Central Administrative Tribunal - Delhi
Dr. Jagannath Pati vs Union Of India Through Its on 4 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3000/2010 New Delhi this the 4th day of October, 2010. Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Dr. Jagannath Pati C-204, Fakirudin CGH Society, Plot No. 18, Sector-10, Dwarka, New Delhi-110075 Applicant (By Advocate Shri Apurb Lal) VERSUS 1. Union of India through its Secretary, Ministry of Women & Child Development, Government of India, Room No. , 6th Floor, Shastri Bhawan, New Delhi. 2. Central Adoption Resource Authority (CARA), Through its Secretary, Wing No.2, West Block-8, R.K.Puram, New Delhi. Respondents O R D E R Mr. L.K.Joshi, Vice Chairman (A):
Sh. Jagganth Pati, Deputy Director in the Central Adoption Resource Authority (CARA), the Applicant herein, is aggrieved by the issuance of the Memorandum of Charge dated 11.08.2010 because of which he is not getting vigilance clearance for selection to the post of Joint Director. The following reliefs have been sought:
(i) Set aside the Memorandum dated 11.08.2010;
(ii) Direct the respondent to issue vigilance clearance on quashing of the charge sheet dated 11.08.2010;
(iii) Call for the records;
Pass such other or further order (s) as may deem fit and proper to meet the ends of justice.
2. The Applicant approached this Tribunal in OA number 2290 of 2010 seeking vigilance clearance so as to be considered for the post of Joint Director. The vigilance clearance was not being issued because of the contemplated departmental inquiry against the Applicant. The Tribunal in its order dated 19.08.2010 observed thus in paragraph 9 of the order:
9. Having heard the learned counsel representing the parties, we are of the view, even though prima facie at this stage, that it would not be open for the respondents to withhold vigilance clearance if there be no element of doubtful integrity in the allegations subject matter of charge. Vigilance angle would inherently involve some culpable intention, as surely, there would be no cause for the respondents to withhold vigilance clearance with the allegations that may be ordinary in nature, like some procedural lapses or minor delinquencies indulged in by an employee. There have to be some over and undertones of doubtful integrity, even if not directly, then at least, indirectly. The applicant, it may be recalled, at the most, is charged with gross violation of General Financial Rules and procedures. There is no allegation against him that violation of the rules was actuated on mala fide considerations of gaining himself or making the concerned private parties unduly and unjustifiably gain. Every citizen has the fundamental right under Article 16 of the Constitution of equal opportunity in matters relating to employment to any office under the State. No doubt, even fundamental rights are subject to reasonable restrictions, and the Government would be well within its right to place restrictions, but then surely, the concerned restrictions have to emanate from instructions, and it is only in the cases covered thereunder that the Government may refuse vigilance clearance. It is not that the Government has not framed instructions, but it is quite apparent that there has been no application of mind whatsoever at the end of the respondents to find out as to whether the restrictions contained in the instructions would be enough to refuse vigilance clearance to the applicant. We, as advised at this stage, are not inclined to give a final view in the matter as to whether the allegations subject matter of charge against the applicant are such that as per instant instructions, the Government can withhold vigilance clearance to the applicant for his appointment as Joint Director. The Government is obliged under law to apply its mind and pass appropriate orders. At this stage, we may not also go into the question as to whether the instructions issued by CVC vide office order No.23/04/04 dated 13.4.2004, modified vide office order No.74/12/05 dated 21.12.2005 would be applicable in the case of Government employees as well, or that as to whether the plea raised by the applicant that clause (iii) of para 2(c) or that clause (ii) thereof, as contained in the instructions contained in DOP&T OM dated 14.12.2007, would apply. The following directions were given in the aforesaid OA:
10. In view of totality of the facts and circumstances of this case, we direct the respondents to deal with the case of the applicant as regards vigilance clearance expeditiously and definitely within a period of seven days, as any delay in the matter is bound to frustrate the very cause of the applicant. Surely, while making a decision in that regard, the respondents would deal with the matter as per instant instructions, be it the one issued by CVC vide office order dated 13.4.2004 as modified vide order dated 21.12.2005 or that issued by DOP&T vide OM dated 14.12.2007. We have already indicated the questions for determination as may be applicable and the contentions of the respective parties as well. We are sanguine that the Government while dealing with the matter would have regard to the same and pass appropriate orders in consideration thereof. A speaking order, if vigilance clearance is to be declined to the applicant, shall be passed. It goes without saying that if the order may turn against the applicant, it would be always open for him to challenge the same by way of separate proceedings. We are not informed as to when the date of the interview is fixed. It is stated that it may come up any time. If, therefore, the Government may not be able to adhere to the time schedule as mentioned above in dealing with and deciding the matter, the applicant would be considered for his appointment on the post of Joint Director, irrespective of the Government not passing the order as regards vigilance clearance to the applicant, but the same shall be subject to such a decision to be taken by the Government. In compliance of the directions of the Tribunal, the second Respondent has passed a speaking order refusing to grant vigilance clearance, which has been reproduced in toto below:
Subject: Issue of vigilance clearance to Dr. J.Pati, Deputy Director, CARA.
Reference (i) Order of Honble CAT- Application No. 2290/2010 dated 19th August, 2010, issued on 20th August, 2010.
(ii) Letter No. 18-12/2010-CWII of Ministry of Women & Child Development, Government of India, dated 25th August, 2010.
1. Dr.J. Pati, Deputy Director, CARA has approached Honble CAT with a plea that he is aspirant for the post of Joint Director, CARA fo which he is eligible, but he is being denied consieration for the said post for the sole reason that the respondents are not issuing vigilance clearance in his case.
2. The Honble CAT vide orders dated 19th August, 2010 has ordered that, in view of totality of the facts and circumstances of this case, we direct the resondents to deal with the case of the applicant as regards vigilance clearance expeditiously and definitely within a period of seven days. A speaking order, if vigilance clearance is to be declined to the applicant, shall be passed
3. In comliance with orders of the Honble CAT, the matter has been examined by CARA in consultation with Ministry of Women & Child Development, Government of India.
4. The Ministry, vide letter dated 25-8-2010 has observed as under:
In reference to the Honble CATs order dt. 20.8.2010, the issue of vigilance clearance for Dr. Jagannath Pati has been examined in consultation with CVO of the Ministry.
Dr. J.Pati, Deputy Director,CARA has been issued a charge sheet by the Ministry on the following grounds:
Dr. J.Pati, Deputy Director while functioning as Deputy Director, Central Adoption Resource Authority (CARA) during the period January, 2007 to December, 2007 in the matter of awarding of advertising contact to M/s Rashtriya Advertising, New Delhi has committed serious irregularities as under:
Dr. J. Pati submitted a proposal for release of advertisements through private agency instead of going through DAVP. Thus, he violated the policy of the Government in vogue for release of advertisement at that time through DAVP. He did not follow GFR and other prescribed codal formalities in selection of the agency and thus the advertisement was awarded to M/s Rashtriya Advertising Agency, New Delhi. By these actions he caused a loss to the Government/CARA to the tune of Rs.7.04 lakhs.
Dr. Jagannath Pati, Deputy Director-CARA by his above acts has exhibited lack of absolute integrity and devotion to duty and has acted in a manner unbecoming of a Government servant. He has thus contravened Rule 3(1) of CCS (Conduct) Rules, 1964.
CVO of the Ministry has given his opinion that as a charge sheet with the above mentioned charges has already been served to Dr. J.Pati, therefore, in view of Para 2 clause c of DOPT OM dated 14.12.2007 that Vigilance Clearance shall not be withheld unless..ii) a chargesheet has been issued against the officer in a disciplinary proceeding and the proceeding is pending, it would not be advisable to give vigilance clearance to him at this stage.
5. Vide the same reference, Ministry of Women & Child Development has further instructed Secretary, CARA to take appropriate action accordingly to comply with the orders of the Honble CAT.
6. The Honble CAT has ordered that while making a decision in this regard, the matter will be dealt with as per instant instructions, be it the one issued by CVC vide office order dated 13.4.2004 as modified vide order dated 21.12.2005 or that issued by DOP&T vide OM dated 14.12.2007. According to para 2 (c) of DOPT OM dated 14.12.2007 Vigilance clearance shall not be withheld unless(ii) a chargesheet has been issued against the officer in a disciplinary proceeding and proceeding is pending.
7. In the instant case, the Government have informed CARA that they propose to hold an enquiry of Dr. J.Pati, Deputy Director, CARA for lack of absolute integrity and for contravening rule 3 (1) of CCS Conduct Rules, 1964, besides other charges listed in the charge sheet issued to him on 12-8-2010. Since DOPT OM dt. 14-12-2007 read with CVC OM dt. 13-4-2004 (read with modification order No. 74/12/05) clearly prohibit issuing of vigilance clearance to such an officer whose integrity is doubtful and who has violated the Conduct Rules and chargesheet has already been served on him, the disciplinary authority has decided not to issue vigilance clearance to Dr. J. Pati, Deputy Director, CARA. The Applicant is now seeking the setting aside of the Memorandum of Charge and thereafter grant of vigilance clearance.
3. The learned counsel for the Applicant contended that the Memorandum of Charge is not maintainable because the aforesaid Memorandum has been issued by an incompetent authority. The argument is that the Memorandum should have been issued by the Secretary of CARA, whereas it has been issued by the Under Secretary Ministry of Women and Child Development (hereafter the Ministry), the first Respondent herein. Advertence has been made to clause 6 (f) of the General Bye-Laws of the second Respondent which, inter alia, provide thus:
6(f) Selection & Appointment to all Class I posts will remain with the Ministry of Social Justice & Empowerment. Secretary CARA will exercise the same powers for all other cartegories of posts as per rules and approval of the Management Committee, except for the power to create new posts. Secretary shall exercise all other administrative/financial powers as the Head of Department in respect of staff in Group A, B, C & D including all aspects of discipline, of all categories of posts as per rules and order which may be issued by the Government from time to time. It was argued that when all aspects of discipline have to be looked after by the Secretary CARA, the Under Secretary of the Ministry would not be competent to issue the charge sheet. It was further contended that the charge sheet has been issued under the CCS (CCA) Rules, 1965 whereas these should have been issued under the bye-laws of the CARA. The argument is that the Applicant is governed by the Service bye laws of the second Respondent and not by the CCS (CCA) Rules, 1965 being an employee of the autonomous body. It was further argued that no misconduct was made out against the Applicant because the proposal mooted by him was approved by the Managing Committee of the CARA. It was also urged that the Memorandum of Charge was issued after a considerable delay of nearly three years and the Respondents have failed to explain the reasons for delay.
4. We do not find much force in the arguments of the learned counsel for the Applicant. It is not in dispute that the Applicant is a Group A officer of the CARA. Clause 19 of the General Bye-Laws provides that the Ministry would be the appointing authority for all officers of Group 'A'. The aforesaid clause has been extracted below:
19. Appointment to a post in any grade by promotion shall be made from amongst employees serving in posts in th next lower grade by selection on the basis of merit and qualifications with dur regard to seniority. Appointments to Group A post shall be made by the Ministry on the recommendation of Management Committee. If a suitable officer is not available for promotion to a post, appointment to that post shall be made by either of the three methods of recruitment as mentioned in bye-law 18. (emphasis added) The Memorandum of Charge states at the outset that the Ministry proposes to hold an enquiry against the Applicant. Being the appointing authority, it will be well within the Ministry's powers to issue the Memorandum of Charge and initiate disciplinary proceedings. The Under Secretary has rightly signed for and on behalf of the Ministry. Since the Ministry is the appointing authority, the Memorandum of Charge could not have been issued by an authority subordinate to it. The major penalty of removal, compulsory retirement or reduction in rank cannot be inflicted by any authority subordinate to the appointing authority under Article 311 of the Constitution of India. Since the Memorandum of Charge has been issued under Rule 14 of the CCS (CCA) Rules, 1965, and major penalty of removal, compulsory retirement or reduction in rank can theoretically be imposed on him, the charge sheet could have been issued only by the Ministry, the appointing authority. It is also not correct to say that the CCS (CCA) Rules, 1965 do not apply to the Applicant. Clause 32 of the General Bye-Laws provides that the aforesaid rules would apply mutatis mutandis to the employees of the CARA. The Clause 32 has been quoted below:
32. In matter of discipline the Central Civil Service (Conduct) Rules, 1964 and in matters of appeal the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as amended from time to time and aplicable to the Central Government employees shall apply mutates mutandis to the employees of the Agency. The advertisement was issued in July 2007. The sanction for payment was obtained on 15.07.2008, as seen from the copy of the note sheet placed at page 125. The Memorandum of Charge has been issued on 11.08.2010, after about two years of the incident. Although it was contended by the Applicant that the Minister in-charge of the Ministry had directed on 7.07.2008 that an enquiry in the matter should be made and completed within two weeks, as has been stated in the paragraph 5(VII) of the OA, but no documents to support the above contention have been placed on record. Moreover, the Applicant has also not shown how he has been prejudiced by this delay. Interference by the Tribunal with the Memorandum of Charge on grounds of delay would depend on the facts and circumstances of each case. Normally the Tribunal should not interfere with the Memorandum of Charge, as held by the Honourable Supreme Court in Union of India Vs. Kunnisetty Satyanarayana, 2006 (12) SCC 28. The Applicant had to show how he was prejudiced by this delay, about which there is not a whisper in the pleadings. Moreover, he can plead prejudice before the enquiry authority also, as held in Government of A.P. Vs. V. Appala Swamy, (2007) 14 SCC 49 by the Honourable Supreme Court. We are also not persuaded that no misconduct has been made out in the Memorandum of Charge. The Applicant has been charged with the lack of absolute integrity and devotion to duty. It has also been alleged that by not following the financial rules and codal formalities, he has caused loss of rupees 7.04 lakhs. Considering all these aspects, we cannot interfere with the Memorandum of Charge. We cannot also go into the merits of the case at this stage.
5. The second relief sought by the Applicant has already been quoted above. The Applicant is seeking issuance of the vigilance clearance on the quashing of the charge sheet dated 11.08.2010. We cannot give any relief because we are of the view that we should not interfere with the charge sheet at this stage.
6. The Applicant has not challenged the order dated 26.08.2010, rejecting his request for grant of vigilance clearance although the said order has been placed on record.
7. On the basis of the above consideration we find no merit in the OA, which is dismissed in limine.
(L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman /dkm/