000-ACU-VIII/CBI/New Delhi, against various officers including the applicant. It is the case of the applicant that despite the fact that the matter was already closed, and the same very matter stood referred for enquiry to CBI for investigation, still a departmental memorandum was issued to him for the same allegations after a delay of five years on 30.6.2000. Aggrieved, the applicant filed OA, as mentioned above, at the Chandigarh Bench challenging the said memorandum with the primary submission that whereas the matter was being investigated by CBI, parallel investigation/enquiry could not be done in view of para 1.8 of the Vigilance Manual Volume 1, inasmuch as, as per the said provision, once the case has been referred to and has been taken over by CBI, further investigation has to be left to it and parallel investigation by the administrative Ministry/organization should be avoided, and further action can only be taken by the department on completion of investigation by CBI on the basis of its report. It is also the case of the applicant that paras 3.10 and 3.11 of the Vigilance Manual provide as to what action CBI can recommend on completion of the investigation. The said action could be prosecution, regular departmental enquiry or to bring to the notice of the disciplinary authority the nature of irregularities or negligence for such administrative action as may be considered feasible or appropriate. The OA of the applicant was decided by the Chandigarh Bench of the Tribunal on 4.7.2001. The Tribunal, keeping in view the provisions of the Vigilance Manual and the facts and circumstances of the case, and in particular, that CBI was already investigating the same matter, directed that the officers of FCI would place all the documents/material before CBI, and that till the report was to be submitted, no action would be initiated against the applicant on the strength of the memorandum dated 30.6.2000, and further that decision would be taken as per provisions of para 1.8 of the Vigilance Manual, according to which action can only be taken in accordance with the report of CBI as given in paras 3.10 and 3.11 of the said Manual. While referring to the proceedings before CBI, it is pleaded that the said agency recorded the statements of various officials including those of FCI up to its Managing Director, and vide communication dated 28.9.2001, Deputy Inspector General of Police, CBI, AC-III New Delhi, communicated the report of CBI to FCI. Recommendation of CBI in respect of the applicant, after conclusion of the enquiry, is as follows:
I) No action is recommended against Shri Sarvesh Kaushal, the then Sr. Regional Manager, FCI, Punjab Region, Chandigarh. An application seeking review of the order passed by the Chandigarh Bench of the Tribunal was filed by the department on 23.5.2002 after a period of approximately one year, which came to be dismissed on 22.7.2002. Still not satisfied, the Union of India filed CWP bearing No.15169-CAT/2002 before the High Court of Punjab & Haryana against the original as also the order passed in review by the Tribunal. The said writ petition was dismissed by a detailed order on 29.7.2005. The decision of the Tribunal was upheld. SLP filed against the judgment and order of the Punjab & Haryana High Court, which came up for hearing before the Honble Supreme Court on 5.7.2006, was dismissed as withdrawn, in view of the final report submitted by CBI on 28.9.2001, which had completely exonerated the applicant of all the allegations. The order passed by the Honble Supreme Court dated 5.7.2006 reads, thus:
In view of the final report submitted by the CBI, the Petitioner seeks permission to withdraw the petition. Permission granted. The special leave petition is dismissed as withdrawn. It is the case of the applicant that in view of the judgments of the Tribunal as also the High Court and Honble Supreme Court, it was expected of the respondents to have passed appropriate orders as per CBI report in the light of para 1.8 of Chapter III of the Vigilance Manual; however, the respondents have done precious little in the matter even after the judgment of the Honble Supreme Court, and no orders were passed closing the matter and dropping or withdrawing the memorandum dated 30.6.2000. The applicant in the circumstances as mentioned above, was constrained to file a representation on 5.7.2007, bringing out all relevant facts and orders and requested them to pass formal orders of closure of the proceedings in respect of the said memorandum. When the entreaties of the applicant brought no tangible result, present application was filed seeking a declaration to the effect that nothing survives in the memorandum dated 30.6.2000 following the CBI report dated 28.9.2001, and, therefore, a direction be issued to the respondents to treat the memorandum aforesaid as closed.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed two separate counter replies one on behalf of respondents 1 and 2 and the other on behalf respondent no.3, contesting the cause of the applicant. In the counter reply filed on behalf of respondents 1 and 2, it has inter alia been pleaded while giving brief facts of the case, that during the crop year 1994-95, paddy was purchased by the FCI and State agencies of Punjab as is done every year during the crop procurement, and that in the said year the FCI management allowed some paddy to be stored in the Punjab millers premises because of shortage of space. The paddy stored with the millers was to be in the joint custody of millers and FCI. It came to notice of the department through FCI in April, 2000 that on the basis of the result of conducting physical verification of paddy in April, 1995, it was revealed that paddy was misappropriated in various districts of Punjab, in collusion with FCI officials and millers. The said paddy was later on shown as sold to the parties who had misappropriated the same by issuing release orders for the non-existent stocks. It is then pleaded that detection of misappropriation on a large scale of paddy in the district of Bhatinda by FCI headquarters, was brought to the notice of the applicant as early as in June, 1995 when he assured to recover the entire rice in lieu of the misappropriated within a fortnight, as also to file FIR against the millers for their criminal misconduct. No FIR was, however, lodged in time against any miller nor the due quantity of rice recovered from them. On the other hand, the applicant, in the garb of sale of paddy in open market/tender sale, it is further pleaded, allowed causing wrongful loss to FCI and extended huge gain to private millers. It is then pleaded that the agreements provided for recovering the cost of misappropriated paddy at one and a half times of the economic cost, i.e., Rs.837.17 per qtl., whereas the paddy was sold at a considerably low price of Rs.422.00 per qtl. under open sale and at Rs.236/- per qtl. under tender sale. Not only this, while showing such sale of paddy, driage allowance of 2% was also wrongly allowed to the millers, further compounding the loss to FCI. The loss suffered on account of the misconduct of the applicant is stated to be to the tune of about Rs.17.44 crores. While FCI had initiated departmental proceedings against its officials/officers responsible for the loss suffered on account of misappropriation of paddy, in the mean time, CBI had separately registered on a source complaint, a preliminary enquiry on 16.2.2000 against the applicant and other officers of FCI, as also private millers. Later on the department also handed over the case to Director, CBI on 17.5.2000 for undertaking a detailed enquiry into the entire case covering all transactions involved in the disposal of paddy by the FCI and Government of Punjab and its agencies on the plea that an administrative enquiry could not possibly examine all the issues that were raised in the communication to CBI. The request of the department was, however, not agreed to by CBI and it restricted its investigation to two districts, i.e., Bhatinda and Gurdaspur. On the request of FCI, the department also took a decision to initiate departmental action against the applicant, and accordingly a show cause notice was issued to him on 30.6.2000. Although CBI recommended initiation of regular departmental action for major penalty against certain officers of FCI, it did not recommend any action against the applicant on the plea that the allegations against him could not be proved. The investigation report was, however, restricted to the happenings in only two districts, i.e., Bhatinda and Gurdaspur. FCI constituted a committee of three members consisting of senior officials of the rank of Executive Director who were conversant with the rules, regulations and functioning of FCI, to look into the case afresh vis-`-vis the findings of CBI. The committee was of the view that the applicant had full knowledge about the happenings in Punjab in respect of regularization of shortage/misappropriated paddy (1994-95) stored in the premises of millers by realizing the price fixed by the Government of India for open/tender sale, and held that in the circumstances, it would not be appropriate to agree with the CBI findings in respect of the applicant. The committee also observed that although CBI had rebutted the plea of the applicant in favour of 2% driage allowance in open/tender sale, the same had not been rebutted in respect of 11 officers/officials, which would be contradictory. FCI accepted the report of the committee and did not agree with the findings of CBI in regard to the role of the applicant, and proposed to take action against him for his role in the alleged sale of misappropriated 1994-95 paddy. After referring to the developments in the court cases, i.e., OA No.632/CH/2000, the decision rendered therein by the Chandigarh Bench of the Tribunal, the application seeking review of the order and the outcome thereof, as also the writ petition that came to be filed in the High Court of Punjab & Haryana and the outcome thereof, it is then pleaded that after decision of the High Court dismissing the writ petition filed challenging the order of the Tribunal, the counsel conducting the case felt that it was a fit case for filing SLP in the Honble Supreme Court. The matter was then referred to Department of Legal Affairs for their considered advice, which was of the view that the judgments of the Tribunal and the High Court were contrary to law as laid down by the Apex Court in number of cases, and that in the present case, even without framing any charge, at a premature stage, the department was restrained from taking action against one of its employees and, therefore, the case appeared to be fit one to agitate before the Apex Court. The Solicitor General of India, it is the case of the respondents, was also of the view that an important issue is involved in the matter and, therefore, it would be a fit case for filing SLP. Accordingly, SLP was filed, which was, however, dismissed as withdrawn on 5.7.2006. It is then pleaded that CBI submitted its report on 28.9.2001 and the question of parallel enquiry against the applicant also seems to have ended on 28.9.2001 and in accordance with para 1.8 of the Vigilance Manual, which stipulates that as far as possible, the departmental proceedings should be held/conducted after completion of CBI investigation. It is, however, pleaded that it appears that the department was precluded from taking action against the applicant in view of the legal advise/various stay and other orders passed from time to time. By way of preliminary objections, it is pleaded that the present Application is not maintainable, as no substantial question of law warranting judicial review has been raised. Memorandum dated 30.6.2000 is stated to be still pending consideration and disposal, and it is only because of the circumstances created by the applicant himself that no decision thereon has been taken. The Application is stated to be premature and not disclosing any cause of action. While replying on merits, it is pleaded that letter dated 1.11.1996 came into being prior to issuance of memorandum dated 30.6.2000. The matter was not pursued by FCI initially. However, in subsequent investigations, irregularities/lapses on the part of the applicant came to surface. It is pleaded that the applicant allowed misappropriation of paddy by the millers in various districts of Punjab in collusion with FCI officials/officers and the millers, and that the decision to issue the show cause notice to him was taken after the irregularities were detected. It is then pleaded that even if the investigation had been closed by the authorities in FCI, the said authorities could re-open the matter, particularly if any new facts or evidence had come to their notice, and that the decision to close the case is merely an administrative decision and cannot attain an irreversible finality in the face of evidence which calls for fresh enquiry or preliminary enquiry. The investigation conducted by CBI is not disputed even though, it is stated that the same was confined to only two districts, i.e., Bhatinda and Gurdaspur. It is then reiterated that on examining the CBI report, FCI constituted a three-member committee which found instances that established that the applicant had full knowledge of the misappropriation of paddy by the millers in his region, not restricted to only Bhatinda and Gurdaspur. The said committee did not agree with the findings of CBI and recommended action against the applicant vide its report forwarded by FCI vide letter dated 11.6.2002. The applicant was served the show cause notice dated 30.6.2000 requiring him to explain his alleged acts of omission and dereliction of duties, which, he, however, challenged by way of filing OA No.632/CH/2000 before the Tribunal at Chandigarh. It is then pleaded that the report of CBI was not comprehensive as it was limited only to two districts of Bhatinda and Gurdaspur. The action of the respondents, it is stated, was on the basis of the findings of the said three-member committee, which was appointed by Chairman-cum-Managing Director, FCI, and that the CVC was consulted in the matter, which, after going through the case, recommended major penalty proceedings against the applicant vide OM dated 1.1.2004. While referring to the court cases, it is pleaded that it has nowhere been ordered that the decision on the impugned memorandum may be taken as per the report of CBI, and that the High Court had only agreed with the order of the Tribunal that simultaneous investigation by the department during the pendency of investigation by CBI would not be permissible as per para 1.8 of the Vigilance Manual, and further that the Tribunal had only given a direction to the respondents to reconsider the matter in the light of the provisions contained in para 1.8 of the said Manual. It is then pleaded that unfortunately, the fact that CBI had already concluded the investigation and submitted its report on 28.9.2001 could not be placed before the Honble High Court. The matter was referred to Department of Legal Affairs for their considered advice, which was of the view that the Tribunal and the High Court in their judgments were contrary to the law laid down by the Apex Court in number of cases. It is further pleaded that the counsel representing the respondents before the Honble Supreme Court withdrew the SLP on his own in view of the fact that CBI had already filed its report, and that in view of para 1.8 of the Vigilance Manual the department can now proceed with the departmental proceedings.
5. The pleadings made in the written statement filed on behalf of the 3rd respondent in opposing the cause of the applicant are similar or akin to the one taken by the 1st and 2nd respondents, and need not be mentioned.
6. The applicant has filed rejoinder to both the counter replies. We may, however, refer to the pleadings made in the rejoinder as may pertain to the counter reply filed on behalf of the 1st and 2nd respondents only. While referring to the observations made by the Tribunal at Chandigarh in its judgment dated 4.7.2001, it is pleaded that the feeble attempt on the part of the respondents now to project that CBI had restricted its investigation to two districts of Punjab, i.e., Bhatinda and Gurdaspur, is nothing but an attempt to block the service progression of the applicant, and that even in the memorandum dated 30.6.2000 the respondents had alleged that misappropriation was found in seven districts, out of which Bhatinda and Gurdaspur were two. The said memorandum remained the subject matter of litigation before the Tribunal, the High Court of Punjab & Haryana and the Honble Supreme Court, and was not something which was not either within the knowledge of the respondents or was not in the consideration of the judicial fora. It is the case of the applicant that even if the CBI restricted its enquiry to two districts as mentioned above, it was up to it to decide the mode and manner of its enquiry, i.e., whether to conduct a representative enquiry, sample enquiry or extended enquiry, and that the applicant had no role to play in determination thereof, and further that the respondents participated in the enquiry as a party against the applicant and passed on the entire incriminating material against him to the premier investigating agency. Officers up to the level of Managing Director participated in the enquiry proceedings, while the Secretary of the 2nd respondent Ministry personally monitored the enquiry proceedings. However, the allegations against the applicant could not be substantiated. CBI recommended departmental against a number of officials but completely exonerated the applicant and recommended NO ACTION. It is pleaded that the respondents after having participated as a party against the applicant in the CBI enquiry, and after handing over the entire alleged incriminating material against him to CBI as per the directions of the Tribunal, had no locus standi to sit in judgment over the merits of CBI enquiry report by appointing a self-serving committee of few of officials to find fault with the report furnished by their own premier investigating agency. The action, it is pleaded, smacks of vindictiveness and is in violation of para 1.8 of the Vigilance Manual. While dealing with the preliminary objections raised by the respondents, it is pleaded that the present Application has been filed against the deliberate and intentional inaction on the part of the respondents in not formally closing the matter with regard to the memorandum dated 30.6.2001 notwithstanding orders of the Courts, and even now the contention of the respondents is that the decision on the memorandum is yet to be taken by the competent authority. It is then pleaded that in a matter concerning the service career of a public servant, it is too callous on the part of the respondents, even after the expiry of eight years, to say that they have not yet taken decision on the memorandum, in which, in view of judicial pronouncements of the hierarchy of Courts, nothing further survives for consideration by the administrative authorities. It is the case of the applicant that the respondents cannot be allowed to sit in judgment or to review the judicial orders; however, the applicant has filed the OA for declaration to that effect sensing the propensity of the respondents to damage his service career by their conduct of not empanelling him for the post of Joint Secretary to the Government of India, even though the applicant was due for the same way back in 2001. The other preliminary objections have also been refuted. It is reiterated that the matter stood closed vide order dated 1.11.1996 by the answering respondents themselves. It is then pleaded that in view of the orders passed by the Tribunal and the High Court as also the Honble Supreme Court, and complete exoneration of the applicant from all charges in two enquiries, one conducted by the respondents and the other by CBI, the respondents cannot, by constituting some committee, sit in appeal over the report of CBI and judicial orders, as also mandatory provisions contained in para 1.8 of the Vigilance Manual. While referring to some of the observations/findings made by the High Court, it is pleaded that reliance placed by the respondents on para 3.18 of the said Manual is an affront to the authority of the Honble High Court and in complete derogation of what the Honble Court has said when the very same point was urged before it. It is also pleaded that the Central Vigilance Commissioner, on whose advice, which was taken behind the back of the applicant, reliance is now being placed by the respondents, was the Secretary of Ministry of Consumer Affairs and Public Distribution during the period when the proceedings relating to the impugned memorandum and enquiry in question were initiated, and it was he who had dealt with the relevant file in the Ministry at the relevant time, and that having dealt with the matter on administrative side, the action of the Central Vigilance Commissioner to deal with the same matter in his capacity as such, instead of reclusing himself, suffers from bias and impropriety.
7. Proceedings in the present case recorded from time to time reveal that the respondents had filed their counter replies before 17.11.2008, on which date they, however, sought adjournment, which was granted and the matter was ordered to be listed for hearing on 18.11.2008. When this matter came up for hearing on 9.7.2009, learned counsel representing the applicant, after arguing for some time, sought adjournment to file additional affidavit. The applicant was allowed to do so. In the additional affidavit, reference has been made to Ground (C) taken in the OA, wherein biased and coloured advice of the incumbent Central Vigilance Commissioner has been pointed out. In the Ground aforesaid, it is mentioned that the biased and coloured advice of the incumbent Central Vigilance Commissioner, who had been elevated from his earlier posting as Secretary of the 2nd respondent Ministry and was thus interested to uphold his actions, cannot render otiose the provisions of the Vigilance Manual. The applicant has also made reference to his rejoinder wherein it is pleaded that it would be relevant to point out that the Central Vigilance Commissioner on whose advice, which the respondents obtained at the back of the applicant, reliance is now being placed by the respondents, was the Secretary of the Ministry of Consumer Affairs and Public Distribution during the period when the proceedings relating to the impugned memorandum and enquiry in question were initiated and it was he who had dealt with the relevant file in the Ministry at the relevant time, and having dealt with the matter on administrative side the action of the Central Vigilance Commissioner to deal with the same matter in his capacity as such instead of reclusing himself suffers from bias and impropriety. It is then pleaded that proceedings against the applicant were vitiated on account of bias of Shri P. Shankar who was Secretary, Food and Public Distribution in the Ministry during the period 31.5.2000 to 2.11.2000 and had dealt with the case of the applicant in his capacity as such, and again dealt with the case on being appointed as CVC in September, 2002, which position he continued to hold till September, 2006. It is the case of the applicant that memorandum dated 30.6.2000, which is the subject matter of present OA, was issued during the tenure of Shri P. Shankar, Secretary (F&PD), and that in his capacity as Secretary (F&PD) Shri Shankar had been dealing with the same very matter and having discussions and meetings with the Managing Director, FCI. The applicant has placed on records letters dated 21.9.2000 and 14.6.2000 in support of the plea as mentioned above. It is then pleaded that the fact that Shri P. Shankar had advised initiation of major penalty proceedings against the applicant in his capacity as CVC is amply proved by the letter dated 1.1.2004, on which the respondents have relied upon, and copy whereof has been annexed as Annexure A-12. It is the case of the applicant that no one can be a judge of his own cause, and the decision maker should have no interest in the outcome of a proceeding directly or indirectly, and that once having dealt with a file on administrative side as Secretary (F&PD), it was not open to Shri P. Shankar to tender any advice as CVC. The respondents have filed reply to this additional affidavit. The names and tenure of Secretary of the department during the period under reference are given as follows:
S.No. Name of Secretary Tenure
1. Shri N. K. Mookerjee 2.3.1998 to 3.4.1998
2. Shri R.S. Mathur 3.4.1998 to 21.5.1999
3. Shri M.D. Asthana 21.5.1999 to 28.5.2000
4. Shri P. Shankar 31.5.2000 to 2.11.2000
5. Shri R.D. Kapur 2.11.2000 to 30.9.2002 It is pleaded that Shri R. S. Mathur was Secretary of the Department whose tenure was from 3.4.1998 to 21.5.1999. Shri M. D. Asthana joined as Secretary w.e.f. 21.5.1999 in place of Shri Mathur and remained in position till 28.5.2000. It is then pleaded that during the tenure of Shri Asthana as Secretary, it was Shri Shanta Kumar, the then Minister of Consumer Affairs and Public Distribution, who vide his order dated 5.5.2000 issued directions to hand-over the entire case to CBI and also to take departmental action against the applicant and issue show cause notice to him. Shri P. Shankar joined the Department as Secretary only on 31.5.2000 after Shri M. D. Asthana had left the Department on 28.5.2000. Shri Shankar remained Secretary only for a period of six months from 31.5.2000 to 2.11.2000. It is pleaded that the decision to proceed against the applicant departmentally and to hand over the case to CBI was taken before Shri Shankar had assumed office. The department sought relevant documents from FCI vide letter dated 12.5.2000 from Director (Vigilance) followed by reminders dated 19.5.2000, 30.5.2000 and 6.6.2000. FCI submitted draft memorandum (show cause notice) along with relevant documents vide letter dated 21.6.2000. The show cause notice to the applicant was issued vide memorandum dated 30.6.2000 with approval of the competent authority, i.e., the Minister of Consumer Affairs and Public Distribution. It is the case of the respondents that it is clear that the decision to hand over the case to CBI and to proceed departmentally against the applicant by issuing a show cause notice had already been taken by the time Shri Shankar assumed charge as Secretary of the Department, and that the Honble Minister approved issuance of the show cause. The allegation made by the applicant that Shri P. Shankar was biased against him is refuted. The Central Vigilance commission, it is further stated, was set up by the Government and was accorded statutory status w.e.f. 25.8.1998. Subsequently, the Central Vigilance Commission Act, 2003 was passed by the Parliament. The Commission, it is then stated, is a three-member Commission consisting of the Central Vigilance Commissioner and two Commissioners. It has been unanimously decided that each case received for Commissions advice would be routed through one of the Vigilance Commissioners, who would make its recommendation to the Central Vigilance Commissioner, and in case of agreement between the two, the recommendation would become the Commissions advice. However, if there is difference of opinion between the two, the matter is discussed in the Commissions meeting where a unanimous decision is attempted, but if the difference still persists, the majority decision prevails. Thus, the recommendation/advice of the Commission is not the decision of an individual but the decision of the Commission as a whole. It is then pleaded that there is no legal bar upon incumbents in the Commission not to deal with the files/cases one may have dealt earlier in his administrative capacity, and further that the advice of the Commission is advisory in nature and not binding upon the disciplinary authority. The applicant, it is stated, has failed to bring out any facts and circumstances which may lead towards any indication that the advice of the commission was coloured in any form.
8. Before we may advert to the controversy on merits, we may first deal with the preliminary objection raised by the respondents that the present Application is premature. It is averred and so argued that memorandum dated 30.6.2000 is still pending consideration and disposal, and it is only because of the circumstances created by the applicant himself, even though he may have submitted reply to the same as well, that the same is still pending. We have already mentioned that even at the time of issuance of notice, it prima facie appeared that the present matter may be premature. However, on deeper consideration of the matter, we are of the considered view that this Application cannot be dismissed being premature. The allegations pertain to the year 1994-95 even though, investigation in the matter may have been conducted by CBI in 2000, culminating into its report in 2001. When pending investigation in the matter by CBI the respondents issued memorandum to the applicant in 2000, he challenged the same with the result already indicated above. The controversy with regard to competence of the respondents to start parallel proceedings came to an end when the respondents withdrew the SLP filed against the judgment of the Punjab & Haryana High Court, on 5.7.2006. Surely, if it was to be the case of the respondents that there would be no bar for proceeding departmentally against the applicant despite the orders passed by the Tribunal and the High Court, they ought to have taken action, at least, in the close vicinity when the SLP was withdrawn. The respondents would do nothing in the matter and meanwhile, the applicants empanelment for the post of Joint Secretary to Government of India was stalled. It is the case of the applicant that his name has been shown in the list of tainted officers and his career progression has come to a grinding halt. Would a citizen wait for an indefinite period, which, in a given case, may extend up to the age of his superannuation, for a decision to be taken by the respondents, which they are bound to take, and if no such decision is taken, to keep on suffering. In a situation as the one in hand, we outrightly reject the plea raised by the respondents that present Application would be premature. No citizen can be confronted with such a plea when the required action at the instance of the respondents is not taken for years, jeopardizing his whole career. That apart, we could find some weight in the contention as raised by the learned counsel, if perhaps it was to be the case of the respondents that it is possible for them to take a decision in favour of the applicant. They have not even prayed for making a decision, one way or the other, by dispassionately considering the case of the applicant. On the contrary, it is the positive case of the respondents that action would be taken against the applicant and the memorandum dated 30.6.2000 would be taken to its logical ends. Every point raised by the applicant is vehemently contested. We may only mention that during the course of arguments, Shri T. C. Gupta, has handed over to us the file pertaining to notes and decisions that came to be recorded or arrived at during pendency of present Application. The same unmistakably reveal that despite the opinion of Shri P. C. Hota Advocate, retired Chairman of UPSC and retired Secretary DOP&T, obtained after filing the present Application, which was supported by the legal section of the department, a positive decision has been taken to defend the case and proceed departmentally against the applicant. On 18.8.2008, the department vide a detailed note, reference wherein is also to the opinion of Shri P. C. Hota and that of the legal section, obtained orders on three alternatives from the competent authority. The same read, thus:
In view of the considered opinion of Shri P. C. Hota, Advocate and FCI, it is for orders whether we may advise FCI to submit to the Honble CAT in reply to the notice of the case that the UPI have dropped all charges against Shri Sarvesh Kaushal arising out of alleged irregularities committed by him during the Kharif procurement season 1994-95 which would mean that we agree to withdraw the Memorandum, dated 30.6.2000 issued to Shri Kaushal and also desist from further action for preparation of draft chargesheet against Shri Kaushal.
OR (A) We may ask FCI that since the decision to chargesheet Shri Kaushal was made by FCI on the basis of the report of three EDs Committee despite the report of CBI not recommending any action against Shri Kaushal, the FCI may defend their decision in the CAT. It would mean we may continue to initiate disciplinary proceedings by forwarding the draft chargesheet to DOP&T against Shri Kaushal in the matter and let the DOP&T decide whether they want to proceed further or not.
OR We may take some other action as may be appropriate The order that came to be passed on 19.8.2008 on the note as reproduced above, is as follows:
In view of (A) above we may go ahead to initiate disciplinary proceedings against Shri Sarvesh Kaushal and advise FCI accordingly to defend the case instead of withdrawing. The decision dated 19.8.2008 in teeth of the legal advise to the contrary, although taken now during the pendency of this Application, would thus clearly reveal that even though, such a decision may not have been taken at the time when the present Application was filed, but it has been taken now, and, therefore the plea raised by the respondents that as no decision as yet has been taken, the OA would be premature, is incorrect. We may also, at this stage, deal with another almost similar objection raised by the respondents that this Tribunal may have no jurisdiction whatsoever to interfere at such initial stage as in the present case, where the applicant has only been issued the memorandum dated 30.6.2000. It is urged that this Tribunal may not interfere at an interlocutory stage, and further that ordinarily an OA or writ petition should not be entertained against issuance of merely a show cause notice or chargesheet. It is also the contention of the learned counsel that examining the correctness of charges, particularly at the stage of framing of charges, is beyond the jurisdiction of the Tribunal, and, therefore, examining the merits of the charge would be improper. For the contention as noted above, the counsel has placed reliance upon the judgment of this Tribunal in OA No.340/2008 decided on 7.7.2008 in the matter of Dal Singh v Union of India & Others and judgments of the Honble Supreme Court in Union of India & Others v Kunisetty Satyanarayana [(2006) 12 SCC 28]; Union of India v Upendra Singh [(1994) 3 SCC 357]; State of Punjab v Ajit Singh [(1997) 11 SCC 368]; and Secretary, Prohibition and Excise Department v L. Srinivasan [JT 1996 (3) SC 202]. We have given our serious thoughts to the contention of the learned counsel as noted above, but find no merit therein in the context of the facts and circumstances of the present case. The judicial precedents cited by the learned counsel do not universally apply to all the cases whatever be their facts. Interference at the initial stage is normally not to be done, but there may arise such circumstances which may require interference at that stage itself. This precise contention was raised by the respondents in the very case, i.e., the case of the applicant when he filed OA No.632/CH/2000 before the Tribunal at Chandigarh. The Tribunal while repelling the said contention, held as follows:
18. There is no dispute that it has been settled by now that ordinarily the Tribunal should not interfere at the initial stage of issuance of the show cause notice and he must be left to have the remedies before the authorities in the first instance and to show cause to them as to why no action is required to be taken in pursuance of the show cause notice. Even in the case of Deputy Inspector General of Police Vs. Swaminathan, reported as 1997 (2) RSJ 761, it was held by the court that the tribunal is not expected to interfere with the chargesheet at the initial stage. However, it is not an absolute proposition of law. Cases are not unknown where a show cause notice or a chargesheet has been quashed at the threshold by the courts i.e. in cases where chargesheet had been issued after a long delay or disciplinary proceedings were not concluded for a decade or so. In the case of Z. B. Nagarkar Vs. Union of India, reported as 1999 (7) SCC 409, the apex court quashed the chargesheet on the ground that merely because quasi judicial authority decides a matter in a particular manner constituting misconduct under the rule. It was further held that mere negligence, carelessness and inadvertence cannot be termed as culpable negligence as the same could be termed as error of judgment.
In the present case challenge to the Memorandum, Annexure A-1 is not only on merits of the charges but is also on the ground that it has been issued in violation of the provisions of Para 1.8 of the Vigilance Manual. This precise submission was reiterated before the Division Bench of the Punjab & Haryana High Court. We may note the same as raised there, as mentioned in the judgment itself, which reads, Mr. Jain, learned Sr. Counsel has also cited a number of authorities in support of the submissions that the Tribunal erred in law in entertaining the OA filed by Kaushal. According to the learned Sr. Counsel, it is not permissible for the Court to quash departmental proceedings at the initial stage itself. The Honble Bench referred to some of the judicial precedents cited for the proposition as noted above, and in particular, Special Director & Another v Mohd. Ghulam Ghouse & Another [AIR 2004 SC 1467] and Executive Engineer, Bihar State Housing Board v Ramesh Kumar Singh & Others [JT 1995 (8) SC 331]. The Division Bench quoted the relevant portion of the judicial precedents as mentioned above and thereafter observed as follows:
In our opinion, the observations of the Supreme Court would tend to support the view taken by the Tribunal in entertaining the OA on the ground that the show-cause notice could not have been issued in view of para 1.8 of the Vigilance Manuagl.
9. In our considered opinion, interference at the initial stage may be resorted to in rare cases, but there is no absolute bar to do so; it will depend upon facts and circumstances of each case, and no straitjacket formula can be prescribed. Without being exhaustive, and only by way of illustration, we may mention that the courts or tribunals would be justified in interfering at the initial stage where charge memo may have been issued by the incompetent authority; delinquency pointed out where the concerned government official may have erred in deciding a quasi judicial matter; the proceedings may have been initiated after considerable delay causing prejudice to the employee; and where, even if the allegations subject matter of charge may be taken to be a gospel truth, no delinquency is made out; and further, where proceedings may be barred by statute or such instructions as may partake the character of the statute. In the present case, we may mention that the Tribunal and the High Court interfered as there was a bar for simultaneous proceedings emanating from the provisions of the Vigilance Manual, which have been held to be binding upon the employer.
10. Before we may take into consideration the contentions raised by Shri Khurana, learned Sr. Advocate representing the applicant, in support of the present Application, it would be useful to make a mention of certain facts on which there may be no dispute whatsoever. Concededly, the allegations made against the applicant, subject matter of memorandum dated 30.6.2000, are the same for which CBI was to conduct investigation, the matter having been specifically entrusted by the department, even though initially CBI had itself recorded on a source complaint, a preliminary enquiry. CBI admittedly made investigation with regard to allegations subject matter of the memorandum and vide its report dated 28.9.2001 recommended no action against the applicant. The applicant has placed on records the report of CBI as Annexure A-4. It would reveal that the investigation was with regard to conduct of as many as 13 officers, the applicant being no.1, so mentioned in the report of CBI. We may briefly mention the defence projected by the applicant, which found favour with CBI. The same, as emanating from the report of CBI, reads thus:
The plea taken by Shri Sarvesh Kaushal, the then SRM, FCI, Chandigarh has been found tenable that he had issued necessary instructions to all the District Managers followed by reminders to take all due precautions to ensure that there is no pilferage/misappropriation of FCI paddy stored in the premises of millers. These instructions were issued at the time of forwarding the draft agreement to the District Manager which was to be executed between the District Manager and respective millers. He had also initiated proceedings against the FCI officials of District Bhatinda who were found responsible for causing shortage of FCI paddy under their charge. His contention that immediate action was not taken against the officials of FCI, Gurdaspur is also tenable in view of the observations made by Shri a. V. Gokak in meeting dated 25.8.1995 and also in view of the fact that the shortages were detected by FCI officials during their own physical verification. His contention that he accepted the tender for sale of paddy on recommendation of the committee constituted to the said effect without knowing that the same also included those millers in whose premises paddy was found short. With regard to the proposal proposing for shortage of paddy in the premises of mill owners on the pattern of Government of Punjab and subsequent proposal for sale of paddy under the open sale scheme/the tender sale scheme, he has contended that the aforesaid proposals were the requirements of the situations which were duly examined, analysed and accepted by the FCI HQs and Ministry of Food. The recommendation contained in para 13 of the report, insofar as the applicant is concerned, reads, No action is recommended against Shri Sarvesh Kaushal, the then Sr. Regional Manager, FCI, Punjab Region, Chandigarh. CBI recommended regular departmental action for major penalty against S/Shri D. S. Naik, Shamsher Singh, Joginder Singh, V. K. Mishra, Swaran Dass, Ujjagar Singh, Ram Prasad, Santokh Singh, Dharam Pal and Nirmal Singh. Jagir Singh, AG-II of Batala Unit-II, had already expired. Shri J. S. Chawla, incharge District Manager, Gurdaspur, having since retired in 1995, no action was recommended against him. The report is accompanied by articles of charge against all against whom departmental action has been recommended.
11. Having dealt with the preliminary issues, which alone were pressed during the course of arguments, time is now ripe to take into consideration the core controversy in the present case. Shri Khurana, learned Sr. Advocate representing the applicant, contends that memorandum dated 30.6.2000 ceased to exist with effect from 4.7.2001, since the proceedings arising out of aforesaid memorandum merged with the CBI enquiry by the orders of the Tribunal dated 4.7.2001, which has been upheld by the Honble Division Bench of High Court of Punjab & Haryana, against which the respondents themselves withdrew the SLP, and that further action can only be taken by the department on the basis of CBI report as per provisions of Chapter III of the Vigilance Manual, and further that since the report of CBI is to take no action whatsoever against the applicant, the respondents have no choice but to drop the proceedings emanating from the memorandum dated 30.6.2000. In support of the contention aforesaid, it is urged that it is not the case of the respondents that they were unaware of the consequences of the judgment recorded by the Tribunal. The report of the CBI came into being on 28.9.2001. The Tribunal passed orders in the OA on 4.7.2001, whereas the review application came to be dismissed on 22.7.2002. Despite that, the respondents challenged the original order and the order in review before the Honble High Court and persisted with their case. So much so, when the writ petition filed by the respondents came to be dismissed on 29.7.2005, the respondents carried an appeal against the same. If the respondents were of the view that the judgment of the Tribunal would not be binding upon them and after the CBI gave its report on 28.9.2001, while disagreeing with the same they could yet proceed with the memorandum dated 30.6.2000, and there was no need whatsoever to challenge the order of the Tribunal, first in the High Court and then in the Supreme Court. They felt bound by the decision for the reason that if provisions of the Vigilance Manual were binding at a stage when CBI was conducting investigation, the same and other relevant provisions of the said Manual covering the situation in the aftermath of the investigation shall also be binding. It is urged that having suffered judgment against them by the High Court and by withdrawing the SLP, it was not open for the respondents to say that the matter is not covered by the decisions as referred to above simply because the same dealt with the stage when investigation was still pending. Alternatively, it is urged that if it be the case of the respondents that the inter partes judgment deals only with a situation when investigation by CBI was going on and that they were, at the most, debarred from resorting to simultaneous proceedings, then in that case, present would be a case where the respondents have delayed the matter beyond measures, for which there is absolutely no explanation, and at this late stage if the applicant is to be proceeded, he would be greatly prejudiced in defending his cause. The third and the last argument raised by the learned counsel is that Shri P. Shankar, a former IAS officer, was the Secretary of the respondent Ministry, and that he was dealing with the case of the applicant at the relevant stage and persisted with the memorandum dated 30.6.2000, and further that after becoming CVC, he again dealt with the case and gave an advice for departmental action against the applicant, and that he ought to have recused himself and, therefore, the advice given by him for departmental action would be against principles of natural justice. In case the applicant may succeed on this point, it, however, could not be disputed that in that event, a fresh advice of the present CVC (Shri P. Shankar not being in that position now) would be required before a decision is taken to departmentally proceed against the applicant.
12. Shri Gupta, learned counsel representing the respondents, joins issues with the contention of learned counsel for the applicant, as noted above. He contends that neither the provisions of the Vigilance Manual nor the decisions recorded by the Tribunal and the High Court would have any bearing upon the controversy in issue, and further that the delay, if at all caused, is to be exclusively attributable to the applicant who was resorting to court cases, including the present one, and that Shri P. Shankar may have dealt with the case of the applicant but he was not the only person persisting with the memorandum dated 30.6.2000, and further that there was no legal bar for Shri Shankar to give advice even though, he may have dealt with the case of the applicant for some time.
13. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. We have seen the relevant official records as well.
14. For adjudicating the first contention raised by Shri Khurana as noted above, we may refer to the controversy subject matter of OA No.632/CH/2000 decided by the Chandigarh Bench vide order dated 4.7.2001, the application seeking review of the order aforesaid, bearing RA No.66/2002 decided on 22.7.2002, as also CWP No.15169-CAT/2002 decided on 29.7.2005 by the High Court of Punjab & Haryana, and the order dated 5.7.2006 passed by the Honble Supreme Court in SLP No.4344/2006. Challenge in OA No.632/CH/2000 was primarily to the action of the respondents in proceeding departmentally against the applicant on the basis of memorandum dated 30.6.2000. He prayed restraint on the respondents to proceed against him. The respondents had started a parallel investigation/preliminary enquiry and, as per the case set up by the applicant, the same was in violation of para 1.8 of Chapter III of the Vigilance Manual. The Tribunal while referring to paras 1.8 and 2.3 of the said Manual, held that if the matter had not been registered by CBI and was not under its investigation, the position may have been entirely different and the administrative Ministry may have perhaps been justified to have a preliminary investigation and to chargesheet the applicant thereafter, and the provisions of para 2.3 might have been fully applicable, but in face of the provision contained in para 1.8 it cannot be said that when a matter has been referred to CBI, which is investigating the matter, the administrative Ministry can also independently investigate that very matter. It would, in that situation, be in the nature of double jeopardy, further held the Tribunal. As regards the plea raised by the respondents that there was additional material or information available with them, which was not available with the CBI, the Tribunal held that it was open to the administrative Ministry to collect the material at its own level and pass the information or the material collected to CBI. The direction that ultimately came to be issued by the Tribunal, reads thus:
20. Without going into the allegations of malafide and the validity or otherwise of the show cause notice and having regard to the allegation that the CBI has already initiated inquiry into the matter and investigation is going and the competent authority had already closed the matter after investigation, which allegations have not specifically been denied, we dispose of the OA and the Misc. Application with a direction to the respondent authorities to reconsider the matter in the light of the provision of para 1.8 of the Vigilance Manual and in the light of the observations made in the earlier part of this order in that behalf. Till a decision in that behalf is taken, no action may be initiated against the applicant on the strength of the Memorandum, Annexure A-1. One of the pertinent points that came to be focused by the Tribunal was also as to whether the provisions of the Vigilance Manual, being in the nature of administrative instructions, would be binding. Relying upon the judgments of the Apex Court in Virender S. Hooda & Others v State of Haryana & Another [JT 1999 (5) 62] and Union of India v K. P. Joseph & Others [(1973) 1 SCC 194], it was observed that there are number of administrative orders which confer rights and impose duties, and once an order is likely to affect civil rights of a Government servant, the order cannot be said to be an administrative order. On the basis of the judgment of the Honble Supreme Court in A. P. Aggarwal v Government of NCT of Delhi & Another [JT 1999 (9) 125], it was further observed that once a provision has been incorporated in para 1.8 of the Vigilance Manual to the effect that parallel investigations by administrative Ministry should be avoided, the main purpose of the rules was to shun arbitrariness and to avoid individual harassment by exercising discretion to start parallel investigation by administrative Ministry. As mentioned above, the respondents filed an application seeking review of the order aforesaid. It was inter alia pleaded and argued that investigation by CBI is for criminal prosecution of a Government official, whereas the departmental investigation is only for civil action, and, therefore, even if the applicant had been exonerated by CBI, there is no bar for the department to re-investigate the matter, and that provisions of para 3.18 of the Vigilance Manual had not been brought to the notice of the Tribunal, and, therefore, the order deserved to be reviewed. The two grounds as mentioned above, the Tribunal observed, were not raised in the Original Application.
11. The Division Bench of the Punjab & Haryana High Court in its judgment arising from the writ petition filed against the order of the Tribunal, while referring to paragraphs 3.18, 3.10, 3.11 (i) and 3.11 (ii) of the Vigilance Manual, and while taking into consideration the conclusion arrived at by the Tribunal, observed as follows:
Once the CBI is seized of the matter in terms of para 1.8 of the Vigilance Manual, the department has to stay its hands in conducting preliminary investigation. We are unable to accept the submission of Mr. S.P. Jain, learned Sr. Counsel that the Tribunal has committed a grave error in entertaining the O.A. We are also unable to accept the submission of the learned Sr. Counsel that the Tribunal has foreclosed any further investigation by the department. We also do not find any merit in the submission of the learned Sr. Counsel that the Tribunal had no jurisdiction to quash the show-cause notice even before a reply is submitted by the officer whose explanation has been sought. We are also of the considered opinion that the submission of Mr. S.P. Jain based on paragraph 3.18 of the Vigilance Manual is not well-founded. The directions given by the Tribunal were held to be perfectly in consonance with the provisions of the Vigilance Manual. While dealing with para 1.8 of the Manual, the High court held that once a case has been referred to and taken up by CBI for investigation, further investigation should be left to them and a parallel investigation by the administrative ministry/department/ organization should be avoided, and further action by the department should be taken on completion of investigation by CBI on the basis of their report. The submission made by the respondent department that the instructions contained in the said Manual were not binding was repelled. The observations made by the Tribunal based upon the judicial precedents, as mentioned above, were affirmed. The further finding arrived at by the High Court reads as follows:
The aforesaid observations leave no manner of doubt that the department is bound by the instructions contained in the Vigilance Manual so long as they are not contradictory to any superior legislation such as departmental rules framed under Proviso to Article 309 of the Constitution of India, statutes promulgated by the Legislature and the provisions of the Constitution. No material has been placed on record to show that the instructions contained in para 1.8 of the aforesaid Manual are contrary to any statutory provisions of departmental rules The plea raised by the respondents that parallel proceedings could be conducted on the dint of para 3.18 of the Vigilance Manual was also repelled. In that context it was held as follows:
In our opinion, the aforesaid provision has no application to the facts of the present case. This provides that there is no legal bar to initiation of disciplinary action under the rule applicable to the public servant where criminal prosecution is already pending. In the present case, there is no question of any criminal proceeding which is pending against Kaushal. Only a preliminary investigation is being conducted by the CBI. Criminal proceeding is said to be pending when a charge is framed by the criminal court. The aforesaid stage comes only after the investigation is completed and the report is submitted to the Court for its consideration as to whether there is sufficient material prima facie to prosecute the accused. Even otherwise, the submission with regard to para 3.18 have rightly been rejected by the Tribunal as the matter was not raised in the O.A. Even though, therefore, the Tribunal may have refused to entertain the plea as mentioned above, in the review application, the Honble High Court dealt with and rejected the same. Further observations which may be relevant, as made by the High Court, read thus:
We are of the considered opinion that the aforesaid observations of the Tribunal have been taken totally out of context. In view of the provisions contained in para 1.8 of the Vigilance Manual, further action by the department would have to be taken on the completion of the investigation by the CBI, on the basis of their report. Under para 3.11 (i) (ii) of the aforesaid Manual, the CBI has the power to recommend that departmental action may be taken where allegations are of a serious nature, but evidence available is not sufficient for launching criminal prosecution. In case a departmental enquiry is launched against Kaushal on the completion of the CBI report, only at that stage, the evidentiary value of the aforesaid letter shall have to be seen While referring to para 3.10 and 3.11 of the Vigilance Manual, it was further held as follows:
The aforesaid provisions make it abundantly clear that departmental proceedings have not been foreclosed merely because the issuance of show-cause notice has been quashed during the pendency of the preliminary investigation by the CBI. Mr. S.P. Jain, learned Sr. Counsel has cited a number of judgments in support of the proposition that departmental proceedings can be continued even after an employee has been acquitted by the Criminal Court. The aforesaid proposition is well-established in law. In the present case, at this stage, there is neither a prosecution nor an acquittal of Kaushal in criminal proceedings. Therefore, the judgments cited by the learned Sr. Counsel would, at this stage, not be relevant As regards the plea raised by the respondents that the Tribunal ought not to have quashed the departmental proceedings at the initial stage based upon number of decisions cited by the department, the Division Bench observed as follows:
A perusal of the emphasized portions of the aforesaid extract would show that the Tribunal would have the jurisdiction to entertain O.A. where the show-cause notice is shown to be patently, without jurisdiction. In earlier part of the judgment, we have already held that the show-cause notice had been issued to Kaushal in total contravention of the provisions of the Vigilance Manual. This apart, the Tribunal has not granted the final relief to Kaushal. The department will be at liberty to take departmental action against Kaushal in case it is found that there is not sufficient evidence to prosecute him for any criminal offence on the conclusion of the investigation by the CBI. The writ petition being wholly devoid of merit was dismissed.
15. The order passed by the Honble Supreme Court dated 5.7.2006 has since already been reproduced in the earlier part of the judgment. The SLP was dismissed as withdrawn on the statement made by the counsel for the department. He rather sought permission to withdraw the same, which was granted. It remained undisputed during the course of arguments that simultaneous proceedings, when CBI was seized of the matter and was making investigation, would be barred. This is the law laid down in an inter partes judgment and is thus binding between the parties. There may be some observations with regard to the action to be taken after report of CBI by the High Court, but the pertinent point focused for adjudication by the Court was bar of simultaneous proceedings when CBI was investigating the matter, as envisaged under provisions of the Vigilance Manual. Shri Khurana would, however, contend that the provisions in the same very Manual also deal with a situation that may be available after submitting the report. The situation as in hand may not be a direct question involved, but the binding nature of the provisions of the Manual was indeed in issue, and finally adjudicated upon, further contends the learned counsel. While dealing with the situation that may be available after submission of the report of CBI, the learned counsel contends that the same is indeed envisaged under provisions of the Manual. We may refer to such provisions on which reliance has been placed:
Chapter III of CVC Manual (Volume 1, 5th Edition) 1.8 Once a case bas been referred to and taken up by the CBI for investigation, further investigation should be left to them and a parallel investigation by the Administrative Ministry/Department, Organization should be avoided. Further action by the Department should be taken on the completion of investigation by the CBI on the basis of their report (emphasis supplied). Paragraphs 3.10 to 3.15 of the Vigilance Manual read, thus:
3.10 If on completion of investigation, the CBI come to the conclusion that sufficient evidence is forth-coming for launching a criminal prosecution, then the final report of investigation in such cases shall be forwarded to the Central Vigilance Commission if sanction to prosecution is required under any law to be issued in the name of the president. In other cases, the report will be forwarded to the authority competent to sanction prosecution. The report will be accompanied by the draft sanction order in the prescribed form (see Chapter VII), and will give the rank and designation of the authority competent to dismiss the delinquent officer from service and the law or rules under which that authority is competent to do so. Further action to be taken on such reports is described in Chapter VII. 3.11 In other cases in which evidence available is not sufficient for launching criminal prosecution, the CBI may come to the conclusion that:
The allegations are of a nature serious enough to justify regular departmental action being taken against the public servant concerned. The final report in such cases will be accompanied by (a) draft articles of charges prepared in the prescribed form (see Chapter X), (b) a statement of imputations in support of each charge, and (c) lists of documents and witnesses relied upon to prove the charges and imputations; or While sufficient proof is not available to justify prosecution or regular departmental action, there is a reasonable suspicion about the honesty or integrity of the Government servant concerned, the final report in such cases will seek to bring to the notice of the disciplinary authority the nature of irregularity or negligence for such administrative action as may be considered feasible or appropriate. 3.12 Reports of both types mentioned in paragraph 3.10 which pertain to gazetted officers and other Cat. A officers (Please see para 3.11, Chapter II) will be forwarded by the CBI to the Central Vigilance Commission who will advise the disciplinary authority concerned regarding the course of further action to be taken. A copy of the report will be sent to the Ministry/Department/ Office concerned also. The CBI report may also mention the date when the first information was lodged or preliminary enquiry was registered, as this will be helpful for a proper assessment of the documentary evidence produced during the enquiry. 3.13 The reports forwarded to the Central Vigilance Commission will be accompanied by the verbatim statement(s) of the delinquent officer(s) recorded by the Investigating Officer and the opinion of the Legal Division of the CBI wherever obtained. 3.14 Investigation reports pertaining to non-gazetted officers will be forwarded by the CBI direct to the disciplinary authority concerned. In such cases, no further departmental fact-finding enquiry should normally be necessary. However, if there are any points on which the disciplinary authority may desire to have additional information or clarification, the CBI may be requested to furnish the required Information/clarification, if necessary by making a further investigation. 3.15 In cases in which preliminary enquiry/ investigation disclosed that there is no substance in the allegations, the CBI may decide to close the case. Such cases pertaining to gazetted officers and other Cat.A officers (please see para 3.11 Chapter II) will be reported to the Central Vigilance Commission as also to the authorities to whom copies of FIRs/PE Registration Reports were sent. In other cases, the decision to close the case will be communicated by the CBI to the administrative authority concerned. The contention of the learned counsel based upon paragraphs as above of the Vigilance Manual is that the provisions of the said Manual are a complete code in themselves, and that they take care of every possible situation. In view of para 3.10, if on completion of investigation the CBI comes to the conclusion that sufficient evidence is forthcoming for launching criminal prosecution, then the final report of investigation in such cases shall be forwarded to the CVC, if sanction to prosecution is required. In other cases, the report may be forwarded to the authority competent to sanction prosecution. So much so, the report given by the CBI may be accompanied by draft sanction order in the prescribed form. Further action to be taken on such report is mentioned in Chapter VII. It is urged that in a situation where the evidence available may not be sufficient for launching criminal prosecution or in other words, the evidence may not be such by which the offence alleged against an employee can be brought home beyond shadow of reasonable doubt, but is sufficient, inasmuch as, on preponderance of evidence, charge can be established in a departmental enquiry, where proof beyond shadow of reasonable doubt is not required, CBI would recommend departmental enquiry, as may appear from provisions contained in para 3.11 of the said Manual. Where the CBI may come to the conclusion that the allegations are of a nature serious enough to justify regular departmental action being taken, the final report in such cases will be accompanied by a draft articles of charge prepared in prescribed form, statement of imputations in support of each charge, and lists of documents and witnesses relied upon to prove the charges and imputations, as was indeed done in this very case with regard to others against whom also CBI conducted investigation. Further where the evidence may not be of even such a nature by which the charges can be proved in a departmental enquiry, the final report in such cases will seek to bring to the notice of the disciplinary authority the nature of irregularity or negligence for such administrative action as may be considered feasible or appropriate. These are the only possible situations and all of these have been taken care of. That being so if the CBI has recommended no action against the applicant, the respondents would be debarred from carrying the memorandum dated 30.6.2000 any further. While relying upon provisions contained in para 3.15 of the Vigilance Manual, it is further urged that when enquiry/investigation may disclose no substance in the allegations, CBI may decide to close the case, and its decision would be communicated to CVC as also the concerned authorities. It is further urged that there is no provision in such a scenario of any disagreement with the final closure report. Shri Gupta, learned counsel for the respondents would, however, contend that it is always the prerogative of the disciplinary authority to agree or disagree with such reports, which cannot be termed more than as an opinion, be it of CBI, CVC or UPSC. He further contends that when there is no bar for departmentally proceeding against a person even if he is acquitted from the criminal charge, the mere opinion of CBI that the allegations made against the employee are not substantiated, cannot be taken as a bar for the disciplinary authority to proceed against the employee.
16. We have given our anxious and thoughtful consideration to the rival contentions of the learned counsel for parties, as noted above. Insofar as, the binding nature of the provisions contained in the Vigilance Manual is concerned, the matter is no more res integra; it stands clinched and that too between the parties to the present lis based upon binding precedents of the apex Court. It does appear to us that the provisions contained in various paragraphs of the Manual as extracted above, are a complete code taking care of every conceivable situation, which could be criminal prosecution, departmental action and any other action that may be deemed proper or appropriate by the disciplinary authority. It also appears to us that the provisions are wholesome and have a purpose behind the same. The same do appear to aim to avoid unnecessary harassment to a government employee. In fact, in our considered view, such provisions need to be made for every government employee as surely, keeping an employee under shadow for criminal prosecution, departmental action or other action, one after the other, would not be a proper administrative justice. There is indeed a need to examine the allegations against a person in all their perspective in one go. Whether the allegations have criminal propensity and the employee thus needs to be criminally prosecuted and there exists sufficient evidence to convict a person as required under criminal jurisprudence, or, if not so, whether sufficient evidence to pin down the employee in departmental enquiry, or whether some other administrative action is required, needs to be gone into in one go. We may, at this stage, refer to the relevant observations made on that behalf by the Tribunal while disposing of OA No.632/CH/200 filed by the applicant, thus:
However, to us it appears that the provision made in para 1.8 of the Vigilance Manual is wholesome and perhaps has been incorporated in public interest and to shun arbitrariness in administrative actions These observations have since been approved by the Honble High Court while dismissing the writ petition filed against the order of the Tribunal. Para 1.8 of the Vigilance Manual, while mentioning that parallel investigation by administrative Ministry/organization should be avoided, in terms states that further action by the department should be taken on completion on investigations by CBI on the basis of its report. Surely, if no action is suggested, and we may repeat and reiterate that CBI as per the duty enjoined upon it under the Manual, is not confined to find out whether a criminal prosecution is to be launched or not, it has the power and jurisdiction to suggest departmental action and, if that may also not be feasible, to take other action, then no action can be taken. Even though, the contention raised by the counsel appears to have considerable merit, the plea raised by him that the report of CBI should be taken only as an advice may not be correct, as the final report given by CBI cannot be termed as an advice sought from it, as is sought from CVC or UPSC, which certainly is not binding upon the disciplinary authority. We may yet not conclude the issue by giving a final verdict on the matter, as in our view proceedings against the applicant deserve to be dropped on the un-defendable plea of unexplained delay, which is bound to cause prejudice to the defence of the applicant if he is to be departmentally tried at this distance of time. We will deal with this issue going by the plea raised by the respondents that the inter partes judgment only deals with the situation when investigation is pending and not when the final report is given, and further that the final report by CBI is not binding upon them. It may be recalled that the incident subject matter of the impugned memorandum pertains to the year 1994-95. The respondents woke up from their deep slumber only in 2000 when they handed over the matter to the CBI in 2000, after five or six years. CBI gave its report on 28.9.2001. If it be the case of the respondents that after CBI gave its report and even though, it suggested no action to be taken against the applicant, and, yet they could proceed against the applicant, the report of CBI being not binding upon them, they then have to explain the delay in not taking any action against the applicant from 28.9.2001 till such time the present Application came to be filed, and the decision to do so came about only during the course of pendency of the OA. The records and in particular the one made available to us pertaining to the aftermath of the filing of the present Application, would show that the respondents got active in the matter only when the Application was filed. They sought legal opinion in the matter from Shri P. C. Hota, Advocate and retired Chairman UPSC and retired Secretary DOP&T. Copy of the letter dated 7.8.2008 would reveal that after filing of the present Application, the competent authority, for contemplating disciplinary proceedings against the applicant, referred the matter to Shri Hota. He rendered his opinion on 10.7.2008, which reads as follows:
As the alleged acts of misconduct mainly supervisory lapse and not bribery or corrupt practice of Sarvesh Kaushal relate to the year 1994-95 and about 14 years have elapsed since then, the chargesheet under AIS (Discipline and Appeal) Rules if served upon him at this stage is likely to be struck down by the higher judiciary on ground of inordinate and unreasonable delay, which cannot be explained properly either by the Food Corporation of India or by the Department of Food representing the Union of India. It will be graceful and in consonance of the principles of good governance, if the Union of India and the FCI submit to the Honble CAT in reply to the notice in the OA 807 of 2008 that the Union of India have dropped all charges against Sarvesh Kaushal arising out of the alleged irregularities committed by him during the Kharif procurement season 1994-95. Legal section of this officer have agreed with the above opinion adding that It was held in the matter of M. K. Chakravarty v/s State of West Bengal 1993 (1) CLJ 371 wherein, it was held that the departmental enquiry proceedings shall have to be initiated within a reasonable time, otherwise the question of enquiry/ proceeding being based on stale material and the ground of delay will arise. In Mrinal Kantis case, chargesheet was drawn based on materials relating to 18 years earlier to framing of charges and the High Court of Calcutta had no hesitation to set aside the order of the trial judge (single) in C.O. No.273(W) of 1990 relying upon the ratio of judgment in Bani Singh case. In this case i.e. State of M.P. v/s Bani Singh AIR 1990 SC 1308 the charges were relating to 12 years earlier. Apart from the above, para 1.8 Chapter-III of Vigilance Manual Vol.I (Fifth Edition) reasons as under Once a case has been referred to and taken up by the CBI for investigation, further investigation should be left to them and a parallel investigation by administrative Ministry/Department, organization should be avoided. Further action by the Department, should be taken on the completion of investigation by the CBI on the basis of their report. The contents of the letter aforesaid further reveal that on the material as mentioned above, further action in the matter was to be advised. We have already mentioned hereinbefore that in consideration of the note/letter referred to above, the three alternatives that came to be suggested, the respondents, for the first time, decided to take the memorandum dated 30.6.2000 to its logical ends by putting the applicant to a departmental enquiry. On 20.8.2008, JS & CVO made the following note:
It is pointed out by Shri Hota that after receipt of CBI enquiry report & EDs report in May 2002, FCI did not act & start disciplinary action, but went to HC & SC, even though CAT order precluded action only while CBI was still investigating. What were the grounds to go on with HC & SC appeals & delaying action on Dis. Proceedings after EDs report?
Also analyse X on p.184/c in the light of facts & paras quoted from Vig. Manual. On the same day, D.O. (Vig.) made a detailed note inter alia mentioning that the report of CBI dated 28.9.2001 was examined separately, and that while recommending RDA for major penalty against the other officials, CBI absolved the applicant from any responsibility. However, the FCI did not agree with the CBI report and on the findings of a committee of three Executive Directors of FCI, held the applicant responsible for various acts of omission and commission. On the proposal of FCI, a reference was made to CVC seeking its first stage advice in September, 2002, and subsequently on receipt of interim reply of the applicant in October, 2002, para-wise comments of FCI on his reply were sent to CVC in December, 2003. CVC advised initiation of major penalty proceedings against the applicant in January, 2004. Draft chargesheet was called for from FCI on 5.3.2004. Reference is then to order passed by the Punjab & Haryana High Court dated 9.3.2004 whereby the Union of India was directed not to proceed with the enquiry till further orders. After referring to the opinion of Solicitor General of India for filing SLP etc. and the orders passed therein, it is then mentioned that CBI submitted its report on 28.9.2001 and the question of parallel enquiry against the applicant also seemed to have ended on 28.9.2001, in accordance with para 1.8 of Vigilance Manual which stipulates that as far as possible, departmental proceedings should be held/conducted after the completion of CBI investigation. It would thus appear that the department was precluded from taking action against the applicant in view of the legal advise/various stay and other orders granted from time to time. In the meantime, draft chargesheet prepared by FCI was examined and it was asked to make corrections/modifications keeping in view the findings of CBI and the report of the committee of Executive Directors. It is mentioned that so many corrections/ modifications had been made in the draft chargesheet from time to time, but the draft chargesheet has still not been finalized and FCI was requested to incorporate some more information. Director (Vig.) on the note prepared by D.O. (Vig.) on the same very day, made the following note:
The matter discussed by by Dir. (Vig.) along with file with JS &CVO in his chamber. JS directed that the disciplinary case may not be withdrawn and FCI may be asked to defend the case. Dir. (Vig.) has spoken to Shri Mohanty, Dep Gen Manager, FCI to proceed with necessary action to defend the case. Pl. put up file as discussed. A detailed note dated 22.8.2008 then came to prepared by D.O. (Vig.), which was marked to Dir. (Vig.), who recorded the following note on 25.8.2008:
1. The purview of CBI & departmental enquiry are different. There may not be a criminal angle but there are supervisory/procedural lapses as pointed out by the Committee (three-member) of Executive Directors appointed by FCI subsequent to the CBI report. Further, in a court of law, the charges are to be proved beyond doubt, whereas in a departmental enquiry the guiding principle is preponderance or probability.
2. The FCIs recommendation based on the findings/advice of Shri P. C. Hota not to proceed with the departmental proceedings on the grounds of considerable delay does not seem to be reasonable as the delay is explained on account of various judicial proceedings as explained above, wherein Shri Kaushal himself contributed by going to CAT & High Court.
3. In view of above we may write to FCI as per DFA to defend the case in Principal Bench of CAT at Delhi. On the same day, as per note dated 25.8.2008 recorded by JS&CVO, decision was taken to defend the case by engaging a lawyer. We may not make mention of further notes as the same would not appear to be relevant.
17. What emerges from the pleadings made in the counter reply as also the records referred to above, is that after CBI had given its report on 28.9.2001, the FCI would not agree with the same and constituted a committee of three Executive Directors, which held the applicant responsible for various acts of omission and commission. On the proposal of FCI, reference was made to CVC seeking its first stage advice in September, 2002. subsequently on receipt of interim reply of the applicant in October, 2002, para-wise comments of FCI on his reply were sent to CVC in December, 2003, and CVC advised initiation of major penalty proceedings against the applicant in January, 2004. Draft chargesheet was called for from FCI on 5.3.2004, which required corrections/modifications. The matter stood at that till such time the present Application came to be filed, and now, for the first time, decision has been taken on 20.8.2008, reiterated later on 25.8.2008. To sum up and in short, the plea raised by the respondents in explaining the delay is that even though, when the respondents did not agree with the report of CBI, they proceeded in the matter in the manner referred to above, but could not go ahead with the case because of the conduct of the applicant in involving the department in court cases, first in the High Court and then in the Supreme Court. One would be distressed to note such a plea in face of the positive stand taken by the respondents that the judgments of the Tribunal and the High Court were of no relevance whatsoever in the aftermath of submission of the report by CBI. Was there any stay obtained by the applicant so as not to proceed against him departmentally on the basis of court decisions in his favour dealing with the situation when CBI was conducting investigation, and by pleading that even after the report of CBI, the department could not proceed against him? While making mention of the developments in the court case in the counter reply filed on behalf of the 1st and 2nd respondents, it has been pleaded that the department filed an appeal in the Punjab & Haryana High Court against the orders of the Tribunal dated 4.7.2001 and 22.7.2002, and the High Court stayed the orders of the Tribunal vide order dated 20.9.2002. The department thereafter referred the disciplinary case against the applicant to CVC vide OM dated 1.1.2004, which advised initiation of major penalty proceedings against the applicant. The applicant, however, filed an application for vacation of the stay and the High Court vide order dated 9.3.2004 directed the Union of India not to proceed with the enquiry till further orders. Mention is then of steps taken in getting the order of stay vacated. The respondents then appear to have in a way blamed the Court in granting adjournments, and ultimately dismissing the writ petition. Once, the operation of the order passed by the Tribunal was stayed by the High Court vide order dated 20.9.2002, nothing prevented the respondents to proceed against the applicant during the period between 20.9.2002 and 9.3.2004. Insofar as, the stay granted by the High Court on 9.3.2004 is concerned, it is quite apparent that the same was not on the plea raised by the applicant that even after CBI had given its final report on 28.9.2001, the respondents would be prevented to proceed against him. The respondents have not placed on records the application moved by the application seeking stay nor the order passed by the High Court. A clear impression can be gathered from the pleadings and accompanying records that the order not to proceed against the applicant was passed under the impression that CBI was still conducting the investigation. Learned Sr. Counsel representing the applicant has shown to us copy of the writ petition filed in the High Court. We do not find any pleadings made therein that may even mention with regard to submission of the final report by CBI and the plea raised by the respondents that after receipt of the same, they could proceed against the applicant. In fact, it would appear from para 20(ii) reproduced hereinbelow that the respondents were labouring under the impression that the Tribunal had debarred them to proceed against the applicant even after the report of CBI was to be received:
(ii) issue a writ of certiorari for quashing the impugned order dated 4.7.2001 Annexure P-4 and the impugned order Annexure P-8 dated 22.7.2002, passed by the Learned Central Administrative Tribunal, Chandigarh Bench, directing the Petitioner-Department to keep the departmental proceedings in abeyance till the submission of report by the C.B.I. and thereafter also to proceed in the departmental/preliminary inquiry only on the basis of the said report; The respondents have also not brought on record the application made by the applicant seeking stay so as to show that any pleadings were made by him so as not to proceed against him even after the CBI report, and as mentioned above, even the order passed by the Court has not been produced. There does not appear to be any mention of the final report of CBI and the contention raised on that behalf during the course of hearing before the High Court that the respondents after receipt of the report of CBI would be within their right to proceed against the applicant. It appears that for the first time in the Supreme Court only, the respondents referred to the report of CBI, without, however, mentioning as to when that report had come into being. The learned counsel appearing on behalf of the respondents made a statement that in view of the final report submitted by CBI, the respondents would seek permission to withdraw the SLP. It is quite apparent that the stay granted by the High Court was in the context of right of the respondents to resort to simultaneous proceedings. Be that as it may, the writ petition came to be dismissed on 29.7.2005. The respondents would do nothing in the matter and would attribute the period spent by them in filing the SLP in the Supreme Court to the applicant stating that it is he who was at fault in preventing the respondents from taking any action. Even after dismissal of the SLP, they would do nothing. The SLP came to be dismissed on 5.7.2006. The decision to take action against the applicant, as mentioned above, came about only on 20.8.2008, reiterated on 25.8.2008, after the applicant filed the present Application. It appears to us that had the applicant not filed the present Application, his file would have remained in the archives of the department, never to be dealt with. The unexplained delay in departmentally proceeding against the applicant in the context of the allegations against him appears to us to be fatal. It may be recalled that in the memorandum dated 30.6.2000, the primary allegation against the applicant pertained to lack of supervision. No doubt, in the memorandum as such, there are overtones and undertones of complicity of the applicant indirectly though, in misappropriation of the stocks of FCI. However, after the report of CBI and even as per the case that now emanates from various notes as referred to above, it is the supervisory lapses for which the applicant is to be tried departmentally. Would the applicant at this distance of time be able to remember all the steps he had taken in supervising the whole affair, despite which FCI suffered losses? It appears to us that it would be extremely difficult, if not impossible, for the applicant to defend himself at this stage.
18. Shri Gupta, learned counsel for the respondents, being faced with the facts as fully detailed above, would still endeavour this Court to hold that the matter may not be given a quietus only on unexplained delay on the basis of some judicial precedents. In that connection, reference is made to the judgment of the Honble Supreme Court in Government of Andhra Pradesh v V. Appala Swamy [2007 (3) SCALE 1], wherein it is held that there are no hard and fast rules pertaining to delay in concluding departmental proceedings, and that each case would depend upon its own facts. Indeed this is the law, but in our considered view, the facts and circumstances of this case are such that the department should not be permitted to proceed against the applicant at this stage. Even though, the law is such as held by the Apex Court in V. Appala Swamy, in all fairness, we must refer to the other judgments relied upon by the learned counsel as well. He has placed reliance upon Deputy Registrar, Cooperative Societies, Faizabad v Sachnidra Nath Pandey & Others [(1995) 3 SCC 134]. The facts of the said case reveal that charges against the employee were very serious, i.e., misappropriation and absconding with official records. Sixteen years had gone by from the date of commencement of departmental enquiry. It is in the facts of the said case that it was held that elapsing of a long period when the department was not responsible for the delay, would not be fatal. The counsel has also relied upon judgment of the Honble Supreme Court in State of Punjab & Others v Chaman Lal Goyal [1995 (2) AISLJ 126] and a judgment of the Punjab & Haryana High Court in Jagbir Singh v Food Corporation of India & Others [2002 (4) Service Cases Today 943]. There would be no need to give facts of the cases relied upon by the learned counsel. Suffice it may be to mention that the same have no parity with the facts of the present case. We need not cite precedents in support of the plea that unexplained delay which may cause prejudice to an employee is normally fatal. Of course, the court has also to see the nature of charges while examining the cause of the unexplained delay. As mentioned above, what survives against the applicant is the only allegation of supervisory/procedural lapses, for which, in our considered view, he should not be proceeded against at this distance of time. It may be recalled that Shri P. C. Hota, while rendering his legal opinion, clearly mentioned that the alleged acts of misconduct were mainly supervisory lapse and not bribery or corrupt practice, relating to the year 1994-95. Legal section of FCI itself agreed with the opinion of Shri Hota. Further, from the notes which have been referred to and reproduced above, it would be made out that while disagreeing with the CBI report, the three-member committee found the applicant responsible for various acts of omission and commission. It is nowhere stated that the said acts of omission and commission related to connivance of the applicant with millers in misappropriating the stocks of FCI. In one of the notes, at the most, what is found is that the three Executive Directors committee found few instances that established that the applicant had full knowledge of the misappropriation of paddy by the millers in his region, and that he did not lodge the FIRs in the matter. Even if one is to go by this allegation, there is no direct involvement of the applicant in misappropriating the stocks, and it would be more in the nature of supervisory/procedural lapses. The note dated 25.8.2008 would further reveal that the surviving allegation against the applicant would be of supervisory/ procedural lapses, as pointed out by the said committee. It is clearly recorded therein that the purview of CBI and departmental enquiry would be different, and that there may not be a criminal angle but there are supervisory/procedural lapses as pointed out by the committee. In the note dated 25.8.2008 favouring or ordering action against the applicant, the allegation against the applicant is of supervisory/procedural lapses. Of course, the legal advise either of Shri P. C. Hota, Advocate, who happened to be retired Chairman UPSC and retired Secretary DOP&T, or that of legal section of FCI, is not binding upon the respondents, but there should be reason to differ with the same, and we may reiterate, the only reason to differ is that the applicant is to be blamed for causing delay in the matter. This plea, we have already held, cannot possibly be digested in the facts and circumstances of the present case.
19. We find considerable merit in the contention of Shri Khurana, learned Sr. Advocate that Shri P. Shankar should not have tendered opinion or given advice to proceed against the applicant as CVC, when he had admittedly dealt with the case of the applicant at the most crucial time when memorandum dated 30.6.2000 came to be issued to him. It may be recalled that Shri P. Shankar was in position as Secretary of the respondent Ministry from 31.5.2000 to 2.11.2000, and it is on 30.6.2000 that the impugned memorandum came to be issued to the applicant. It is no doubt true that the matter already may be under consideration, but as mentioned above, the memorandum came to be issued at a time when Shri Shankar was in position. The propriety demanded him to recuse himself from giving any advice in the matter as CVC. It was against the principles of natural justice for him to have tendered any advice, even though it may be legally permissible. While doing administrative justice, one should be governed by the same principles as may be followed while dealing with the issue on judicial side, and if a judge may recuse himself from hearing a matter in which he might have tendered any advise, even though at the time when he was a lawyer, the administrator also has to follow the same procedure. Justice must not only be done but should also appear to have been done.
20. Before we may part with this order, we may mention that all through during the course of arguments, Shri T. C. Gupta was at pains to mention that CBI had conducted investigation only with regard to two districts, i.e., Bhatinda and Gurdaspur, whereas the allegations against the applicant pertained to as many as seven districts, of course, including Bhatinda and Gurdaspur. We may mention that the misappropriation/shortage in the district of Bhatinda was to the tune of 19080 MT, whereas in the district of Gurdaspur the same was to the tune of 16500 MT. In other districts, the misappropriation/shortage was far less, the maximum being 7673 MT in Amritsar. CBI had made investigation with regard to the districts where alleged misappropriation/shortage was the maximum. It is not the case of the respondents that the evidence with regard to districts not under investigation by CBI was different than for the districts for which investigation was made. Further, during the course of the first OA filed by the applicant and in the High Court, the respondents were candidly told to supply any information that they may have with them to CBI, and it was, therefore, open for the respondents to mention to CBI to make enquiry into other districts as well.
21. In view of the discussion made above, we allow this Application with the direction to the respondents to close the memorandum dated 30.6.2000. In consequence of the direction as mentioned above, we further direct the respondents to remove the name of the applicant from the list of tainted officers, as also to consider him for empanelment as Joint Secretary from the date he was due for such consideration, which is stated by the applicant to be 2001. In the peculiar facts and circumstances of the case, however, costs of the litigation are made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/