Central Administrative Tribunal - Delhi
P K Mittal Son Of Shri P R Mittal vs Union Of India Through on 1 October, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1975/2009 This the 1st day of October 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) P K Mittal son of Shri P R Mittal Age 45 years, presently working as Assistant Engineer CC Division No.III, Central Public Works Department, Kendirya Sadan, Sector 9, Chandigarh ..Applicant (By Advocate: Shri S K Gupta) Versus 1. Union of India through Secretary, Ministry of Urban Development and Poverty Alleviation Nirman Bhawan, New Delhi 2. The Director General, Central Public Works Department, Nirman Bhawan New Delhi ..Respondents (By Advocate: Shri Ashish Nischal) O R D E R
Shri Shanker Raju:
An Assistant Engineer in Central Public Works Department (CPWD), by virtue of this OA, has assailed respondents orders dated 29.11.2004 and 18.5.2007 whereby pursuant upon the disciplinary proceedings for a major penalty under Rule 14 of CCS (CCA) Rules, 1965 (for short Rules) a penalty of reduction by two stages in the time scale of pay for a period of three years with immediate effect has been imposed upon him with a stipulation that he will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing of his future increments. This has been upheld by the appellate authority on the advice of Central Vigilance Commission (CVC).
2. The allegations, numbering six, have been leveled against the applicant, which are; awarding of 27 contracts in short span of time unauthorizedly splitting the contract to have financial competency of Assistant Engineer, the period of publicity was reduced, award of 1127 works without preparation of their market rate justifications, deposition of amount in violation of CPWA Code; and tampering of petty sanction.
3. The CVC was consulted at first stage but the copy of the advice was not served. In the inquiry, articles I, II and IV were proved by the inquiry officer and remaining articles V and VI were not proved. On the basis of inquiry report, the disciplinary authority issued a memorandum to the applicant disagreeing with the articles II, IV and VI by holding that the charges are fully proved and thereafter the second stage advice of CVC was supplied to the applicant and on that basis penalty was imposed, which when assailed in appeal and upheld leads to the present OA.
4. At the outset, learned counsel for applicant has taken plethora of legal submissions and contended that (i) the first stage advice of CVC was not served, (ii) advice of CVC at second stage was sought without forwarding the representation against the disagreement note by the applicant, which has prejudiced him, (iii) the disagreement is the pre-determination and a final view of the matter, (iv) the inquiry is vitiated by non-compliance of Rule 14 (18) of the Rules; and (v) the punishment is faulty not as per the Rule 11 of the Rules.
5. Learned counsel has referred to the Gazette issued by the Ministry of Law, Justice and Company Affairs promulgated on 8.1.1999 whereby the constitution of CVC has been set, which covers the Government Departments both in State and Central and has relied upon the Central Vigilance Commission Act, 2003 promulgated on 11.9.2003 to contend that first and second stages advice has been served upon the applicant and as first stage advice has not been given, he relies upon the decision of the High Court of Delhi in Indian Council for Agricultural Research & others v. Vipul Raj (W.P. (C) No.13106/2009) decided on 13.9.2010 wherein this issue was upheld with slight modification. Further the CVCs OM of 28.9.2000 has been relied upon to substantiate his plea.
6. Regarding faulty penalty, it is contended that once the reduction has been imposed with increments to be released, effecting future increments is not in consonance with Rule 11 of the Rules.
7. Learned counsel states that as per law laid down by the Apex Court in Ranjit Singh v. Union of India & others (2006) 4 SCC 153, it is the prerogative of the disciplinary authority to disagree but the conclusion should be tentative and after according an opportunity to show cause, a final view of the matter on penalty is to be taken.
8. By referring to the memorandum issued in June 2004 to the applicant, it is stated that the disciplinary authority while disagreeing took the final view of the matter whereby the charges have been fully proved, which is not a tentative conclusion but a pre-determination of the issue. As such, an opportunity afforded to the applicant is a mere empty formality, which deprives him a reasonable opportunity to show cause, prejudicing his valuable right of defence, as per the decision of Apex Court in Yoginath D. Bagde v. State of Maharashtra & another, (1999) 7 SCC 739.
9. Lastly, it is contended that though the applicant has been examined in purported compliance of Rule 14 (18) of the Rules by the inquiry officer on 9.1.2004, yet the obligatory part of not putting the circumstances and evidence brought on record against the applicant for confrontation during the course of disciplinary proceedings, the procedure adopted is not legal.
10. Learned counsel relies upon the decisions of Apex Court in Moni Shankar v. Union of India & another, (2008) 1 SCC (L&S) 819 and Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227. Also relies upon the decision of the Apex Court in SLP (Civil) No.9816/2002 decided on 9.5.2002.
11. On the other hand, learned counsel for respondents vehemently opposed the contentions. Insofar as the advice of CVC is concerned, CVC instructions vide circular dated 28.9.2000 have been relied upon to contend that first stage advice, though not given, one does not get an opportunity to represent against the proposal for initiation of departmental proceedings and having not caused any prejudice, the ground taken by the applicant is misconceived.
12. With regard to second stage advice of CVC, it is stated that as per CVC circular, a copy of inquiry report, second stage advice along with disagreement note of CVC was served upon the applicant, which is compliance of circular. Regarding penalty, it is stated that though it is faulty but can be corrected suo motu on review by the President.
13. As regards disagreement, the point, which has come in additional report to which the reply has been filed, it is stated that the applicant has expressed his position during inquiry proceeding and he had further opportunity to represent against disagreement note. As such, no illegality has been committed by the respondents.
14. As regards violation of Rule 14 (18) of the Rules, it is stated that the applicant was examined by the inquiry officer after the closure of his case.
15. We have carefully considered the rival contentions of the parties and perused the records.
16. Rule 14 (18) of the Rules stipulates that after the CO closed his case, it is obligatory by the inquiry officer to generally question him on the circumstances appearing against him in the evidence for the purposes of enabling him to explain any circumstances appearing in the evidence against him. Though the applicant has been charged on six counts of article of charges, yet we find from the general examination of the applicant that circumstances appeared against him and incriminating evidence having not been put to him for his explanation and confrontation, there is a clear violation by the inquiry officer of Rule 14 (18) of the Rules. The aforesaid issue, which has been settled by the Apex Court (supra), has been relied upon by the High Court in Union of India & others v. S.C. Dubey (WP (C) No.13832/2009) decided on 13.7.2010. On this count, the penalty inquiry as well as the consequent orders are vitiated.
17. As regards disagreement, on perusal of the note, a final view has been taken on pre-determination by the disciplinary authority, for which the opportunity to represent is merely a formality, which amounts to post-decisional hearing, as no tentative conclusion has been arrived at. This procedure is certainly in contravention of Rule 14 (18) of the Rules and decision of the Apex Court in Yoginath D. Bagde (supra).
18. As regards the faulty punishment, no doubt, when the reduction is made and increments are to be earned, there is no question of future increments to be effected, as the penalty imposed is not cumulative but the later part has made it cumulative, which is faulty and not in consonance with Rule 11 of the Rules.
19. In the above view of the matter, after carefully considering the rival contentions of the parties, we are of the considered view that the impugned orders cannot be sustained in law, as contrary to the procedure causing prejudice to the applicant.
20. Resultantly, OA is allowed to the extent of quashing the impugned orders. Applicant is entitled to all consequences in accordance with rules, instructions and law on the subject. However, this shall not preclude the respondents, if so advised, to resume the disciplinary proceedings from the stage of Rule 14 (18) of the Rules. In such an event, law shall take its own course. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/