Central Administrative Tribunal - Delhi
Prem Prakash S/O Late Shri Bal Mukand vs Union Of India Through Secretary To The ... on 14 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application 89/2009
Date of Order : 14.12. 2011
CORAM:
HONBLE DR. K.B. SURESH, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
Prem Prakash S/o Late Shri Bal Mukand, aged about 64 years, R/o A-116, Kamla Nehru Nagar, IInd Extension, Opposite Somani Commerce College, Ist Pulia, Jodhpur, last employed on the post of Divisional Engineer Telecom Sojat, Office of G.M.T.D.,District Pali.
..Applicant.
By Mr. J.K. Mishra, Advocate.
Versus
1. Union of India through Secretary to the Government of India, Ministry of Communication and Information Technology, Department of Telecom, Sanchar Bhawan, 20 Ashoka Road, New Delhi.
2. Chief General Manager Telecom, Rajasthan, Telecom Circle, Jaipur.
Respondents.
By Mr. Kuldeep Mathur, for Respondent no.1.
By Mr. V.D.Dadhich for Mr. N.M. Lodha, for Respondent No.2.
ORDER
[PER SUDHIR KUMAR, ADMINISTRATIVE MEMBER] The applicant of this OA is before us, aggrieved by the orders of the major penalty of cut in pension ordered by the respondent-authorities. He has, therefore, prayed for the following reliefs :-
8(i) That impugned charge sheet dated 10.9.2003 (Annex.A-1), penalty order dated 20.09.2006 9.4.2009 .. (Annex.A/2), imposing the penalty of five percent cut in pension for a period of three years, appellate order dated 17.8.2007 (Annexure A/3), rejecting the appeal and order dated 17/19.4.2008 (Annexure A/4), rejecting the revision petition, may be declared illegal and the same may be quashed. The respondents may be directed to grant all consequential benefits including payment of amounts deducted / not paid, along with interest at market rate as if none of the impugned orders were ever in existence.
(ii) That any other direction, or orders may be passed in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.
(iii) That the cost of this application may be awarded. 2- The applicant entered into service on 15.2.1969 as a Engineering Supervisor, and retired from service on 28.02.2005 as a Divisional Engineer, Telecom. During the period from 23.03.1998 to 05.07.2002, when the applicant was posted as Divisional Engineer (Planning) in the Office of the General Manager, Telecom District (GMTD in brief) at Pali, some delinquency on his part was alleged in one of the incidents. Agreeing with the Central Bureau of Investigation and the Department of Telecom, the Central Vigilance Commission (CVC) through Central Vigilance Commission (CVC) letter dated 17.02.2003, Annex.A/5, advised launching of criminal prosecution in that incident against three persons, and also advised initiation of disciplinary inquiries for major penalty against 8 persons, including the applicant (at Sl. No. 7). The same CVC memorandum further advised the case being closed against one official, and asked the Department of Telecom to appoint their own Inquiry Officer to conduct oral inquiries in respect of the major penalty proceedings, and to revert to the Central Vigilance Commission in due course for II stage advise. This memorandum was signed by Shri R.L. Banerjee, Director in the Central Vigilance Commission, and was addressed to Shri G.S. Grover, Senior Deputy Director General (Vigilance), Department of Telecom, New Delhi.
3- Thereafter, the issuance of the Memorandum dated 10.09.2003 (Annex.A/1) followed, whereby the Assistant Director General of the Vigilance Wing, Department of Telecommunications had informed the applicant as follows :-
No. 8-98/2003-Vig.II Government of India Ministry of Communications & Information Technology Department of Telecommunications (Vigilance Wing) West Block-1,Wing-2, R.K.Puram,New Delhi-66 Dated 10-9-2003.
MEMORANDUM The President proposes to have an inquiry held against Shri Prem Prakash, (staff No. 6482), DE, Rajasthan Telecom Circle under Rule 14 of the CCS (CCA) Rules, 1965. A substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annenxure I). A statement of the imputations of misconduct or misbehavour in support of each article of charge is enclosed (Annexure II). A list of documents by which and a list of witnesses by whom the article of charge are proposed to be sustained are also enclosed (Annexure III & IV). A copy of the first stage advice of CVC for instituting major penalty proceedings against Shri Prem Prakash is also enclosed.(Emphasis supplied).
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(S.D.KAUSHIK) Assistant Director General (VT) 4- This Memorandum was accompanied with the Articles of Charges and a statement of imputation of misconduct or misbehavior in support of the Articles of Charges framed against the applicant, as well as the list of documents and the list of witnesses through whom and by whom the articles of charges were proposed to be sustained.
5- The applicant submitted his statement of defence, denied the charges levelled against him, and requested for being heard in person. Accordingly, the Department appointed the Superintending Engineer (Civil), Telecom Civil Circle, Jodhpur, as the Inquiry Officer, and the Divisional Engineer (South West), Jodhpur, as the Presenting Officer, respectively, through an order dated 25.11.2003. The applicant was also allowed to take the help of the services of a Defence Assistant in the inquiry. Subsequently, the Inquiry Officer was changed through an order dated 09.09.2004. During the inquiry proceedings 32 documents were produced on behalf of the prosecution and 10 documents were produced on behalf of the defence. Moreover, 20 witnesses were produced from the side of the prosecution, and two witnesses appearing on behalf of the applicant for examination, and the applicant himself, were also subjected to general examination, even though the applicant did not produce himself as a defence witness. The oral inquiry was concluded on 11.01.2005, and the written briefs on behalf of the Presenting Officer, as well as the applicant as the delinquent official, were submitted on 19.02.2005 and 16.02.2005 respectively. Later, the applicant was supplied with a copy of the Memorandum of the purported Disciplinary Authority, through letter dated 19.05.2005, Annex.A/6. The beginning portion of the Memorandum stated as follows :-
Government of India Ministry of Communications & Information Technology Department of Telecommunications (Vigilance II Section) 915,Sanchar Bhawan, 20,Ashoka Road, New Delhi 110 001.
Dated the 19-5-2005.
MEMORANDUM A copy of the Inquiry Report dated 22.03.2005 submitted by Shri T.K. Parihar, SE (Elec.), Jodhpur, who had been appointed as the Inquiring Authority to inquire into the charges framed against Shri Prem Prakash DE, Rajasthan Telecom Circle, Jaipur is forwarded herewith. A copy of ID Note No. 002/P&T/233/7947/8130 dated 27th April, 2005 of the Central Vigilance Commission (CVC), is also forwarded herewith.
Although the IO has held the charge as not proved, the Disciplinary Authority proposes to disagree with the findings of the IO to the following extent :
It is observed that there is adequate evidence on record to held the charge as fully proved. The Charged Officer had knowledge that both the cables were laid in the same trench as revealed by S-24. There is also evidence on record through the witnesses that both the cables were laid together in the same trench but the Charged Officer made payments as if the two works were executed separately. When the charged had knowledge of these facts, he should have thoroughly investigated the matter before processing the bills for payment.
That the said Shri Prem Prakash, DE is hereby informed that he may make such representation as he may wish to make in the matter. Such representation, if any, shall be made in writing within 10 (ten) days of the receipt of this Memorandum, failing which it will be presumed that he has no representation to make, and further necessary action in the matter is liable to be taken accordingly.
The receipt of this Memorandum, alongwith a copy each of the Inquiry Report and CVCs advice, shall be acknowledged by Shri Prem Prakash, DE.
By order and in the name of the President.
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(A.K.Patro) Desk Officer (Vig.II). (Emphasis supplied).
6- In the enclosed 16 page report of the Inquiry Officer, he had come to the conclusion that all the articles of charges were held as not proved. However, along with this, a copy of the CONFIDENTIAL Note dated 27.04.2005, (page 55-A of the O.A.) signed by one Shri Yogesh, Director of the Central Vigilance Commission, addressed to Shri G.S. Grover, Senior D.D.G.(Vig.), Sanchar Bhawan, Ashoka Road, New Delhi, was also enclosed and sent to the applicant. The last paragraph of the Inquiry Officers report, and the CVC Officers Note are reproduced below :-
A. The case of prosecution has failed to prove that the CO was having specific knowledge or regarding exhibit S-24. The exhibit S-24 neither indicates that UG cable was laid in the AOFC trench before refilling of the trench after laying of AOFC nor it indicates that UG cable was laid after redigging of existing AOFC trench but here inferences can be drawn that there may be irregularity on the part of concerned persons of UG cable work as SDE (TF) who is in charge of AOFC work has written this letter (S-24) to SDE (GE) who is in charge of UG cable work. If both the cables were found laid together at same time the communication should have been addressed to the concerned persons of AOFC work also. Therefore there are genuine reasons to believe that it was not proved that the UG cable and AOFC were laid at same time by digging only one trench. It is not possible for the CO to put any remarks in the contractors bills / MBs regarding deduction of any amount for the work not done as per specification of tender when such bills / MBs are duly verified and certified by the concerned field officers and no adverse nothing was made by Dealing Assistant, SS, AAO, SDE, AO. The case of prosecution in respect of UG cable laid together with AOFC in one and same trench at some distance at Marwar Jn. Dudore route has also failed as prosecutions witnesses SW-09, SW-11, SW-12, SW 19 deposed that the AOFC cable work at the location in question was already completed and UG cable work was being done by re-digging the trench of AOFC. In view of the above facts, charges cannot be held as proved.
FINDINGS : Articles of charges for the Contractors Bills processing part Held not proved. Therefore it is held that all the articles of charges are held not proved.
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(P.K.Parihar) InquiryAuthority, Superintending Engineer (E) BSNL,Jodhpur. CONFIENTIAL B. CENTRAL VIGILANCE COMMISSION Sub : Case against Shri Prem Prakash, DE, Rajasthan Telecom Circle, Jaipur.
Ref:DoTs File No. 8/98/2003-Vig.II dated 11/04/2005.
The Commission has perused the inquiry report, along with its relevant records, and the comments of the administrative authorities thereon. It does not agree with the findings of the inquiring authority. It appears with the findings of D/o Telecom that charges against Shri Prem Prakash, DE are Proved as there are adequate evidence on record that Charged Officer had knowledge that both the cables were laid in the same trench as sper Ex S-24 and this evidence also reveals through deposition of witnesses but Charged Officer made payment as if wo works were executed separately. When Charged Officer had knowledge of these facts, he should have thoroughly investigated the matter before processing the bill for payment. It would advise imposition of a suitable major penalty on Shri Prem Prakash, DE.
All the records of the case as received in the Commission are returned herewith. Its receipt may please be acknowledged. Action taken in pursuance of Commissions advice may also please be intimated within a month of the receipt of this communication.
(Yogesh) Director Encls : as above Department of Telecom (Shri G.S.Grover, Sr.DDG(Vig.),Sanchar Bhawan Room No. 909, 20 Ashoka Road, New Delhi.
CVC I.D. Note No. 002/P&T/233/8130/dt.27.04.05.
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(Yogesh) Director 7- A perusal and comparison of the Memorandum dated 19.05.2005 Annex.A/6, signed by Shri A.K. Patro, the Desk Officer (Vigilance-II), Department of Telecommunication, as the purported Disciplinary Authority, and the advise of the Director of the Central Vigilance Commission, dated 27.04.2005, (as have been cited above) makes it obvious that the Memorandum of the purported Disciplinary Authority at Annex. A/6 dated 19.05.2005 had followed and reproduced the exact wordings as contained in the Confidential Note dated 27.04.2005 of the Director of the Central Vigilance Commission. The applicant has cited the Department of Personnel & Training Circular dated 27.11.1995, issuing specified instructions under Rule 15 of the CCS(CCA)Rules, 1965, that when the Disciplinary Authority takes a contrary view after the Inquiry Authority holds a charge as not proved, the reasons for such dis-agreement must be communicated in brief to the charged officer along with the report of the inquiry, so as to enable him to make an effective representation. The applicant has submitted that the Memorandum dated 19.05.2005 Annex.A/6 only indicates the point of dis-agreement with the Inquiry Officers findings of the charges not having been proved, but not the effective reasons for such a disagreement, inasmuch as it had not been specified as to why the evidence, which has been held to be in-adequate evidence by the Inquiry Officer, was considered to be adequate, and in what way Inquiry Officer did not take such evidence into account, or ignored, or missed that, or incorrectly appreciated it.
8- The applicant has submitted that the law makers have clearly intended that the reasons for disagreement by the Disciplinary Authority with the findings of the Inquiry Officer should be supplied to the charged officer in such a manner that he would be in a position to be able to make an effective representation. But, in the instant case, due to non-suppliance of the reasons for the disagreement with the conclusions / report of the Inquiry Officer, the applicant was faced with an over-whelming confusion and had no option but to reply only in response to the inadequate details of the alleged adequate evidence, for which he sought the details and submitted a detailed representation vide letter dated 16.6.2005, Annex.A/7, even though he had retired nearly four months prior to that.
9- The applicant has submitted that he was not furnished with any detailed / specific reasons for dis-agreement by the purported Disciplinary Authority, as requested by him, through his representation dated 16.06.2005, Annex.A/7, treating that itself as the final reply, the purported Disciplinary Authority held a portion of the charge to be held as proved as against him, to the extent that being Overall In-charge of the Division, he was expected to be aware of the happenings in the Division, although, it was on record that he was on leave / training at the relevant time. The order of imposition of penalty dated 20.09.2006 Annex.A/2, was served upon him, signed once again by Shri A.K. Patro, Desk Officer (Vigilance-II), Department of Telecommunication, Sanchar Bhawan, Ashoka Road, New Delhi. Enclosed along with that was also the opinion of the Union Public Service Commission dated 18.07.2006, running into six pages, which had also been obtained by the Department in the matter in the meanwhile.
10- The applicant, thereafter, submitted a detailed appeal, addressed to the President of India, dated 14.12.2006, Annex.A/8, running into 11 pages. However, his appeal was also rejected through an order dated 17.08.2007, Annex.A/3, which runs into three and a half pages, and has been signed by one Shri Niraj Kumar, Director (VP), Ministry of Communications & IT, Department of Telecommunications, Vigilance Wing, Sanchar Bhavan, Ashoka Road, New Delhi, stating as follows :-
No.1-10/2007-Vig.III Government of India Ministry of Communication & IT Department of Telecommunications (Vigilance Wing) ORDER Dated 17.08.2007 Shri Prem Prakash, DE (retd.), Rajasthan Circle has submitted an appeal dated 14.12.06 against the penalty of five percent cut in pension for a period of three years imposed by Honble President vide order no. 8-98/2003-Vig.II dated 20.09.06.
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8. After examination of all the facts & circumstances of the case, Honble President has ordered that appeal dated 14.12.06 submitted by Shri Prem Prakash, DE (retd.), Rajasthan Telecom Circle is devoid of merits and thus stands rejected.
9. By order and in the name of Honble President.
[NIRAJ KUMAR] DIRECTOR (VP) [Emphasis supplied] 11- The applicant then submitted his revision application, again addressed to the President of India, through Annex.A/9 dated 02.11.2007, which again runs into 9 pages, but, his revision petition was also rejected through the enclosure to the letter dated 17/19.04.2008, Annex.A/4, signed by Shri N.S. Mathur, AGM (Vigilance), BSNL, Jaipur, enclosing a letter dated 4.4.2008, signed by Shri Anup Singh, S.O. (Vigilance-III), Department of Telecommunications Sanchar Bhavan, Ashoka Road, New Delhi, stating inter alia, as follows :-
No.1-10/2007-Vig.III Government of India Ministry of Communication & IT Department of Telecommunications (Vigilance Wing) Room No. 914,Sanchar Bhavan, 20-Ashoka Rd,New Delhi 110 117.
Dated 04.04.2008.
To Shri Prem Prakash DE (retired), Rajasthan Circle, Jaipur.
(through O/o CGMT, Rajasthan Circle, Old CTTC Bldg, Jhalana Institutional Area, Jaipur 302 004.
Sub : Revision petition filed by Shri Prem Prakash, against the appeal rejected vide order no. 1-10/07-Vig.III dated 17.8.07.
Sir, Kindly refer to your revision petition dated 2.11.07, addressed to Honble President, against appellate order no. 1-10/07-Vig.III dated 17.8.07.
2. The penalty on you has been imposed by the Honble President As the appeal filed by you has already been reviewed by Honble President vide order No. 1-10/07-Vig.III dated 17.08.07, no revision petition is admissible in the case.
3. This is for your information.
Yours faithfully, (Anup Singh) S.O.(Vig.III) [Emphasis supplied] 12- The applicant has submitted that while the purported Disciplinary Authority has held element (a) of the charge to be proved, to the extent of the applicant being over-all Incharge of the Division, he was expected to be aware of the happenings even if he was on leave/training. Further, the element (b) of the charge has also been held by the purported Disciplinary Authority as proved, and it has been stated that it is held as proved as per the advise of the Union Public Service Commission and the Central Vigilance Commission.
13- In paragraph 10 of his OA., the applicant has mentioned that he was communicated with the dis-agreement of the purported Disciplinary Authority only on the element (b) of the charge, and that too without any specific reason being assigned for the same, and only against that dis-agreement communication he had made a representation. But, in respect of element (a) of the charge, the applicant was not communicated even the disagreement of the purported Disciplinary Authority, and, therefore, the question of communication of any response to the reasoning or logic for the dis-agreement of the purported Disciplinary Authority, or the applicant making a representation properly against the same, did not arise.
14- He has further stated that even the Office of the Central Vigilance Committee Commission only okeyed the comments of the Department of Telecom, which related to the element (b) of the charge, and otherwise also, none of the points raised by the applicant in his representation had been considered, and the order of penalty was passed by the purported Disciplinary Authority in a mechanical way, with closed mind, and may be to please the CVC, since the departmental enquiry case was instituted as per their advice only. The applicant has submitted that it is a case of no evidence, and suspicion, howsoever strong, cannot be allowed to take the place of evidence, or verifiable/concrete proof of wrong doing.
15- He has further submitted that following the advise of the Union Public Service Commission as it is, and stating that the points of dis-agreement of the purported Disciplinary Authority on the element of charge should be read as part and parcel of the charge against him, was incorrect, as the applicant has thus been denied an opportunity to make a representation against the purported Disciplinary Authoritys point of dis-agreement, which is fatal to the disciplinary proceedings.
16- He has further submitted that the whole episode started with the advise dated 15.03.2001 issued by one Shri A.T. Thomas, SED (Task Force), Pali-Marwar, in which it had been stated that when in the field he had inspected the work done for the laying of the Optical Fibre Cable (OFC) route, he had found that apart from laying the Optical Fibre Cable in the Trench, and closing it with a stone, the local cable also was being laid in the same trench at four feet depth, and if, in future, the Optical Fibre Cable comes in fault, then, while undertaking repairs, a confusion might arise between the Optical Fibre Cable and the local cable laid at four feet depth, and that there would be chances of the local cable being cut also. He had in the second paragraph of his advise mentioned that in future, if any such OFC work is being done, then it should be brought to his notice, so that he can put into service the local line inspecting staff also, and the local cable can be put at the appropriate depth of 3 feet only. It was further enquired that in that same route, the point from where to where the local cable has also been laid in the Optical Fibre Cable Trench should be informed to him, so that he can take care at the time of jointing of the cables. The applicant had submitted that the charges framed against Shri B.L. Chouhan, as Divisional Engineer (Planning), Office of the General Manager, Bharat Sanchar Nigam Limited, Pali (Annex.A/11), arising out of the same incident, were much graver than the charge against him, but, Shri Chouhan had since been exonerated of the charges, while the applicant has been punished, even after he has retired, on much lesser charges.
17- The applicant has assailed this as hostile discrimination due to extraneous reasons and considerations, and has said that he has been made a scape-goat, even though the Inquiry Officer himself had held that the charge against the applicant was not proved. He assailed the impugned orders because the purported Disciplinary Authoritys dis-agreement was communicated to him in respect of element (b) of the charge, but, without giving any reasons for such dis-agreement, and thus denying him a reasonable opportunity to defend his case. He has also assailed the impugned orders because the purported Disciplinary Authority has ultimately also held element (a) of the charge as proved, inspite of the fact that in respect of that portion of the charge, not even a dis-agreement note of the purported Disciplinary Authority was communicated to him, and thus, obviously, he had never been given any opportunity to make a representation against the same. The applicant has sought shelter under the Apex Court ruling in Punjab National Bank Vs. Kunj Bihari Mishra, 1998 SCC (L&S) 1783, stating that such action is bad in law, because of denial of reasonable opportunity to him to defend his case.
18- He had further assailed the impugned orders on the ground that the concept of holding a person responsible even for the periods of his absence from his duty, when he had handed over officiating charge of the post to somebody else, is alien to service jurisprudence.
19- The applicant further sought protection under the orders of Honble Supreme Court in S.N. Mukherjee Vs. Union of India and Ors.: AIR 1990 SC 1984, and submitted that when the points raised by the delinquent employee had not been considered, and had been only cryptically answered, by merely mentioning that they had been considered, such a non-speaking order cannot be sustained in law. Alleging hostile discrimination and violation of his rights under Article 14 of the Constitution of India, the applicant prayed for the OA to be allowed and the impugned orders to be quashed.
20- In their reply dated 30.3.2010, filed through Shri Kuldeep Mathur and Shri D.S.Sodha, Advocates, the respondents submitted as follows :
4.6. It is submitted that in the present case the disciplinary authority had found that there was evidence on record to prove the culpability of the applicant which the Inquiry Officer did not take cognizance. The CVC also applied its own mind and wisdom and found out that the evidence proves the involvement of the applicant in the irregularity. It is submitted that with regard to the version of the applicant that the CVC dittoed the disagreement proposal of the disciplinary authority, it is submitted that it is a mere coincidence because the opinion of the disciplinary authority and the CVC were in tandem. (Emphasis supplied).
21- In reply to Para No. 4.9 of the OA, it was further submitted by the respondents that the applicant was duly furnished with the detailed reasons for the dis-agreement of the Disciplinary Authority, along with the evidence for that. But, the reply as filed did not mention as to what detailed reasons were given for the Disciplinary Authoritys dis-agreement, and what supporting reasoning, logic, or evidence for such dis-agreement was furnished.
22- In reply to Para No. 4.10 of the OA it was submitted as under :
. The disagreement proposed by the disciplinary authority was considered independently by the CVC, who agreed with the same because it was supported by the evidences on record. It is submitted that the representation to the disagreement memo was considered by the disciplinary authority and the advice of the Union Public Service Commission, which is a constitutional body was also taken. The Union Public Service Commission, which is an independent body under the Constitution of India, had perused the entire record of the case and tendered a detailed advice in the matter. It is submitted that the disciplinary authority considered the same and arrived at its own decision with due application mind and decided to accept the advice the Union Public Service Commission and have rightly imposed the penalty. It is submitted that there is neither any illegality in the same nor there has been violation of any of the principles of natural justice and the procedure prescribed in the statutory rules. (Emphasis supplied).
23- It was further submitted by the respondents that the points raised by the applicant in his appeal were duly examined by the competent authority with reference to the records of the case, and the appeal was rejected by stating as follows :-
4.11 .. the point raised in the appeal were duly examined by the competent authority with reference to the record of the case and the appeal was rejected as the applicant had failed to bring out to notice of the competent authority any new material or evidence which could effect (sic affect) the penalty imposed on him. 4.12. as the penalty on applicant was imposed in the name of Honble President, the revision petition was not admissible in the case. As per Govt. of India instruction No. 3 below Rule 29 of CCS (CCA) Rules, 1965, original punishing authority is not competent to revise or cancel its own orders and the power to revise means the power to revise the order of subordinate authority. (Emphasis supplied).
24- The reply to Para No. 4.12 of the O.A. was submitted by stating as follows :-
As the penalty on applicant was imposed in the name of Honble President, the revision petition was not admissible in the case. As per Government of India Instruction No. 3 below Rule 29 of CCS (CCA) Rules, 1965, original punishing authority is not competent to revise or cancel its own orders and the power to revise means the power to revise the order of subordinate authority. (Emphasis supplied) 25- It was further denied that different yardsticks have been applied and discrimination has been meted-out to the applicant. It was submitted that the competent authority took decisions in respect of each disciplinary case separately, based on the evidences and the culpability of the involved persons.
26- In reply to the grounds, it was mentioned as follows :-
All the procedures as laid down in the statutory rules along with the principles of natural justice were duly followed by giving sufficient and reasonable opportunity to the applicant. 27- It was further submitted that the disciplinary authority acted within its powers by providing sufficient and reasonable opportunity to the applicant, and that there was no infringement of his rights under Articles 14 and 16 of the Constitution of India.
28- It was further submitted that the Disciplinary Authoritys disagreement memo conveyed to the applicant was a well-reasoned communication, with the supporting evidence. The representation submitted by the applicant was also considered, and the statutory advice of the UPSC was also obtained by the Disciplinary Authority. Subsequently, the Disciplinary Authority applied its wisdom, and took its own decision to impose the impugned penalty. Hence there was no illegality in the same, since all the principles of natural justice were followed in this case. In the result it was submitted that in the facts and circumstances of the case, the relief as sought for by the applicant is not justified, and the O.A., being devoid of merit and substance, merits dismissal with costs. The reply was filed under the signature of Shri M.C. Meena, Deputy CCA (U.S.O.)in the Office of CCA, Jaipur, who ostensibly works under respondent No. 2 Chief General Manager, Rajasthan Telecom Circle, Jaipur, 29- The applicant filed a rejoinder on 20.04.2010. In this, through para 4.13 he pointed-out that Annex. A/10 clearly indicates that the local cable was laid over the stones, that means it may have been the place where earlier the OFC was laid, and the trench was closed, but, the local cable was laid over those stones after digging the trench again. In any case, he submitted that it was nowhere mentioned in the findings of the respondent authorities that the digging of the trench was done only once, and even the author of Annex. A/10 had himself verified the OFC Trench walls to the extent of 50% of its length in the concerned sector, and had not pointed out any irregularity as such, and he himself had also been left scot-free in the disciplinary inquiry against him at appeal stage. It was further submitted that the applicant was only working in the office, and he could have had no knowledge regarding the irregularities in the field.
30- On 27th January, 2011, another affidavit was filed by the respondents, again purporting to be on behalf of respondent No. 2, by another official, Shri A. Thomas, SDE (Pay), Bharat Sanchar Nigam Limited, Pali, the author of Annexure A-10, whose name had been specifically mentioned by the applicant in his OA/rejoinder, and against whom also major penalty disciplinary proceedings had been initiated, on the suggestion of the CVC dated 17.2.2003, Annex.A/5, as one of the co-accused alongwith the present applicant.This affidavit was filed through another Advocate, Shri V.D.Dadhich.
31- It was stated in this second/additional affidavit that the respondent No. 2, CGM Telecommunication Rajasthan Circle, Jaipur, works under the control of Bharat Sanchar Nigam Limited, in short called BSNL, while the applicant was an employee of the Union of India (Department of Telecommunication). It was further submitted that by way of this OA, the applicant has challenged the order dated 20.09.2006, (Annex.A/2),passed by the Disciplinary Authority, who is also an employee of the Union of India, and that the applicants appeal before the Appellate Authority was also considered and decided by the Director (VP) Department of Telecommunications, Government of India, vide his order dated 17.08.2007, (Annex.A/3), and his Revision Petition was also dismissed vide order dated 17/19.4.2008 (Annex.A/4)passed by the Revisional Authority, again an officer working under the Department of Telecom, Government of India. It was therefore submitted that since neither the applicant, nor the Disciplinary Authority, nor the Appellate Authority, and nor the Revisional Authority, are the employees of BSNL, while the respondent No. 2 is an employee of the BSNL, and he has not passed any impugned order, therefore, the OA suffers from mis-joinder of parties. It was further mentioned that the applicant has not arrayed as party respondents either the Disciplinary Authority, or the Appellate Authority, or the Revisional Authority, and, therefore, the O.A. suffers with an element of mis-joinder of parties. It was, therefore, submitted that since no cause of action can arise against respondent No. 2, as such the OA deserves to be dismissed.
32- The applicant thereafter filed a reply dated 15.02.2011 to this additional/second affidavit. Through this he had filed a copy of the Memorandum dated 20.05.2003 (Annex.A/12), through which charges were levied against one Shri B.L. Chouhan, and on which, through Annex. A/13 dated 09.08.2005, the Disciplinary Authority had awarded the penalty of reduction of his pay by one stage for a period of one year, with cumulative effect of postponing of the future increments of his pay. On that, the Appellate Authority had, instead of relying on the findings of the Inquiry Officer, held that it was not proved that both the OFC Cables and the local cables were laid at the same time, by digging a single trench, though it was partially proved that the Armoured Optical Fibre Cable (AOFC) and the Under Ground (UG)Local Cables were found in the same Trench, and after detailed consideration, Shri Niranjan Kumar, Director, (HRD) BSNL, had, therefore, vide his order dated 18.01.2007 (Annexure A/14), set aside all the charges which had been earlier held by the Disciplinary Authority as proved, and had exonerated the said Shri B.L. Chouhan from culpability in respect of all the charges levelled against him.
33- He also pointed out that Shri A. Thomas, the then Task Force Officer of GMTD, Pali, and who had filed the additional / second reply preliminary objections on behalf of the Respondent No. 2 on 27.01.2011, was also subjected to parallel disciplinary proceedings in the same matter, as pointed out in para 30/ante also, with similar charges, through Annex. A/15, and in his case also, the Inquiry Officer had held that it was not proved that both the Armoured Optical Fibre Cables (AOFC) and the local underground (UG) Cables, though found in the same Trench partially,were laid at the same time,by digging the trench only once. In his case also, the Disciplinary Authority had dis-agreed with the findings of the Inquiry Officer, and had awarded penalty upon him of reduction of pay by one stage for a period of one year, with cumulative effect of postponing his future increments, through Annex.A/16 dated 09.08.2005. His appeal also came to be allowed vide order dated 29.03.2007 (Annex.A/17), passed by the same officer, Shri Niranjan Singh, Director (HRD), BSNL Corporate Office, and thus Shri A. Thomas was also exonerated of the charges. It was therefore submitted by the present applicant that when there has been a consistent finding that though the Armoured Optical Fibre Cables (AOFC) and the Under Ground (UG) Cables were both found laid in the same trench, it could not be proved that they were both laid at the same time, and there cannot be a different finding of fact in the same matter / incident, and therefore the applicant cannot be held guilty of those charges, while both Shri B.L.Chouhan and Shri A. Thomas have been exonerated of those very same charges. He, therefore, again pleaded that the OA be allowed.
34- Initially itself, during the course of the hearing of the case for admission and issuance of notices on 06.11.2009, Shri Laxman Bishnoi, junior of Shri Vijay Bishnoi, Advocate, who generally represents the Bharat Sanchar Nigam Limited, was present before the Tribunal, and had informed the Court that he is ready to receive the notices on behalf of the respondents, and in view of this submission of his, the learned counsel of the applicant was directed to serve the notices and the paper book upon the counsel of the Bharat Sanchar Nigam Limited. Later, Shri Kuldeep Mathur, learned counsel for the respondent No. 1 had put in appearance on 13.01.2010, though subsequently submissions were initially made that respondent No. 1 was only a formal party. But, thereafter, the reply affidavit on behalf of the answering respondents was filed on 30.03.2010 through Shri Kuldeep Mathur, and the additional reply on behalf of respondent No. 2 was filed through Shri N.M. Lodha and Shri V.D. Dadhich. During the arguments both Shri Kuldeep Mathur, learned counsel for respondent No. 1, and Shri V.D. Dadhich, proxy for Shri N.M. Lodha, counsel for respondent No. 2, were present, and argued the case after the learned counsel for applicant had finished his arguments.
35- Heard. It is imperative for us to deal first with the interim reply/preliminary objections filed through the additional/second affidavit on behalf of the Bharat Sanchar Nigam Limited, through the affidavits and verification signed by Shri A. Thomas on 27.01.2011, through the learned counsel Shri V.D. Dadhich, praying that in this case no cause of action can be raised against respondent No. 2, who is an employee of Bharat Sanchar Nigam Limited, and the applicant can seek relief only from Respondent No. 1, the Union of India.
36- We find that the Inquiry Officer was an Officer of the B.S.N.L., and his report, served upon the applicant through Annex. A/6 dated 19.02.2005, was typed on the letter-head of the Bharat Sanchar Nigam Limited, and signed by Shri T.K. Parihar, Inquiry Officer, SE (E), of the Bharat Sanchar Nigam Limited, Jodhpur. Even the reply of the applicant dated 16.06.2005, Annex.A/7, was routed through DE (Planning), Bharat Sanchar Nigam Limited, Office of the GMTD, Pali Marwar. There are other pleadings also from BSNL, and even the appeal filed by the applicant with the Appellate Authority was received in four copies in the office of Bharat Sanchar Nigam Limited, GMTD, Pali Marwar, on 14.12.2006, and also the revision petition of the applicant, dated 02.11.2007, addressed to the Honble President, was again routed through the GMTD, BSNL, Pali Marwar. Therefore, the prayer made on behalf of the respondent No. 2, through the preliminary objections/interim reply filed through the additional / second reply on 27.01.2011 is rejected, and it is held that the Bharat Sanchar Nigam Limited is a proper party respondent, and the prayer for deletion of respondent No. 2 from the array of party respondents cannot be accepted.
37- In the cases when an employee is deputed to another Department, the following distinguishing points already decided in the case law may be observed/cited here :-
(i) The deputed employee continues to remain under the disciplinary control of his parent Department, if nothing contrary is said in the terms of deputation; State of U.P. Vs. Ram Naresh Lal (1970) 3 SCC 173 : AIR 1970 SC 1263.
(ii) But, when the order of deputation vests the disciplinary control in a specified officer in the new Department, not being subordinate to the appointing authority of the employee, he ceases to be under the disciplinary control of his (original) appointing authority State of U.P. Vs. Ram Naresh Lal (supra).
(iii) The control of the parent Department also ceases when the employee is permanently transferred to a post in the new Department, or elects not to go back to his parent Department. State of U.P. Vs. Ram Naresh Lal (Supra).
38- Coming to the merits of the case, one of the points emphasized by the learned counsel for the respondent No. 2 was that the applicant being an officer of the Union of India respondent No. 1, and the cut in pension having been thus ordered by the orders of the President of India, in no case can the applicant seek any monetary relief as against the respondent No. 2, even if the O.A. is decided in his favour.
39- It is a fact that a very large number of officers of the Department of Telecommunications, even those recruited by the Government of India through the Union Public Service Commission., had been sent on deputation to the Bharat Sanchar Nigam Limited when it was constituted. Some of them got themselves absorbed as permanent employees of BSNL, while some continued to remain employees of the Union of India, and it is only recently, on 08.11.2011, that an en-mass transfer and repatriation of all the officers of the Indian Telecom Service, who were on deputation with BSNL/MTNL, and had not yet been absorbed in those organisations, back to the Government of Indias Department of Telecom has been given effect to. Therefore, since the applicant had continued to be in deputation with BSNL till the date of his superannuation, it is held that the applicant is entitled to claim reliefs from either of the two and/or both of the respondents in this case.
40- The issues for our consideration therefore are as to (a)whether the applicant has been discriminated against by the respondents, in different conclusions having been arrived at in the case of different persons against whom disciplinary proceedings was initiated in parallel from the same/similar sets of facts and circumstances, and secondly, and more importantly (b) whether the procedure followed by the respondents in conducting the disciplinary inquiry against and imposing punishment upon the applicant was in any manner contrary to the Central Civil Services (Classification, Control and Appeal), Rules, 1965 or not, and as to (c) whether the note of disagreement by the Disciplinary Authority was communicated properly. Related questions which arise from the second question are about (d) the role of the CVC and of the UPSC in departmental inquiries conducted under the CCS (CCA) Rules, 1965, and as to (e) whether in the instant case the limits of their prescribed roles had been transgressed or exceeded by either the CVC or/and the UPSC.
41- A related question which arises is as to (f) whether the pleasure of the President has to be exercised by the President personally / individually as a necessary course of action, and also as to whether the orders passed in the name of the President once can be revised again in his name or not. In this context, we have to also examine (g) the legality of the orders passed by the various Sections of the Vigilance Wing of the Telecom Department, like Annexures A/2 dated 20.09.2006, Annexure A/4 dated 04.04.2008, and Annexure A/6 dated 19.05.2005. We have to also determine that in the case of the applicant, his appeal having been dealt with by the Vigilance section of the Department of Telecommunication, and orders having been passed by the Desk Officer Vigilance-II on 20.09.2006 Annex.A/2, by the Director (VP) of the Vigilance Wing of the Department of Telecommunication on 17.08.2007 through Annex.A/3, and by Shri Anup Singh, S.O. Vigilance-III of the Department of Telecommunication through the letter dated 04.04.2008, part of Annex.A/4,rejecting the revision petition of the applicant, (h) has there been any transgression of the roles of these authorities, as prescribed under the Central Civil Services (Classification, Control and Appeal), Rules, 1965. Lastly, we have already determined in paragraph 39/ante that (i) the applicant can claim relief for restoration of his pension from Respondent No. 1, or Respondent No. 2, or from both, in the light of the relevant facts, and the case law, as cited at paragraphs (37) & (38) above. Thus, only the above issues, enumerated as (a) to (h) above, fall for our consideration, for being decided by us in the context of the present case, though, perhaps not in the same sequential order.
42- Let us first examine here the connection between the Vigilance activities, and conduct of Departmental inquiries in disciplinary matters. The Vigilance set up in India was introduced as an exercise parallel and almost simultaneous to the formulation of the statutory Central Civil Services (Classification, Control and Appeal), Rules, 1965, which lay down the procedure for conduct of Departmental Disciplinary Inquiries. The Government of India had set up a Committee headed by Shri K. Santanam, which was called the Committee for Prevention of Corruption. On the basis of the recommendations of that Committee, through a Government of India resolution dated 11.02.1964, the Central Vigilance Commission was set up. It was provided in the resolution that the Central Vigilance Commissioner would be appointed by the President under his hand and seal, and that he would not report to any Ministry, though for administrative purposes and release of funds, the Commission itself was to be attached to the Ministry of Home Affairs, Government of India. In November 1995, 31 years later, the resolution of 1964 was amended, and the provision relating to appointment of the Central Vigilance Commissioner by the President by warrant under his hand and seal was deleted.
43- In September 1997, the Government of India constituted an Independent Review Committee (IRC) to suggest measures for strengthening anti-corruption activities and mechanisms, as part of its efforts against corruption. One of the recommendation made by the IRC was that the Central Government may consider the question of conferring statutory status to the Central Vigilance Commission. The IRC also recommended that the CVC should be made responsible for the efficient functioning of the Central Bureau of Investigation (in short, CBI), which is a criminal investigation agency deriving its powers from the Delhi Special Police Establishment Act, 1946 (Act 25 of 1946).
44- Around the same time, the Honble Supreme Court passed its order dated 18.12.1997 in the case commonly known as Jain Hawala case, in Criminal Writ Petition Nos. 340-343/1993 Vineet Narain and Ors. Vs. Union of India and Ors. (1998) SCC 226 : AIR 1998 SC 889.The Honble Supreme Court had also given directions that statutory status should be conferred upon the Central Vigilance Commission and the several consequences following from the conferment of such status were also laid down by the Honble Supreme Court in its judgment. Thereafter, the Central Government promulgated an ordinance, namely the Central Vigilance Commission Ordinance, 1998 (Ordinance 15 of 1998 dated 25.08.1998) which was promulgated by the President to give effect to the Honble Apex Courts judgment immediately, as the next Session of the Parliament was slightly away.
45- Since certain observations were made further by the Honble Supreme Court regarding some provisions of the said Ordinance promulgated by the President on 25.08.1958, in order to rectify the position, the President then promulgated the Central Vigilance Commission (Amendment) Ordinance, 1998 (Ordinance 19 of 1998) on 27.10.1998.
46- Ultimately, with an intention to replace the two Ordinances, the Government introduced the Central Vigilance Commission Bill, 1998, in the Lok Sabha on 07.12.1998, which was examined by the Parliamentary Standing Committee on Home Affairs, and the Lok Sabha passed the Bill on 15.03.1999. But, before the Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha was dissolved, and the Bill lapsed. The Government had, in the meantime promulgated the CVC Ordinance, 1999 (Ordinance 4/1999) on 08.01 1999, which also soon expired on 05.04.1999. The Government, therefore, issued a Resolution in 1999 to continue the Central Vigilance Commission in the interim as a non-statutory body. Simultaneously, the Government re-introduced the Central Vigilance Commission Bill, 1999, which was passed by both the houses of the Parliament, and received the assent of the President on 11.09.2003, and came on the statute book as the Central Vigilance Commission Act, 2003 (Act No. 45 of 2003). With this, the non-statutory status of the Commission ended, and the Central Vigilance Commission is now functioning from 11.09.2003 onwards under the Act No. 45 of 2003.
47- The powers and functions of the Central Vigilance Commission have been enumerated in detail in Sub Section (1) of Section 8 of the said Act, the Clauses (a) to (h) of which prescribe as follows :-
8(1)(a)exercise superintendence over the functioning of the Delhi Special Police Establishment insofar as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(b) give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibility entrusted to it under sub section (1) of section 4 of the Delhi Special Police Establishment Act, 1946 (25 of 1946):
Provided that while exercising the powers of superintendence under clause (a) or giving directions under this clause, the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner.
(c) inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation established by or under any Central Act, Government company, society and any local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act, 1988 (49 of 1988), or an offence with which a public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(d) inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to such category of officials specified in sub-section (2) wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 (49 of 1988) and an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(e) review the progress of investigations conducted by the Delhi Special Police Establishment into offense alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) or the public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(f) review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988 (49 of 1988);
(g) tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise:
(h) exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government:
Provided that nothing contained in this clause shall be deemed to authorize the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters. (Emphasis supplied) 48- Further, Section 9, of the CVC Act, 2003, prescribes the procedure regarding the conduct of the proceedings of the Commission, and Section 11 of the said Act prescribes the power of the Commission relating to the inquiries conducted by it, as follows :-
11. Power relating to inquiries The Commission shall, while conducting any [inquiry referred to in clauses (c) of sub-section (1) of section 8], have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and in particular, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or other documents; and
(f) any other matter which may be prescribed. 49- Section 12 of the Act prescribes that the proceedings before the Commission would be judicial proceedings, as the Commission shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (Act 2 of 1974), and that every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code (Act 45 of 1860).
50- In various sections of the Central Vigilance Commission Act, 2003 mention has been made of other related/connected statutes and statutory rules, which can be enumerated as follows :-
ALPHABETICAL LIST OF OTHER STATUTES REFERRED IN THE CENTRAL VIGILANCE COMMISSION ACT,2003 Sl. Name of other Statutes Referred Section of Central Vigilance Commission Act, 2003 where reference is made.
1. All India Services Act,1951 (61 of 1951) 26 2 Code of Civil Procedure, 1908 (5 of 1908) 11
3. Code of Criminal Procedure,1973 (2 of 1974) 8(1),8(c),8(d), 8(e), 12
4. Companies Act,1956 (1 of 1956) 2(d)
5. Delhi Special Police Establishment Act, 1946 (25 of 1946) 2(c),8(b),14(2)
6. Foreign Exchange Management Act,1999 (42 of 1999) 26
7. Indian Penal Code (45 of 1860) 12, 16
8. Prevention of Corruption Act, 1988 (49 of 1988) 8(1),8(c),8(d), 8(e), 8(f), 26 51- From all the above discussions, it is very clear that from the very beginning, since its inception itself, the Central Vigilance Commission was intended to be a mechanism for curbing and controlling corruption, conducting inquiries, and probing into cases of corruption, either itself, or through the CBI, and even enforcing production of documents and witnesses for the purpose of conducting its inquiries, which are now-judicial in nature, and coming to its conclusions. But, what is important to note here is that even though the Central Vigilance Commission was set-up in 1964, and as per the history described above, it has continued to be in existence, and even became a statutory body by the Act of 2003, it has always been considered/treated as a body concerned with the criminal aspects of the cases of corruption. In regard to such criminal aspects of cases of corruption, it can either conduct its own inquiries under Clauses (c) or (d) of Sub Section (1) of Section 8 of the CVC Act, 2003, acting as a Civil Court under Section 11 of that Act, or cause such inquiries to be conducted by either the CBI, or any other agency, even in cases already under trial.
52- At no point of time has either the Parliament, or anybody else, suggested, or any Rule or Regulation has been framed, for the Central Vigilance Commission to have any role in so far as the civil / departmental / conduct rules liability in respect of the cases of corruption are concerned, or the Departmental authorities handling of the conduct of the disciplinary inquiry is concerned. As is apparent from the table as reproduced in para 50 above, while all the other relevant concerned statues, with which the Commission is concerned, have been apparently cited in the Central Vigilance Commission Act, 2003, there is no mention whatsoever in any portion of the said Act of the Central Civil Services (Classification, Control and Appeal) Rules, 1965,which were framed after the Commission had come into existence in the year 1964.
53- The converse is also true. The Central Civil Services (Classification, Control and Appeal), Rules, 1965, were published in the Gazette of India Notification dated 20.11.1965, and came into force on 01.12.1965, about more than a year after the constitution of the Central Vigilance Commission . However, in none of these statutory rules, which carry the weight of subordinate legislation with them, and which Rules the Honble Supreme Court has held to be nothing but codification of principles of natural justice, and which are more elaborate and more beneficial to the employees than even the principles of natural justice (Director General of Ordnance Services Vs. P.N. Malhotra 1995 Supp (3) SC 226 : AIR 1995 SC 1109), has the Central Vigilance Commission been mentioned anywhere. When these 1965 rules were being framed to replace the earlier CCS (CCA) Rules, 1957, and the Civilians Defence Services (CCA) Rules, 1952, which were both repealed with the Central Civil Services (Classification, Control and Appeal) Rules, 1965, coming into force w.e.f. 01.12.1965, if the legislature had so intended, the one year old nascent organization of Central Vigilance Commission, specifically created by the Government to combat corruption, could have atleast been mentioned in any one of the 35 rules contained in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It is not so, and it is very rightly not so.
54- As was observed by the Honble Supreme Court in DSilva, A.N. Vs. Union of India: AIR 1962 SC 1130 : 1962 Supp. (1) SC R 968, the nature and purpose of a Departmental disciplinary inquiry is only to advise the punishing authority in the matter of investigating into the charges brought against the delinquent officer, and that, based upon such advise elucidated from the findings of the inquiry, the responsibility both in respect of finding him guilty, or not guilty, as well as punishing him if he is found guilty, rests only and only with the punishing authority (State of Assam Vs. Bimalkumar; AIR 1963 SC 1612: 1964 (2) SCR 1; and Union of India Vs. Goel, H.C., AIR 1964 SC 364: 1964 (4) SCR 718).
55- Moreover, the conduct of a disciplinary inquiry is in the nature of quasi judicial proceedings at all of its stages. The Inquiry Officer is supposed to conduct his inquiry in a quasi judicial capacity. The Disciplinary Authority thereafter has to take an independent decision of his own in the matter, in a quasi judicial capacity. The Appellate Authority, and the Review or Revisional Authority, wherever revision lies, also are supposed to follow the principles of natural justice, and act in quasi judicial capacity. Therefore, while acting in quasi judicial capacity, the Inquiry Officer, the Disciplinary Authority, the Appellate Authority, and the Review or Revisional Authority, have to be guided only by their own individual/personal judgment, and the papers and evidence before them, as has been elucidated during the course of the disciplinary inquiry, after delinquent was given an opportunity of being heard, and to try to rebut the charges brought against him. While arriving at their own individual/personal conclusions, they cannot be guided, or dictated to, by any other person or authority, or correspond with any authority, which has not been prescribed a statutory role, as either the Inquiry Authority, or the Disciplinary Authority, or the Appellate Authority, or the Revisional/Review Authority under the Central Civil Services (Classification, Control and Appeal), Rules, 1965. Thus, in a departmental inquiry, the case of a delinquent official, has to be considered, and the evidence for or against him assessed by the independently acting minds of only four identifiable persons in authority the Inquiry Officer / Authority, the person who is designated as his Disciplinary Authority, a person senior than the designated Disciplinary Authority who has been designated as Appellate Authority, and, where the service rules applicable to the delinquent so prescribe, another further senior / higher person, who is the incumbent posted against the post designated as the Revisional / Review Authority. No fifth mind comes into the picture.
56- Combating corruption and locating cases of Government servants having indulged in corruption clothes the CVC with the nature of an investigator, or a prosecutor, and since a prosecutor cannot be a judge in his own case, the legislature has very rightly and consciously maintained the iron / steel wall which should separate the Vigilance functions from the proceedings of the departmental enquiries, and from the performance of the quasi-judicial functions of the departmental Disciplinary and other superior authorities. The Central Vigilance Commission has been very rightly given the authority over even the CBI, acting under the Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946), and has been given powers under the Prevention of Corruption Act, 1988 (Act 49 of 1988), apart from IPC, FEMA, 1999, Companies Act, 1956, and the All India Services Act, 1951, along with the Code of Civil Procedure, and the Code of Criminal Procedure. But, at the same time, and very rightly so, the Central Vigilance Commission has not been installed at any place in the hierarchy of the Inquiry Authority / Inquiry Officer, the Disciplinary Authority, the Appellate Authority, or the Revisional/Review Authority, under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, anywhere. Therefore, it is clarified and made clear that the CVC, or even the Central Bureau of Investigation acting under its jurisdiction under the Delhi Special Police Special Act, 1946 (Act No. 25 of 1946), cannot have any say or role in the conduct of the disciplinary inquiry, at any stage, or in any manner whatsoever, as a fifth mind/authority.
57- The impact of consultation with the Central Vigilance Commission on the fairness of the procedure adopted, in the departmental disciplinary enquiry was very adversely commented upon by the Honble Supreme Court in Nagaraj Shivarao Karjagi Vs. Syndicate Bank, 1991 (1) SCALE 832 : 1991 (2) JT 529 : 1992 AIR (SC) 1507 : 1991 (3) SCC 219. The Honble Apex Court has clearly laid down the law that the authorities dealing with departmental enquiry cases have to exercise their own quasi-judicial discretion alone, having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission, or of the Central Government. No other party like the Central Vigilance Commission, or the Central Government, can dictate to the Disciplinary Authority, or the Appellate Authority, as to how they should exercise their power, and as to what punishment they should impose on the delinquent officer. What the Honble Apex Court meant was that the streams of natural justice can flow un-sullied only and only if every such outside/external influence is kept away from the application of their mind totally freely and independently by the four authorities statutorily prescribed for applying their mind to the case of the delinquent.
58- Further, in a case very similar to the present case, in D.C. Agrawal Vs. State Bank of India, 1991 (2) SLR P&H 578, the disciplinary authority took into consideration the report/views of the Central Vigilance Commission, to disagree with the findings arrived at by the Inquiry Officer, and to hold that some charges stood proved. The Disciplinary Authority did not communicate full reasons of his disagreement, and as to why and how it had taken the CVCs views into consideration in coming to the conclusion to differ/disagree with the Inquiry Officers report, thus preventing the petitioner therein from making an effective representation against the proposed punishment. It was held by the Honble High Court that there could be no escape from the conclusion that the principles of natural justice had been violated.
59- Though the legislature has maintained this steel wall of separation between the Vigilance and the departmental inquiry functions while framing the CCS (CCA) Rules, 1965, and not mentioned either the Central Vigilance Commission, or the Central Bureau of Investigation, in any part of those rules, even by an amendment in the last 46 years, yet some discrepancy has crept in/entered into, because of an administrative instruction issued by the Government of India, Ministry of Home Affairs, on 18.11.1964, which was issued after the creation of the Central Vigilance Commission as a non-statutory body. This instruction may be reproduced from Swamys Compilation of CCS (CCA) Rules, as Government of India decision Two below Rule 29 of the CCS (CCA) Rules, 1965, as follows :-
29.[Revision] (1) Notwithstanding anything contained in these rules
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and [Adviser (Human Resources Development), Department of Telecommunications] in the case of a Government servant serving in or under the Telecommunications Board]; or
(iv) the Head of a Department directly under the Central Government in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the Appellate Authority, within six months of the date of the order proposed to be [revised]; or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and [revise] any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
[Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary]:
Provided further that no power of [revision] shall be exercised by the Comptroller and Auditor-General, [Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications]or the Head of Department, as the case may be, unless
i) the authority which made the order in appeal, or
ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for [revision] shall be commenced until after
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for [revision] shall be dealt with in the same manner as if it were an appeal under these rules.
GOVERNMENT OF INDIAS DECISIONS (1) Self-contained, speaking and reasoned order to be passed and to issue over the signature of the prescribed Revising Authority.-See GID (1) below Rule 15.
(2) Scrutiny of punishments to be made by Vigilance Officers.-Recommendation No. 75 (ix), contained in Paragraph 9.23 (ix) of the Report of the Committee on Prevention of Corruption, has been considered in the light of the comments received from Ministries / Departments. The recommendation consists of the following two parts :-
(i) The Chief Vigilance Officers should have the power to scrutinize the correctness of the findings and conclusions arrived at in a departmental inquiry and the adequacy of punishment and initiate action for revision if he considers that the punishment awarded is inadequate; and
(ii) The Delhi Special Police Establishment should be authorized to move for revision of findings and punishment in cases started on their report.
It is further stated that in all these matters the advice of the Central Vigilance Commission should be freely obtained.
2. As regards (i) above, a Vigilance Officer cannot obviously scrutinize findings accepted and orders passed by an officer in his own hierarchy to whom he is subordinate. For example, when a Secretary passes orders, there can be no question of the Vigilance Officer of the Ministry scrutinizing the case, or if the Head of a Department passes orders, his Vigilance Officer cannot examine the correctness of the decision. The intention of the recommendation is that, findings and orders in disciplinary cases should be scrutinized at the next higher level the officer at that level (Secretary, Head of Department, etc.), who can decide whether the order passed by the lower authority needs to be revised.
3. In a case where there is an appeal in a disciplinary case, the findings and the orders of punishment have, in any case, to be scrutinized. Such scrutiny would normally be done by the Vigilance Officer though of course, orders of the appropriate Appellate Authority (Secretary, Head of Department, etc.), would be taken. This class of cases does not, therefore, present any difficulty. There are, however, cases in which a Government servant is either exonerated in disciplinary proceedings or is awarded punishment against which he considers it imprudent to appeal. In a certain percentage of these cases, it is desirable that the power of revision should be exercised. The object of this is to ensure by a systematic arrangement of scrutiny that the power of revision is exercised in all suitable cases.
4. As regards (ii) above, attention is invited to the procedure laid down in Paragraph 6 of Central Vigilance Commissions Circular No. 9/1/64-D.P., dated the 13th April, 1964 (not printed), which gives effect to this part of the recommendations.
[G.I.M.H.A., OM No. 43/109/64-AVD, dated the 18th November, 1964, addressed to the Vigilance Officers of all Ministries / Departments of the Government of India] 60- This instruction was issued by the Government of India, Ministry of Home Affairs, by following the then CVCs Circular dated 13.04.1964, when the Central Vigilance Commission itself was a non-statutory body and had no force of law to support its dictates. Therefore, following the law as laid down by the Honble Apex Court in the case Nagaraj Shivarao Karajgi (supra) and by the Honble Punjab and Haryana High Court in D.C. Aggarwal (supra), the CVCs Circular No. 9/1/64 DP dated 13.04.1964, and in particular Para no. 6 of the same, and the Government of India O.M. No. 43/109/64-18.11.1964, reproduced above, are struck-down as un-constitutional, illegal and abhorrent to the rule of law, and principles of natural justice. Striking down these two Circular/O.M. is essential specially since there is no provision in these instructions for the Vigilance Officer concerned to give an opportunity of being heard to the delinquent Government official, whose departmental disciplinary inquiry case is being so scrutinized, and also, since there cannot be any pedestal for the CVC to be placed in the middle of the statutory procedure prescribed for holding the Departmental Inquiries, above, below, or in-between the Inquiry Authority, the Disciplinary Authority, Appellate Authority, or the Review /Revisional Authority, where such review / revision has been provided for. The CVC cannot be a supernumerary fifth mind, when no statutory prescription has been made for the interpolation of such a fifth mind to assess the evidence for or against a delinquent during the course of the progress of a disciplinary inquiry. Therefore, any and all further instructions, issued by the CVC, ever since 1964, regarding the requirement of consultation with the Office of the CVC, during the course of, or in between, the conduct of the departmental inquires by the designated statutory disciplinary authorities of various Ministries / Departments / Organizations / P.S.Us. of the Government of India ( or the State Government, as the case may be ) are also therefore illegal, and without jurisdiction, and all such instructions of the CVC and/or the Vigilance Wings / Sections are also set-aside, and struck down as un-Constitutional, and against the principles of natural justice.
61- In the case of the CBI also, under the Delhi Special Police Establishment Act, 1946, no role has been assigned to the CBI other than that of a criminal investigation agency, and since an investigating agency looking into the criminality aspect cannot act in quasi judicial capacity, and cannot similarly interpose itself as either an Inquiry Authority, or the Disciplinary Authority, or the Appellate Authority, or the Revisional Authority under the CCS (CCA) Rules, 1965.Therefore,even the CBI cannot also have any role to play, or called upon to give any opinion or suggestion to any of these four statutory authorities prescribed under the CCS (CCA) Rules, 1965, who are required to act in quasi judicial capacity in their own right, and are individually responsible to apply their own mind alone, and to scrupulously follow the principles of natural justice.
62- It has to be noted that, as mentioned earlier also, vigilance is an action which clothes the authority involved in the process of vigilance with the cloak of either an investigator, or a prosecutor. Since under the Indian Law, under Common Law principles, investigating agencies / authorities and the prosecuting agencies or authorities, cannot be a judge also, a person who is involved with the aspects of vigilance within an organization cannot have any role to play in the conduct of departmental inquiry, which is a totally quasi judicial function at all the levels of Inquiry Authority / Officer, Disciplinary Authority, Appellate Authority, and the Revisional/Review Authority, as mentioned earlier also. However, in total violation of these basic principles flowing from the Common Law principles of natural justice, it is observed that in many organizations and Departments and Ministries of Government of India, the Vigilance Section gets involved in pursuing the various stages of the disciplinary inquiry, including the stage from the framing of charge against the delinquent official, up to the stage of award of punishment by the Disciplinary Authority, the decision of the Appellate Authority on the appeal against it, and, finally, exercising of Review/Revisional powers, where applicable. This is anathema to the spirit of laws as they exist in India, and under the basic Common Law principles of natural justice, it is like Insider Trading in Stock Exchanges, and akin to the French and Italian System of a prosecutor judge, permissible under the Civil Law principles,but far-far removed from the principles of Common Law which are followed scrupulously in Indian Laws.
63- As has already been mentioned above, since the holding of disciplinary inquiry involves quasi judicial functions to be performed at every stage, by every authority concerned, and such quasi judicial authority functions can be performed by them only by an independent application of mind their own mind alone, totally aloof, removed, or un-influenced by the opinion of anybody, or of the Vigilance wing of the organization, which may be interested in successfully prosecuting a delinquent Government official, ensnared / caught / nabbed by the Vigilance Wing/section in a particular action on wrong footing, the Vigilance Wing/section of any organization cannot be allowed to have its own say at any of the stages of the proceedings of the disciplinary enquiry. The steel wall erected by the legislature (and very rightly so) for the Vigilance functions to be totally separated from the quasi-judicial functions involved in a disciplinary enquiry process, has to be maintained at all costs.
64- It is clear that the framing of memorandum of charge, and the list of documents by which the charge would be proved, and also the list of witnesses through whom the charge is intended to be proved, and the articles of charges as are made-out, have all to be in the language as approved by the Disciplinary Authority alone, after application of his own independent mind. This issue was examined in the cases of Sukhendra Chandra Das Vs. Union Territory of Tripura, AIR 1962 Tripura 15, Manihar Singh Vs. Superintendent of Police, AIR 1969 Assam 1; Union of India Vs. J.A. Munsaff, 1968 (17) FLR 14 SC; and Shardul Singh Vs. State of M.P., AIR 1966 MP 193, with concurring judicial pronouncements.
65- The role of the Vigilance Wing or section in institution of a disciplinary proceedings can at best be limited to, and end with, giving a detailed narration of the incident/wrongful action in which the delinquent Government official was found to be involved, and giving a list of the possible Articles of charges, and a list of the possible documents through which the guilt of the delinquent official can be tried be proved, and also providing a list of possible witnesses, who can throw light on various aspects of the incident, or wrongful action, claimed by the Vigilance Wing or section to have been indulged in by the delinquent Government official. The Disciplinary Authority has to thereafter necessarily then use his own judgment, finalise the memo of charges, and Articles of charges, and have them served, and thereby initiate the disciplinary proceedings. Thereafter, the Vigilance Wing or section of the organization has to be kept consciously separated (by a notional steel wall) from what all happens after the Vigilance Wing or section has provided its initial reports and details to the Disciplinary Authority concerned.
66- As has been already held in the cases cited above, in para 64, unless the Rules in this regard so permit, it is the role of the Disciplinary Authority alone to either himself frame, or cause to be framed by those working under him or his immediate juniors, and then himself approve, the memorandum of Articles of charge, with an independent application of his own mind, and, this could very well be done by him after studying the information and documents sent to him by the Vigilance Wing or section in regard to the incident of wrongful action on the part of the delinquent Government official. Also, the Disciplinary Authority alone can decide as to which of the documents out of the list of documents suggested by the Vigilance Wing or section should be relied upon for establishing the case of the administration against the applicant as suggested by the Vigilance wing or section. The decision on the list of the documents proposed to be relied upon has once again to be taken, or cause to be taken by his immediate juniors, and then approved by himself, in a totally neutral and above board manner, by the Disciplinary Authority by an application of his own mind alone, without being influenced by any suggestion or direction from the Vigilance Wing or section of the organization. Similar would have to be the case with the list of proposed witnesses, and the Disciplinary Authority has to independently decide, or cause to be decided by his immediate juniors, and then approve it himself, by an application of his own mind alone, as to which witnesses ought to be included in the list of witnesses through whom the incident or wrongful action of the delinquent Government official may be sought to be proved by the Presenting Officer during the departmental inquiry.
67- Thus the whole initial task of finalization of the memorandum of Articles of charge, and the list of documents and witnesses through which the Articles of charge are sought to be proved, has to be performed, or cause to be performed by his immediate juniors, and then approved himself, by the Disciplinary Authority alone,by an application of his own mind alone, acting in his own individual capacity. Since the subsequent actions of the Disciplinary Authority are quasi judicial in nature, the duty to perform all those quasi-judicial tasks gets attached to the individual incumbent officer who is holding the substantive charge of the concerned post/ designation, designated as the Disciplinary Authority of the delinquent Government official concerned, and not merely any officer, or any other officer who is merely looking after the current duties of the post concerned.
68- Even an Officer holding only the current charge of the duties of the post designated as the Disciplinary Authority of the delinquent Government official cannot perform these crucial statutory functions of finalization of the memorandum of charge, Articles of charge and the list of documents and witnesses through which the Articles of charge are sought to be sustained, and the subsequent quasi-judicial functions as the Disciplinary Authority.
69- This principle was first enunciated by D.G.P.&Ts Memo No. STB/112/23/49 dated 15th December, 1949, read with Memo of even number dated 26th February, 1951, in the context of junior officers looking after current duties of a higher post. Later, it was reiterated by the Government of India, Ministry of Finance, O.M. No. F 12(2) E.II(A)60 dated 15th October, 1960, laying down the requirement of Gazette Notification for the Officer appointed to hold the current duties of a post to exercise statutory functions. This principle was once again reiterated by the Government of India, Ministry of Home Affairs, O.M. No. F.7/14/61-Ests.(A) dated 24th January, 1963. These instructions remain unchanged, and the 1960 and 1963 O.Ms. have continued to be referred to at Government of Indias decision No. (2) below Rule 12 of the CCS (CCA) Rules, 1965, in Swamys compilation.
70- Needless to add therefore that that very incumbent officer, who holds the substantive charge of the post concerned in his individual capacity, and is not holding such charge as an additional charge, or charge of current duties of the post, alone can be designated as the Disciplinary Authority of the delinquent Government official, and can appoint and nominate the Inquiry Officer and the Presenting Officer. Once again, if there is a request made by the delinquent official for change of the Inquiry Officer, then also, only a regularly posted incumbent officer, substantively posted against the post designated as the Disciplinary Authority of the delinquent Government official concerned, who alone can decide about changing the Inquiry Officer.
71- The delinquent Government servant does not however have a right to request for a change of the Presenting Officer, as the Presenting Officer is merely an official presenting the case as had been built up by the concerned Vigilance Wing or section of the organization, and, on behalf of the organization, try to prove the case of the administration before the Inquiry Officer. But, it may be added here that though the Rules as prescribed in this regard may not have so prescribed thus far, Common Law principles of natural justice would require that the Presenting Officer in a disciplinary enquiry cannot also be an official from the Vigilance Wing or section, though he would be required to try to prove the case as made out by the Vigilance Wing or section initially as a result of their Vigilance activities.
72- At the stage of accepting the inquiry report of the Inquiry Officer and communicating it to the delinquent Government official, if the Disciplinary Authority opts to differ / disagree with the findings of the Inquiry Officer, then the task of communicating the reasons for his difference or disagreement from the findings of the Inquiry Officer, along with the report of the Inquiry Officer, is also a quasi judicial function, which can be performed only by the regular incumbent officer posted in substantive capacity against the post designated as the Disciplinary Authority of the delinquent Government official concerned. This task, and the subsequent task of giving a personal hearing to the delinquent Government official in respect of the findings arrived at by the Inquiry Officer, as well as any points of disagreement and the grounds of disagreement mentioned by the Disciplinary Authority for being replied to, is also a quasi judicial function, which also can be performed only by the regular incumbent officer, substantively posted against the post which has been designated as the Disciplinary Authority of the delinquent Government official concerned. Even a person who is holding an additional charge/charge of the current duties of that post, cannot perform such quasi judicial functions, unless he has been Gazette Notified for substantively performing the statutory functions of that post. Since these are quasi judicial functions, the Disciplinary Authority does not have any requirement of consulting anybody or any authority in regard to as to whether he should, in his individual capacity, accept the findings of the Inquiry Officer, or dis-agree with any parts or the whole of the findings of the Inquiry Officer, and communicate both the report of the Inquiry Officer, and the note of his disagreement, if any, detailing the points on which he dis-agrees with the Inquiry Officer, along with explanation or reasons of such disagreement, to the delinquent Government official.
73- It appears that following the 13.04.1964 instructions of the CVC, as well as the Government of India, Ministry of Home Affairs O.M. No. 43 /109/ 64 - AVD, dated 18.11.1964, reproduced above, in many Ministries of Government of India, the Disciplinary Authorities are being compelled to send all the documents, and the report of the Inquiry conducted by the Inquiry Officer, to either the office of the CVC, or the office of the Central Bureau of Investigation, or both, for advice. Thereafter, when once the CBI or the CVC have given any advice or opinion on that matter, or regarding those files, it is quite obvious that the streams of natural justice got polluted, and cannot and do not flow free. It would be futile to imagine that the Disciplinary Authority would still then be able to apply his own independent mind, and arrive at his own independent conclusion, independent of the opinion in writing given by the Central Vigilance Commission or the Central Bureau of Investigation. This apprehension was expressed in the following words by the Honble Punjab and Haryana High Court in the case A.K. Roy Choudhry Vs. Union of India & Ors., 1982 (1) SLR 443 Punj :-
The opinion of an august body like the Central Vigilance Commission would obviously carry great weight with the Disciplinary Authority in reaching a final conclusion. At any rate, the possibility of such an influence cannot be negatived. (Emphasis supplied) 74- In the instant case, it is seen that the departmental inquiry proceedings against the applicant appear to have been vitiated from the very beginning. Firstly, it is seen that the whole departmental inquiry case against the applicant has been dealt with throughout by the Vigilance section of the Telecom Department, while, while after having detected a suspected wrong doing, the only action expected of the Vigilance Wing was to report the matter to the Disciplinary Authority of the respondent delinquent Government official concerned, and to transfer all the papers and documents, and thereafter to stop dealing with the matter altogether, as the Vigilance Section, having been clothed with the cloak of Investigating officer or agency, could not have thereafter continued to perform any of the functions which have been specifically assigned to the quasi judicial authorities created and designated by the CCS (CCA) Rules, 1965. Therefore, continued involvement of the Vigilance Section of the Department of Telecommunication with the case from 2002 till date, is declared as illegal, and is set aside. The issue raised at para 40 (b) / ante is answered accordingly.
75- It is further seen that even the Vigilance Section of the Department of Telecommunication had also not acted on its own wisdom. The matter was referred by the Department of Telecommunication reference No. 9-46/2002 Vigilance-I dated 26.12.2002 to the Central Bureau of Investigation and the CVC, in response to which the CVC issued ID Note dated 17.02.2003 produced by the applicant at Annex. A/5 which sates as follows :-
CONFIDENTIAL CENTRAL VIGILANCE COMMISSION DOTs ref :- 9-46/2002-Vig.I dated 26.12.2002 The Commission in agreement with the CBI and Department of Telecom advises launching of prosecution against :-
S/Shri
1. Shri S.S.Rawat, the then JTO.
2. Shri G.R. Dodara, SDE.
3. Shri R.K. Vyas, DE And RDA for major penalty proceedings against :-
1. Shri S.S. Rawal the then JTO.
2, Shri T. R. Rawat, JTO.
3. Shri G.R. Godara, SDE.
4. Shri A. Thomas, SDE.
5. Shri R.K.Vyas, DE.
6. Shri D.L. Mandrawalia, DE.
7. Shri Prem Prakash, DE.
8. Shri B.L. Chauhan, SDE.
Further, in view of the facts brought out in respect of Shri R.K. Soni, CAO, the Commission advises closure of the case against him.
Department of Telecom may appoint their own IO to conduct oral inquiry in respect of major penalty proceedings and revert to the Commission for 2nd stage advice in due course.
All the documents & files received alongwith the subject reference are returned herewith. Sd//-
(R.L.Banerjee) Director Department of Telecom (Shri G.S.Grover,Sr.DDG (V) New Delhi.
CVCLD Note No. 002/P&T 233 76- It is thus seen that in fact it was Shri R.L.Banerjee, the Director of office of the CVC, who had applied his mind, and stated that the CVC was in agreement with the Central Bureau of Investigation and the Department of Telecommunications, and it was he who had advised launching of Criminal prosecution case against Shri S.S. Rawal, JTO, Shri S.R. Godara, SDE and Shri R.K.Vyas, D.E., and had further advised for initiation of major penalty disciplinary proceedings against the eight named officials, Shri S.S. Rawal, Shri T.R. Rawal, Shri G.R. Godara, Shri A. Tomas, Shri R.K. Vyas, Shri D.L. Mandravalia, Shri Prem Prakash (applicant) and Shri B.L. Chouhan. Further, it was only Shri R.L. Banerjee, the Director in the office of CVC, who had come to the conclusion that in view of the facts brought-out, in respect of Shri R. Soni, CAO, the CVC had advised closure of the case against him. The next sentence in the Note stated that the Department of Telecom may appoint their own Inquiry Officer to conduct an oral inquiry in respect of the major penalty proceedings and revert to the CVC for second stage advise in due course. Therefore, it is very very clear from this Note dated 17.02.2003 cited above, issued by Shri R.L. Banerjee, Director of the Office of the CVC to Senior Deputy Director General, Department of Telecom, that there was no independent application of mind on the part of the Disciplinary Authority of the applicant herein, for deciding to initiate major penalty proceedings, and that the initiation of the major penalty proceedings against the applicant was in fact dictated by the office of the CVC through Note dated 17.02.2003, which was beyond its competence, either under the Ordinance under which the office of the CVC was working on that date, or even now under the CVC Act, 2003 (Act No. 45/2003), which came into effect on the statute book only w.e.f. 11.09.2003.The suggestion made by Shri R.L.Banerjee, Director of the Office of the CVC, for initiation of major penalty departmental proceedings against the eight officials named therein, including the applicant, was beyond his competence and jurisdiction, and is therefore declared as having been inconsequential under the law, and void ab initio, and is struck down as illegal. Still, this illegal communication from the Office of the CVC alone formed the basis of issuance of the Memorandum of Charges against the applicant through Annex. A/1 dated 10.09.2003, as has been mentioned earlier also. However, it appears that, as rightly pointed out by the applicant, the respondent authorities have discriminated against him, in as much as different conclusions appear to have been arrived at in the eight different department inquiries, on similar facts, and the issue raised at para 40 (a) / ante is answered accordingly.
77- Further, the Memorandum of Charge and the Articles of Charge were issued to the applicant under the signatures of Shri S.D. Kaushik, the Assistant Director General, V.T., in the Vigilance Wing of the Department of Telecommunication, which is also illegal per se, because, as explained above, nobody Incharge of Vigilance can perform any of the statutorily quasi judicial functions of the Inquiry Authority, the Disciplinary Authority, the Appellate Authority, or the Revisional Authority, wherever applicable. Therefore, the very institution of the departmental inquiry against the applicant was also illegal, and Articles of Charge served under the signatures of the Additional Director General (Vigilance) were also illegal, and these communications are also set aside as illegal under the Common Law principles of natural justice, as discussed above / earlier in detail.
78- The Inquiry Report in respect of the disciplinary inquiry conducted was later sent to the applicant with the cover letter of Annex.A/6 dated 19.05.2005 as already mentioned and reproduced above. However, in between the date of the finalization of the report of the Inquiry Officer by the Inquiry Authority on 23.05.2005, and the date of issuance of Annex. A/6 dated 19.05.2005, the respondent authorities conducted a further illegality in once again sending their whole file No. 8/98/2003 Vig-II to the office of the CVC on 11.04.2005. From Page No. 55-A of the OA, reproduced above at para 6/ante, we can see the opinion then furnished on 27.04.2005 by the office of the CVC, which formed a part of the Annex.A/6 as supplied to the applicant. From the contents of that Memorandum Annexure A/6 dated 19.05.2005, reproduced above at para 6/ante, it is seen that once again it was the CVC office alone which after having perused the inquiry report, along with its relevant records, and comments of the administrative authorities thereupon, had arrived at / come to the conclusion of not agreeing with the findings of the Inquiry Authority. Instead, it chose to concur with the comments of the administrative authorities of the applicant in the Department of Telecom, that a part of the charges against the applicant herein were proved, and that there was adequate evidence on record, and that the charged officer/applicant had knowledge that both the Cables were laid in the same Trench, and that the evidence as adduced also revealed through the deposition of witnesses that the charged officer had made two payments as if the two works were done/executed separately. Thus, it was not the designated Disciplinary Authority, but Shri Yogesh, Director of the office of the CVC, who came to the conclusion that when the charged officer/applicant had knowledge of these facts he should have thoroughly investigated the matter, and he then went on to advise the department for the imposition of a suitable major penalty on the applicant herein, while returning the complete records to the Department of Telecom through his I.D. Note dated 27.04.2005 (page 55/A of the O.A., reproduced at para 6/ante).
79- Thereafter, the Memorandum dated 19.05.2005 (Annex.A/6) was issued and signed by the Desk Officer (Vig.-II) Shri A.K. Patro. Here, it would be seen that the respondent authorities are further claiming that this Memo (Annex.A/6) was issued by order and in the name of the President, although it was not mentioned as to which particular officer, of what designation, had acted in this case on behalf of the President of India as the designated Disciplinary Authority of the delinquent Government official / applicant. Since such memorandum of dis-agreement with the findings of the Inquiry Authority could have been issued only and only by the designated incumbent officer holding the charge of the post designated as the Disciplinary Authority of the delinquent Government official for acting on behalf of the President in substantive capacity, and not even in any additional charge, or any charge of looking after the current duties, as mentioned above, at least the designation, if not the name also, of the individual incumbent officer who had acted for and on behalf of the President of India in this case, ought to have been mentioned, so that the mind which was applied to consider the case can be identified, as the President himself does not apply his own mind in such cases.
80- This memorandum also was signed by the D.O.Vig.-II, where once again it is seen that the Vigilance Section of the Department of Telecommunication continued to abrogate to itself the quasi judicial functions of the designated authorities, as laid down by the CCS (CCA) Rules, 1965, which power or function it could not have exercised/possesseed at all. Secondly, very blatantly, and un-abashedly, this Memorandum went on to mouth the very same exact words as were recorded by Shri Yogesh, the Director of the Office of the CVC, in his Note dated 27.04.2005 (reproduced at para 6/ante) as the ground for dis-agreement with the findings of the Inquiry Authority, without giving any basis or details of that portion of the documentary or oral evidence adduced during the disciplinary enquiry, which was considered not worth being relied upon by the Disciplinary Authority acting in his individual substantive capacity, for arriving at such a conclusion. Thirdly, when the Articles of Charge against the applicant had been framed under the signatures of Assistant Director General (VT), under the signatures of Shri S.D. Kaushik, posted in the Vigilance Wing, through Annex. A/1 dated 10.09.2003, no authority or Officer lower than that rank / post could have even tried to assume the functions of the Disciplinary Authority, which functions in this case were abrogated by the Desk Officer, by merely mentioning to have acted for and on behalf of the President. This entire process is abhorrent and unacceptable under all tenets of administrative law.
81- Also, when the delegation of the powers of the Honble President of India within the Department of Telecom does not appear to have been properly laid down, and no authority has been apparently designated as the Disciplinary Authority of the delinquent / applicant under the CCS (CCS) Rules, 1965, and there is no evidence brought on record that the orders of the President of India himself were obtained, merely mentioning in a routine manner that such Memorandum was issued by order or and in the name of the President of India was clearly illegal, and deserves to be set aside, and therefore Annex.A/6 is also separately set aside as illegal. Therefore the issue framed at para 40 (c)/ante is answered accordingly.
82- It is not as if the powers and functions of the President of India cannot be delegated and performed by anybody else. The Honble Supreme Court has clarified in Samsher Singh Vs. State of Punjab, AIR 1974 SC 2192 : (1974) 2 SCC 831, that even a Minister of the Union Cabinet, or Minister of State, or a Deputy Minister, or a Secretary of the Government of India, can perform even those functions which were required by the Constitution to be performed on the subjective satisfaction of the President, e.g. under Proviso (c) to Article 311 (2), by a process of delegation by Rules of Business made under Article 77 (3), and this principle was extended even to a quasi-judicial function, through Union of India vs. Sripati Ranjan Biswas, AIR 1975 SC 1755 : (1975) 4 SCC 699. Prior to that also, the Honble Delhi High Court had held that even an Additional Secretary, or a Joint Secretary, or a Director, or a Dy. Secretary, or an Under Secretary, can perform the Executive functions, which a statute may mention to be performed by order and in the name of President of India, but only if the specific authority to do so in this regard had been delegated to that level (Ministers or officials) by a separate Gazette Notification : Labh Singh Atma Singh Vs. Union of India & Ors., AIR 1970 Delhi 171.
83- Here, in this case, when the Assistant Director General had found himself competent to issue the initial Articles of Charge, by no stretch of imagination could a Desk Officer have been designated as the Disciplinary Authority of the applicant /delinquent Government official, that too stating to have acted by order and in the name of the President of India. But since a number of authorities, at various levels of seniority, can be notified to perform the functions for and on behalf of the President, the levels of finality of decisions taken For and on behalf of the President of India can also be prescribed differently. As a result, it follows that the decisions of an officer authorized to act on Presidents behalf as a Disciplinary Authority can be appealed against before another next higher level officer, who is also so authorized to act on the Presidents behalf, but as the Appellate Authority, and the same would apply to the officer at further next higher level authorized to act as Revisional Authority on the Presidents behalf. The issue framed at para 41 (f) ante is therefore answered accordingly, and it is held that an order passed in the name of the President by the Disciplinary / Appellate Authority can be changed or revised by another order, passed once again in the name of the President, by the designated next higher Appellate / Revisional Authority, if such authorities have been Gazette notified to so act for and on behalf of the President for performing those statutory functions. This, to our mind, flows from the orders of the Honble Delhi High Court in the case Labh Singh Atma Singh Vs. Union of India & Ors. (supra), and Honble Apex Courts ruling in the case of Sripati Ranjan Biswas (supra), as a necessary concomitant principle.
84- The applicant however, replied to this Memorandum issued by the Desk Officer Vigilance II, Department of Telecommunications on 19.05.2005 at the behest of the Director of CVC. However, the respondents authorities referred the reply of the applicant to the UPSC through their letter No. 8/98/2003 Vig.II dated 31.10.2005, which, though not produced, has been mentioned by the UPSC in their reply dated 18.07.2006, produced as part of Annex.A/2 at pages 26 to 31. But, this reference to the UPSC also appears to have been legally defective, in as much as the point of time or stage at which such reference was made.
85- Rule 29 of the CCS (CCA) Rules,1965, does provide for consultation with the UPSC, and prescribes that the UPSC may advise the Government in regard to the quantum of punishment to be imposed, as provided for under Article 320 (3)(c) of the Constitution of India, but by no stretch of imagination can such advise of the U.P.S.C. be sought when prior to that itself it has been stated that the previous Memorandum itself was issued by order and in the name of the President of India. There appears to be no provision for U.P.S.C. to tender any advice in cases where orders have already been passed by order or in the name of the President.
86- Once again, in the opinion of the UPSC, signed by the Deputy Secretary, and sent back on 18.07.2006, the whole facts of the case were re-appreciated by the U.P.S.C. once again, and the UPSC in fact gave the advise that the ends of justice would be met if a penalty of 5% cut in pension for a period of three years was imposed on the applicant. Thereby, thus once again the independence of the quasi-judicial functioning of the Disciplinary Authority was compromised, inasmuch as no scope was left by the U.P.S.C. for the Disciplinary Authority to arrive at an independent conclusion of his own, different from that of UPSC, for the appropriate penalty to be imposed upon the delinquent Government official. By blindly following the advise of first the CVC, and then the UPSC, the order passed on 20.09.2006 (Annexure A/2), without giving any supportive reasons, and signed by Shri A.K. Patro, Desk Officer Vigilance-II, goes against the very basis of the CCS (CCA) Rules,1965, and the legality of the orders which may be passed under CCS (CCA) Rules,1965, and was entirely illogical and abhorrent in the eyes of law, and is struck down as illegal.
87- The legal position arising out of the consultation with the UPSC and with the Central Vigilance Commission, has come to be analyzed in a number of cases. The Honble Supreme Court has considered the issue of the nature, impact, and the follow-up action required on the consultation with the U.P.S.C. prescribed under Article 320 (3) (c) of the Constitution in the following landmark cases : (1) Union of India & Anr. Vs. T.V. Patel, (2007) 4 SCC 785; (2007) 5 SCR 373; (2) State of UP Vs. Manbodhanlal Srivastava, AIR 1957 SC 912 : 1958 SCR 533;, and (3) Ram Gopal Chaturvedi Vs. State of M.P., (1969) 2 SCC 240: AIR 1970 SC 158: 1970 (1) SCR 472. It has been held that though the advice given by U.P.S.C. need not be supplied to the delinquent Government official, the recommendations of the U.P.S.C. are not binding upon the Disciplinary Authority, who still has the responsibility and legal duty to arrive at his own independent decision on the quantum of punishment to be imposed on the delinquent official. In the case of State of U.P. Vs. Manbodhan Lal Srivastava (supra) the Honble Apex Court noted that the process of consultation with the UPSC under the provisions of Article 320 (3) (c) of the Constitution of India was not complied with, and the Constitution Bench of the Honble Supreme Court had held that the provisions of Article 320 (3) (c) of the Constitution of India are not mandatory, and that they do not confer any rights on a public servant, so that absence of consultation with the U.P.S.C., or any irregularity in consultation with the U.P.S.C., does not afford him a cause of action in courts of law. But, in the instant case, it does not appear that after obtaining the report / advise of the U.P.S.C., the designated Disciplinary Authority had performed its legal duty and fulfilled the responsibility to arrive at his own independent decision on the quantum of punishment to be imposed on the applicant as the delinquent official.
88- In the case of A.N. DSilva Vs. Union of India, AIR 1962 SC 1130 : 1962 (Supp) 1 SCR 968, the Division Bench of the Honble Supreme Court held clearly that just because Article 320 (3) of the Constitution of India provides that the UPSC shall be consulted in all disciplinary matters affecting a person serving under the Government of India in a civil capacity, the UPSC does not become an Appellate Authority over the Inquiry Officer, and that the President is in no way bound by the advise of the Union Public Service Commission. Therefore, it was made amply clear by the Honble Supreme Court that even if while making their recommendation or tendering their advise the Union Public Service Commission may have expressed an opinion or a conclusion on the merits of the case, as to the misdemeanour alleged to have been committed by a public servant, and such conclusion may be different than the conclusion of the Inquiry Officer, the U.P.S.C. opinion is not binding.
89. In the case of N. Rajarathinam Vs. State of Tamil Nadu and Another (1996) (10) SCC 371, the Tamil Nadu Public Service Commission, when consulted, had recommended to take a lenient view in the matter, but the Government had not accepted the recommendation. The Honble Supreme Court again held that under Article 320 (3) (c), the view of the Public Service Commission being only recommendatory, the Government was not bound to accept the recommendation made by the Public Service Commission. The Honble Supreme Court reiterated that it is only for the Statutorily prescribed Disciplinary Authority to take into consideration all the relevant facts and circumstances, and if the Disciplinary Authority finds that the evidence establishes misconduct against the public servant, the Disciplinary Authority is perfectly empowered to take appropriate and independent decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be imposed is also only for the Disciplinary Authority alone to independently consider, and take a decision, keeping in view the discipline in the service.
90- Once again in the case of Union of India and Another Vs. T.V. Patel,(supra) consultation with the Public Service Commission under Article 320(3)(c) on all disciplinary matters came to be examined, and it was again held by the Honble Supreme Court that since the process of consultation itself is not mandatory, the absence of consultation, or any irregularity in consultation process, or any illegality in furnishing a copy of the advise tendered by the Public Service Commission to the delinquent Government official, does not confer the official a cause of action in a Court of law. The Honble Supreme Court went on to clarify that under Rule 32 of the CCS (CCA) Rules, 1965, the expression along with the copy of the order passed in the case by the authority making the order, would mean only the final order passed by the authority imposing penalty on the delinquent Government servant.
91- Needless to add here that since neither the UPSC nor the CVC, have been designated as a tier of the prescribed statutory authorities under the CCS (CCA) Rules, 1965, to decide about imposing a penalty on the delinquent Government servant, they cannot also suggest any penalty, and even if the UPSC suggests such a penalty, the Constitutional provisions concerned do not require the Disciplinary Authority or the Appellate Authority or the Revisional/Review Authority to consider and necessarily follow the opinion or advise tendered by the Public Service Commission. Since the CVC does not have any constitutional basis or foundation, its advise, obviously, would carry even lesser weight than that of the U.P.S.C. The issue raised at para 40 (d) / ante is therefore answered accordingly.
92- Also, while the Union Public Service Commission finds mention at a place in the CCS (CCA) Rules, 1965, on the contrary it is seen that the Central Vigilance Commission, which had already been created a year earlier, in 1964, though as a non-statutory body then, does not find even a mention in the CCS (CCA) Rules,1965. Therefore, it is clear that the Legislature never intended for the CCS (CCA) Rules, 1965, to provide for any consultation whatsoever, at any stage whatsoever, with the Central Vigilance Commission, since such a consultation, or opinion furnished by the CVC, may affect or influence the mind of the prescribed statutory authorities, the Disciplinary Authority, or the Appellate Authority, or the Revisional / Review Authority concerned. In the case of State of A.P. Vs. Nizamuddin Ali Khan, S.N., AIR 1976 SC 1964 : 1977 (1) SCR 128 : (1976) 4 SCC 745; 1977 (2) LLJ 106, it was clearly laid down by the Honble Supreme Court that the Disciplinary Authority cannot act on the basis of the report of any person other than the Inquiry Officer, without giving the delinquent an opportunity to meet the contents of that report. In a case specifically concerning consultation by the statutory authorities with the CVC, which reached the Honble Supreme Court, Sunil Kumar Banerjee Vs. State of West Bengal and Others, AIR 1980 SC 1170 : (1980) 3 SCC 304 : 1980 (2) SLR 147, it was found by the Honble Supreme Court that though the Disciplinary Authority had consulted the Central Vigilance Commission, but the records disclosed that the conclusion of the Disciplinary Authority was arrived at independently, on the basis of the relevant record, and the Honble Apex Court also noted that there was no reference of the advise of the Central Vigilance Commission in the preliminary findings of the Disciplinary Authority as communicated to the delinquent officer. It was held by the Honble Supreme Court that since the Disciplinary Authority had not in any manner been influenced by the advise of the Central Vigilance Commissioner, no illegality had taken place in that particular case. Therefore, the crux of the matter lies in the influence which the CVCs opinion can have on the minds of the statutory authorities concerned with the disciplinary proceedings, which influence has to be, and must be avoided at all costs, even if the CVC has been consulted.
93- But, it is not so in the instant case before us. In the case before us, not only has the opinion or advise of the Central Vigilance Commission been referred to by the purported Disciplinary Authority while communicating its findings of supposed dis-agreement with the findings of the Inquiry Officer exonerating the applicant, but, further, it is quite obvious that the conclusions of the purported Disciplinary Authority were not arrived at independently of the opinion of the CVC, and were not arrived at only on the basis of the relevant records. From the language of the impugned Memo itself it is clear that the decision to differ with the findings of the report of the Inquiry Officer exonerating the applicant was wholly influenced by the advise of the Central Vigilance Commission, and, therefore, the process of natural justice stood grossly vitiated in this case.
94- In another case, the Gujarat High Court also considered the effect of the comments of the opinion of the Central Vigilance Commission, which were taken into account by the Disciplinary Authority, in the case of A.K. Roy Choudhry Vs. Union of India and Others, 1982 (1) SLR 443. The Honble High Court came to the conclusion as follows :-
5. From what has been quoted above, it is clear that the comments and opinion of the Central Vigilance Commission were taken into account by the Disciplinary Authority. The opinion of an august body like the Central Vigilance Commission would obviously carry great weight with the disciplinary authority in reaching a final conclusion. At any rate, the possibility of such an influence cannot be negatived.
6. In this view of the matter, I find that the impugned order, Annexure D, cannot be allowed to stand. On this short ground, I declare that the impugned order, Annexure D, is bad at law and is inoperative. 95- To sum up, it is clear that while consultation with the Union Public Service Commission is a Constitutional provision through Article 320 (3) (c) of the Constitution, the consultation with U.P.S.C. may or may not be availed of by the Disciplinary Authority, or the appellate Authority, or the Revisional/Review Authority, since, as has already been held by the Honble Courts in numerous cases, as cited above, such consultation is not mandatory, and even the advise tendered by the Union (or State) Public Service Commission is not binding upon any of the statutory authorities involved in the process of conducting and concluding a departmental disciplinary enquiry.
96- Further, even though the jurisprudence on the jurisdiction of the Central Vigilance Commission, first as a non-statutory body, and then as a statutory body under an Ordinance, and, then again as a non-statutory body, and then as a statutory body under the Central Vigilance Commission Act, 2003, has developed along with the development of the case law on the CCS (CCA) Rules, 1965, the framing of which had followed the creation of Central Vigilance Commission by one year, yet, since even as yet no amendment has been brought about by the legislature in the body of the CCS (CCA) Rules, 1965,to incorporate the Central Vigilance Commission at any stage / pedestal above or below the Disciplinary Authority, or the Appellate Authority, or the Revisional/Review Authority as prescribed in the CCS (CCA) Rules, 1965, any consultation with, or seeking the opinion from the Central Vigilance Commission in regard to the disciplinary inquiry matters, is illegal, and uncalled for, and is hereby declared as ultra vires.
97- The CVC cannot be allowed to abrogate to itself power without responsibility. While the incumbent officers functioning as the Inquiry Officer, the Disciplinary Authority, the Appellate Authority and the Revisional / Review Authority, as the case may be, are all enjoined by the statute and subordinate legislation to function in quasi judicial capacity in the conduct and conclusion of a disciplinary enquiry, and to apply their mind alone, independently, without heeding to any outside instructions or influence, as is wont of persons acting in judicial or quasi-judicial capacity, no such legal / statutory duty has been cast upon the CVC in respect of giving any opinions in the matters related with the conduct and conclusion of departmental enquiries, by any portion of the law, even the Central Vigilance Commission Act, 2003, or the CCS (CCA) Rules, 1965, or any other statutes, rules or regulations issued in this regard. The Central Vigilance Commission cannot therefore be allowed to enjoy un-bridled power without responsibility, and assume or have a role of a prosecutor, giving its opinions in between the quasi judicial functions of the various stages of statutory authorities involved in the conduct and conclusion of a disciplinary inquiry, in between the prescribed stages of decision making from the level of Inquiry Officer, to the Disciplinary Authority, to the Appellate Authority, and to the Revisional / Review Authority. Moreover, any such examination of the files and records of a particular disciplinary enquiry case by the Central Vigilance Commission in between the various statutorily prescribed stages of the disciplinary enquiry, would be behind the back of the delinquent Government Officer, and without giving him an opportunity of being heard. Therefore, the expression of any opinion or advise about the guilt or otherwise of the delinquent by the Central Vigilance Commission is entirely against the Common Law principles of natural justice, as well as being against the rules for the conduct of disciplinary inquiries framed under Article 311 of the Constitution, and also against the Fundamental Rights of the concerned delinquent Government servants under Article 14 of the Constitution of India. The issue raised at para 40 (e) / ante is therefore answered accordingly.
98- According to News Paper Report of Press Trust of India published from Kochi dated 28.09.2011, the Central Vigilance Commission has sought an exclusive investigation bureau under it, to deal more efficiently with cases of corruption and ensure speedy prosecution, which may be reproduced below :-
There is need for creation of a dedicated investigation wing as certain important cases are enquired into directly by the commission, Central Vigilance Commissioner, Mr. Pradeep Kumar said. At present, the CVC refers to the CBI cases pertaining to criminal conspiracy among others. The CVC has been mandated by the Act to exercise superintendence over the entire vigilance administration. However, the Act requires the CVC to exercise this function according to the directions issued by the government, thus limiting its independence, Mr. Kumar said.
The commissioner said the CVC also plans to enhance the standards of vigilance investigation by improving certain guidelines. Prevention has to be combined with strong deterrent action against officials found guilty of unethical behaviour. Our aim would be to deal ruthlessly with acts of corruption while at the same time ensuring that the honest have nothing to fear, he said. To make the work of vigilance more objective and efficient, the commission is developing standards for the conduct of vigilance investigation and reporting, he added. The probity watchdog has also sought adequate manpower and resources. 99- These comments and aspirations of the CVC are wholly welcome, as long as the process and procedure adopted by it remains confined to vigilance investigation, and entrustment of the cases to the investigation agency. After having performed this task, the CVC cannot thereafter be expected to, or allowed to, perform quasi judicial functions of trying to be involved in the process as prescribed by Art. 311 of the Constitution, for departmental proceedings being initiated for the dismissal, removal, or reduction in rank etc. of the delinquent Government officials, and also to give any opinion at any stage or level whatsoever regarding the disciplinary inquiry being conducted. The role of the Central Vigilance Commission appears to have been designed by the Legislature more towards tackling the criminality, or to the criminal aspect of the corruption, and it is far removed from the aspect of civil liability of departmental punishment to be imposed by the departmental authorities. CVC would do well if, while trying for enhancing its powers to investigate the cases of corruption, and entrust the cases for investigation to either the Central Bureau of Investigation, or to the newly proposed agency, the office of the CVC keeps away from the progress of and the outcome of the departmental inquiry, which may follow as a result of its recommendations, and refrain from giving any opinion whatsoever, regarding any such departmental inquiry, at any stage of the inquiry whatsoever.
100- It is further observed that the Central Bureau of Investigation also has, in its CBI (Crime) Manual, 2005, provided for having arrangement or tie-up with the State Police, or with the State Level Anti-Corruption or Vigilance set-up, so that, without waiting the Central Bureau of Investigation to move in,the State Police may take an immediate action in respect of certain circumstances as enumerated in Para 1.11 of Chapter I of the Central Bureau of Investigation Manual, 2005, as follows :
1.11 It has also been agreed that the State Police or Anti Corruption / Vigilance set up may take immediate action in respect of the Central Government Employees in the following circumstances :-
a. Where there is a complaint of demand of bribe by a central government employee and a trap has to be laid to catch such employee red-handed, and there is no time to contact the Superintendent of Police concerned of the CBI, the trap may be laid by the State Police / Anti Corruption or Vigilance set-up and, thereafter, the CBI should be informed immediately and it should be decided in consultation with the CBI whether further investigation should be carried out and completed by the State Police or by the CBI.
b. Where there is likelihood of destruction or suppression of evidence if immediate action is not taken, the State Police / Anti Corruption or Vigilance set-up may take necessary steps to register the case, secure the evidence and, thereafter, hand over the case to the CBI for further investigation.
c. Information about cases involving Central Government employees, who are being investigated by the State Police / Anti Corruption or Vigilance set-up, should be sent by them to the local CBI branch, Head of the department and / or the office concerned as early as possible but, in any event, before a charge sheet or a final report is submitted.
d. All cases against Central Government employees which are investigated by the State Police / Anti Corruption or Vigilance set up and in which it is necessary to obtain sanction for prosecution from a competent authority of a Central Government Department shall be referred to the competent authority directly under intimation to the CVC. 101- This procedure can be continued to be adopted in respect of the criminality aspect of corruption, but its influence or overlapping with the aspect of departmental proceedings cannot be allowed at any stage whatsoever, in any manner whatsoever.
102- A few more points may perhaps require / need to be added here. Many States have created the office of an Ombudsman, or the Lokayukta, and the Parliament has for consideration before it a Bill introduced before the Lok Sabha for the introduction of an Omnipotent Central Ombudsman, or Lokpal. One stream of social activists, who are quite vocal in this regard, had even drafted their own parallel Jan Lokpal Bill, and are trying to influence the Parliament through all means fair and foul for their version of the Jan Lokpal Bill alone to be considered and passed by the Parliament. Their objectives and intentions are good, as they believe that such an omni-potent Jan Lokpal would help in curbing corruption in the Government at all levels, and they also believe and state that the people of India in general are behind their version of an omni-potent Jan Lokpal authority being created. The Standing Committee of the Parliament has been recommended for Constitutional Authority status to be given to this upcoming omni-potent Ombudsman.
103- However, it may be made clear here that while the task of finding out the cases of corruption, and individual Government servants guilty of corruption, and locating such individuals liable to be held responsible, and trying to prosecute them, which is presently a function of the Vigilance Wing or Sections of the different Ministries and Departments / Organizations of the Union of India, and all the States, can perhaps be entrusted to and performed by such an Ombudsman, a Lokpal or a Jan Lokpal, either in abrogation of the powers of the CVC, or in addition to the powers already given to the CVC, or by bringing CVC under it. However, it is hoped that before the Parliament proceeds ahead for passing such amendment to the Constitution of India, it would do well for the Government to remind the Parliament that this Nation takes pride in having maintained its purity of purpose in the Common Law principles of natural justice being followed in this country.
104- Even the United Kingdom, from where the Common Law Principles were inherited by India, has, over the years, under the influence of the European Commission, and in order to bring their Acts and Rules in the line with their Treaty Obligations under many European conventions, diluted the purity of the Common Law principles in the laws as prevalent as on today in the United Kingdom. In the United Kingdom, itself, over the past 10-15 years, the Common Law principles are being sacrificed in the new enactments passed by the Mother of all Parliaments, the Parliament of the United Kingdom, and the European principles of Civil Law are creeping into (and have actually already crept into) the legal system of the United Kingdom. Under the European system of Civil Laws, a total separation of prosecution and judicial functions is not essential, particularly neither in France, and nor in Italy, where the extreme form of Prosecutor-Judges is in force, and in vogue. India so far does not have that stream of Civil Law principles flowing in any portion of the laws enacted so far in this country.
105- Therefore, even the Lokayuktas at the State level, or the proposed Lokpal / Jan Lokapal at the National level, would have to be very resolutely and consciously kept away from the realm of all the quasi judicial functions associated with conducting and concluding a disciplinary inquiry against the delinquent Government officials, and punishing them only if the guilt of the delinquent Government official is established after the complete statutory process of quasi-judicial functions having been performed by the Inquiry Officer, the Disciplinary Authority, the Appellate Authority, and / or the Revisional Authority, as the case may be, has been gone through. In no case can the Lokayukta at the State level, or the proposed Lokpal or Janlokpal at the Union of India level, be allowed to transgress these limits, and to become, or to try to become, both a prosecutor and a judge.
106- It is a cardinal principle of our Constitution that no authority howsoever highly placed, and no authority howsoever lofty in its objectives, can claim to be the sole judge of its own powers, and to decide as to whether its actions are within such powers, as laid down by the Constitution of India. If a State Lokayukta, or the Central Lokpal/ Jan Lokpal has to be made powerful, it can have all the powers of detection of corruption and misfeasance on the part of the Government servants, or powers to take steps to suggest to prosecute them. But, they cannot have any powers associated with the process of punishing such cases of corruption / misfeasance, and cannot be involved in the statutorily prescribed process of imposing any penalty on the delinquent Government officials, which process can only be gone through by the prescribed statutory authorities, after having scrupulously followed the rigorous procedure prescribed for holding and concluding the departmental inquiries under the CCS (CCA) Rules, 1965, and other parallel rules at the State level.
107- Such a Lokayukta at the State level, and a Lok Pal / Jan Lokpal at the Central Level, can have a role in prosecuting corrupt officials, and to file complaints, and, perhaps, even assist the prosecution counsel before the trial Courts. But they can have no role at all in departmentally punishing the corrupt officials, and the powers under Article 311 of the Constitution, to dismiss, remove, diminish in rank, or otherwise impose a penalty, shall have to be continued to be exercised by only the four statutorily prescribed authorities concerned, un-influenced by the Lokayukta/Lokpal/Jan Lokpal.
108- One shudders when one reads in the news papers about the suggestion of some over-zealous persons from the so-called Civil Society that it should be proposed that the State level Lokayukta, or the Central Lokpal / Jan Lokpal should have powers to attach the property of delinquent Government officials, and take coercive methods against them, even before and without giving them an opportunity of being heard. One is astonished to see as to the level of deviation from the principles of Common Law, and even the much different principles of Civil Law, as prevalent in the European Continent, which the proponents of such draconian provisions are espousing / proposing. One only hopes that any such suggestion would be nipped in the bud as obnoxious, and shown the contempt which it deserves by the Parliament itself also. The Constitutional matrix in India, and the universally accepted Criminal Jurisprudence the world over, specifically stipulates the exclusion of any form of bias. To ensure this, a separation of the overall functions into investigation, prosecution, and then only Judging, is brought out through various methodologies and vehicles. The only exceptions are when Legislature acts under its Privilege Jurisdiction, and Judiciary acts under its Contempt Jurisdiction. Therefore, processes and procedures in Administrative Law must ensure certain exclusivity in each of the stages of the process, whether by bringing in different organs to bring about this, or by any other adequately reasonable and legal process.
109- In the instant case, the Vigilance Wing/ section of the Department of Telecommunication has been involved in all stages of the disciplinary inquiry conducted against the applicant, and, therefore, the whole process of the disciplinary inquiry conducted against the applicant is illegal, improper and unjustifiable in law, as the Incharge of investigating and prosecuting the Government servant concerned cannot be allowed to also function in quasi judicial capacity as the Disciplinary Authority, or the Appellate Authority, or the Review Authority. The issues raised at para 41 (g) and para 41 (h) / ante are therefore answered accordingly.
110- One issue which arises is regarding the time from which these observations and directions/orders regarding the role of C.V.C. in departmental proceedings could be made applicable. As was observed by Justice K. Ramaswami in his consenting but clarificatory comments in the Constitution Bench judgment in Managing Director, ECIL, Hyderabad vs. B. Karunakar, (1993) 4 SCC 727 : AIR 1994 SC 1074 : 1994 (1) LLJ 162:JT 1993 (6) S.C.1, in paragraph 67, when judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions, or prospectively to the transactions in future only.
It was observed by the Honble Supreme Court that prospective overruling limits the application of the principle to only the future situations, and excludes the application of the principle to situations which have arisen before the decision was evolved. It was mentioned by the Apex Court that the Supreme Court of the United State of America has consistently held that the American Constitution neither prohibits nor required retrospective effect, and, therefore, it is for the Court to decide, on a balance of all relevant considerations, whether a decision overruling a previous principle should be applied retrospectively or not. It was further observed by the Honble Supreme Court that the benefit of the decision must be given to the party before the Court, though applied otherwise to future cases from that date prospectively, and its benefits may not be extended to the parties whose adjudication had either become final or matters are pending trial or in appeal. In this context, it was observed by the Honble Supreme Court in para 73 of that Constitution Bench judgment as follows:-
73. ..This Court would adopt retroactive or non-retroactive effect of a decision not as a matter of constitutional compulsion but a matter of judicial policy determined in each case after evaluating the merits and demerits of the particular case by looking to the prior history of the rule in question, its purpose and effect and whether retroactive operation will accelerate or retard its operation. The reliance on the old rule and the cost of the burden of the administration are equally germane and be taken into account in deciding to give effect to prospective or retrospective operation. 111- The Honble Supreme Court has approved the doctrine of prospective overruling where it is imminently conducive to public interest in the cases Bapuram vs. C.C. Jacob, (1999) 3 SCC 36 and in Y.V. Rangaiah vs. J. Sreenivasa Rao, (1983) 3 SCC 284: AIR 1983 SC 852 : 1983 (2) LLJ 23. Also in the case of Ajeet Singh Singhvi Vs. State of Rajasthan, (1991) Supp.(1) SCC 343 : 1991 (1) SCR 579 : 1991 (2) LLJ 336, it has been laid down by the Honble Supreme Court that the Governments interpretation of its own Rules, and the policy decisions made thereunder should be respected by the Courts and Tribunals.
112- However, while deciding the Civil Appeal No.8568 of 2002 Union of India & Anr. Vs. I.P. Awasthi & Ors., on 16th February, 2006, the Honble Supreme Court had clarified that the doctrine of prospective overruling pertains only to the powers of the Honble Supreme Court itself, and that in respect of the Central Administrative Tribunal there is no such doctrine available for exercise of its powers.
113- Therefore, even though we may have wanted to make our findings / observations only prospective in nature, and to state that the status of the cases which have already been decided in past, in which the Central Vigilance Commission or the C.B.I. opinion had been sought and considered / taken into account by the statutory authorities, namely the Disciplinary Authority, or the Appellate Authority, or the Review/Revisional Authority, should not be affected by our orders and discussion / findings as above, but we find that we do not have any such powers, since the doctrine of prospective overruling is not at all available to us in the Administrative Tribunals Act, 1985, for exercise of powers to make our judgments applicable only prospectively in this regard.
114- Therefore, till either the Government of India comes out with the necessary clarifications of its previous instructions in this regard, or the Honble Supreme Court applies its mind to these issues, and decides to either apply or not to apply the doctrine of prospective overruling, which is within the powers of the Honble Supreme Court alone, it is clear that these orders will be operative to all cases of disciplinary proceedings in which the opinion of Central Vigilance Commission or the C.B.I. has been obtained by the departmental authorities, and taken into consideration by the statutory authorities, which has been declared by us to be ultra-vires and un-constitutional in the preceding paragraphs.
115- Incidentally, in this case, the Inquiry Officer was not from within the Vigilance set-up of either the Department of Telecom, or the BSNL. Therefore, it cannot be said that the report of the Inquiry Officer, and the findings of the Inquiry Officer were vitiated. However, since the Inquiry itself was instituted through a charge memo issued by the Vigilance Section, which could not have been the Disciplinary Authority of the applicant as a delinquent Government official, the whole process of conduct of the disciplinary inquiry, and all the impugned Annexures, are quashed, and the respondents are directed to restore full pension of the applicant, and pay to him all arrears of the pension deducted from his eligible pension, along with interest @ 6% per annum on all such arrears. The O.A. is allowed with the observations made as above, but there shall be no order as to costs.
116- For compliance and further necessary action, the Registry is directed to serve certified copies of this order on (1) The Union Cabinet Secretary (2) The Union Home Secretary (3) The Union Law Secretary (4) The Secretary of Department of Personnel and Training of the Union of India, (5) The Secretary, Union Ministry of Finance, and (6) The Central Vigilance Commissioner. They shall, singly and in concert, see to it that the findings arrived at, and the principles embodied in this order, be percolated down, and circulated to all the States, as well as the officers upto the level of District Magistrates / Superintendents of Police, and their equivalents in other services, as well as to the Chiefs of the Central and State Public Sector Undertakings, and other Instrumentalities of the State, within two months from today.
(Sudhir Kumar) (Dr.K.B.Suresh) Administrative Member Judicial Member jrm