Central Administrative Tribunal - Delhi
Ms. Pallavi Tandon vs Union Of India on 8 January, 2015
Central Administrative Tribunal Principal Bench OA No.1735/2013 Order reserved on: 10.12.2014 Order pronounced on:08.1.2015 Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Ms. Pallavi Tandon, ITS Aged 45 years (DOB being 18.03.1968) Daughter of Shri Shiv Gopal Tandon Presently serving as Director Telecom, TEC Department of Telecommunications Ministry of Communication, Information & Technology Government of India, 2nd Floor, K.L. Bhawan Janpath, New Delhi 110001. (Address for communication: C/o Mrs. Urmila Kapoor, B-3, 35-B, Lawrence Road Keshavpuram Metro, Delhi 110035. Applicant (By Advocate :Shri Tarun Verma with Shri M S Rao) Versus 1. Union of India, (To be represented through its Secretary to the Government of India Ministry of Communications & Information Technology Department of Telecommunications Government of India, Room No.1009 Sanchar Bhavan, 20 Ashoka Road New Delhi 110001). 2. Central Vigilance Commission (To be represented through its Director) Satarkta Bhavan, GPO Complex Block-A, I.N.A., New Delhi 110023. 3. Union Public Service Commission (to be represented through its Secretary) UPSC, Dholpur House, Shahjahan Road New Delhi 110069. 4. Bharat Sanchar Nigam Limited (Notice to be served through its Chairman-cum-M.D. BSNL, Bharat Sanchar Bhavan H.C. Mathur Lane, Janpath New Delhi-110001. 5. Chief Vigilance Officer Department of Telecommunications Government of India, 9th Floor Sanchar Bhavan, 20 Ashoka Road New Delhi 110001. Respondents (By advocate : Shri H K Gangwani for Respondent Nos. 1,2,3 & 5 and Shri V P Sharma for Respondent No.4) ORDER G. George Paracken, Member (J) :
The applicant is aggrieved by the impugned Office Memorandum No.007/PTT/066-3256 dated 06.02.2008 issued by the Chief Vigilance Commission (CVC for short) advising the Respondent-Department of Telecommunication to initiate minor penalty proceedings against her with a view to impose a penalty other than Censure for the alleged lapses as brought out in the draft charge Memorandum dated 10.12.2009 proposing to take action under Rule 16 of the CCS (CCA) Rules, 1965 along with statement of imputation of misconduct or misbehaviour and the order dated 03.09.2012 passed in the disciplinary proceedings imposing upon her the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years without cumulative effect and not adversely affecting her pension.
2. The brief facts of the case: A pseudonymous complaint in the name of one Shri N.K. Verma, near Railway Line, Gudhiyari, Raipur against the Applicant was received in the office of DGM (AHR), CPIO, BSNL Raipur in the year 2005. It was forwarded to the DGM (MIS) and CPIO, BSNL, New Delhi on 04.02.2005 which in turn referred it to CVC on 07.01.2008. The CVC, vide the impugned Office Memorandum dated 06.02.2008 perused the proposal of the BSNL and made the following observations:-
Allegation (1):- The irregularity was committed in E-10B Exchange of Durg during the period May-1997 to Feb-1998 relating to 17 spare numbers. Ms. Pallavi Tandon was the DE incharge of the E-10B Exchange from 11.4.97 to 17.8.98. From the records of the department it is clear that only two spare nos. were referred for investigation by the CBI which were detected at her instance. It appears that Ms. Pallavi Tandon did not take initiative to get the remaining 17 spare numbers of E-10B Exchange of Durg detected so that action could have been taken against the other offenders. Therefore, gross negligence on her part is very much apparent.
Allegation (2):- The Deptt. is of the view that Ms. Pallavi Tandon, the then DE may be warned for activating the ISD facility on her service phone without authorization and not for misusing it. But from the records of the department it is clear that ISD facility with FDI command was unauthorisedly activated frequently on residential telephone (No.3540000) during the period 27.11.1997 to 03.12.1997. Therefore, misuse of facility is also apparent.
In the light of the aforesaid observations, C.V.C. advised the BSNL to initiate-minor penalty proceedings against the Applicant with a view to impose a penalty other than Censure upon her and other officers who were alleged to have been involved in the matter.
3. Based on the above advice, the applicant was served with Memorandum No.8/60/2009-Vig.II dated 10.12.2009 proposing to take action against her under Rule 16 of CCS (CCA) Rules, 1965. The statement of imputation of misconduct or misbehavior on which the proposed action was taken is as under:-
That the said Ms. Pallavi Tandon was working as DE (E10B), Durg during the period April, 1997 to August, 1998.
2. During the period 1997-1998, spare telephone numbers were created from E-10B Exchange, Durg with ISD/STD facility and extended to private parties. ISD/STD calls were made from these spare numbers. In total 20 unauthorized spare number were created and ISD/STD calls worth huge units were made from these spare numbers. The following are details of spare numbers which were created during her tenure:-
S. Nos.
Telephone Nos.
Period of working Total units consumed by working of spare numbers
1.
327704 327705 09.05.1997 to 10.05.1997 6,858
2. 327712 327713 327705 23.05.1997 to 12.06.1998 3,30,590 2,93,720 1,67,369
3. 329102 329103 08.07.1997 to 11.07.1997 79,450 91,398
4. 327258 327256 09.07.1997 to 21.07.1997 09.07.1997 to 21.07.1997 2,16,504 91,398
5. 327706 23.12.1997 to 26.12.1997 42,588
6. 329908 329909 25.01.1998 to 14.02.1998 25.01.1998 to 15.02.1998 6,20,225 3,76,997
7. 327705 321102 07.02.1998 to 09.02.1998 07.02.1998 to 09.02.1998 35,522 51,322
8. 310902 310901 18.02.1998 to 27.02.1998 18.02.1998 to 27.02.1998 2,28,428 2,46,548
9. 321891 06.02.1998 to 09.02.1998 63,788
10. 327704 24.11.1997 to 26.12.1997 63,596
11. 329132 17.07.1997 to 21.07.1997 1,50,154
12. 329103 04.09.1997 to 05.09.1997 46
3. The said Ms. Pallavi Tandon failed to supervise the activities of her subordinates. Had she supervised their activities, the loss caused to BSNL, through huge ISD and STD calls by creation of spare numbers would have been averted.
4. The said Ms. Pallavi Tandon was having the password for subscriber management of E10B Exchange, Durg. During the leave period of her subordinate, the then SDE, E10B, Durg Exchange, Shri S.C. Gaurkar; spare numbers 327713, 327712 and 327705 were created and resulted in loss of Rs.9,50,016/-(791680 x Rs.1.20) to BSNL on account of 791680 units from these three unauthorized spare numbers.
5. The said Ms. Pallavi Tandon was allotted free service telephone connection No.354000 at her residence. She frequently used commands to provide ISD facility with FDI and then disconnecting the above facility from Telephone No. 354000 on 17.11.1997, 28.11.1997, 30.11.1997, 01.12.1997 and 02.12.1997, without approval of higher authorities.
6. The said Ms. Pallavi Tandon while working as DGM (A&P), O/o GMTD, Durg, allotted one mobile number 9425234999 having international roaming facility in her name without fulfilling department formalities and later get it disconnected. There is an outstanding due of Rs.898/- against this mobile number.
7. Thus, during her tenure her subordinates used spare numbers for creating ISD connections and diverted them to STD/ISD PCO and caused loss of Rs.62 lakhs to BSNL for the period from May, 1997 to February, 1998 in respect of 17 spare numbers. She also got provided ISD facility on her service telephone connection whereas ISD facility on service connection for which she was not eligible.
8. Thus, by her above acts, the said Ms. Pallavi Tandon committed misconduct, exhibited lack of absolute integrity, devotion of duty, and acted in a manner unbecoming of a Government Servant, thereby contravening Rule 3(1) (i), (ii) and (iii) and Rule 3(2) (i) of the CCS (Conduct) Rules, 1964.
4. As she came to know from the Vigilance Cell, C.G. Circle that the complaint against her was sent to Vigilance Section of the Department of Telecommunication, she made a representation to the ADG, Vigilance of the Department of Telecom on 09.02.2006 itself stating that the following allegations were going to be leveled against her:
(1) The ISD scam took place due to lack of supervision on her part.
(2) She was responsible for creation of spare numbers during the period 16.05.1997 to 25.5.1997, when Shri S C Gaurkar regular SDE (Subscriber management) was on leave, on the plea that during the absence of SDE Subscriber management, she as DE E 10B was carrying out this job.
(3) She had provided ISD facility with FD1 category on her residence number 354000.
(4) Money was to be recovered for international roaming GSM mobile connection subscribed by her in the month of May 2004 and recorded warning to be given to her for not completing the formalities.
While giving explanation to those allegations and denying them, she requested the ADG (Vigilance) to grant her justice against the administrative atrocities of BSNL officers inflicted on her as a lady officer. Later, when she came to know to the proposal of the BSNL, Chattisgarh Telecom Circle to initiate proceedings against her and the aforesaid Memorandum dated 06.02.2008, she made another representation to the Honble Minister of State for Communication and Information Technology on 27.02.2008 in which she has stated that in the ISD Scam case involving Rs.8 lakhs, she herself had caught two officers red handed in March, 1998 and the false and anonymous complaint was made against her in retaliation for it but without any evidence in the matter. She has also submitted that such an action on the part of BSNL, Chattisgarh was in violation of the existing instructions contained in the Vigilance Manual according to which, no action is called for on anonymous complaint where the facts are not verifiable. Further, the CBI itself had investigated the aforesaid scam during her period of her working as DE E10B Durg and it did not find any act of omission or commission on her part. Accordingly, the department closed the case against her in April, 2001 itself with the approval of CVC and the two culprit officers were charge sheeted. Further, she has cited the Vigilance Manual which lays down that the explanation of the officer concerned shall be obtained before initiating any disciplinary proceedings but surprisingly, in her case, charges were framed against her without even calling her explanation. She has, therefore, requested the investigating officers of BSNL, Chhatisgarh Telecom Circle to take information about facts and evidences from her but no opportunity was given to her to provide any evidence. Again, the Chhatisgarh Telecom Circle has wrongly fixed the responsibility on her for the works which were the responsibility of the officers of entirely different section.
5. As regards the allegation No.1 was concerned, she stated that she never provided any ISD facility on her residence telephone number and the said allegation was the outcome of wrong interpretation of the computer command used in the Telephone Exchange for providing facilities on the telephone numbers. In the year 1998 also, the same allegation was made against her, but after investigation, it was found to be wrong and the case was closed. But this time, without linking the earlier investigation report available in BSNL, Chhattisgarh Telecom Circle and without finding the facts from the telephone exchange, disciplinary authority proposed to initiate disciplinary proceedings against her based on a false and anonymous complaint. 6. As regards, the allegation No.2 is concerned, she stated that she had found only two unauthorized telephone numbers in the ISD scam and she never found any other unauthorized telephone number during her entire tenure as DE (E10B) Durg. After she was held responsible in the ISD scam and the CBI investigated the case and they also did not found any unauthorized telephone numbers. Moreover, it was the responsibility of the Accounts Officer (Telephone Revenue Accounts) to identify unauthorized telephone numbers from detail bill print outs. If a telephone number is unauthorizedly opened in a telephone exchange then it will not have name and address record in the computer data base of TRA but its detail bill will get printed during the printing process. If the 17 unauthorised telephone numbers ever existed, then the detail bill print out of those numbers must have been available in the TRI Section but not a single number out of those 17 numbers mentioned in the anonymous complaint was ever reported by the Accounts Officer (TRA) nor it was found during the CBI investigation. Therefore, the detail bill data mentioned in the anonymous complaint was fabricated and now it was not possible to verify the authenticity of those detail bill data provided in the said complaint because 10 years detail bill data is not available in the Telephone Exchange, Durg.
7. She has also made representation dated 14.03.2008 to the Senior DDG (Vigilance), Department of Telecommunications stating that the proposal to initiate disciplinary proceedings against her was unjustified for the aforesaid reasons and requested to send her case to CVC to drop the said proposal.
8. Thereafter, the respondents, vide their letter dated 18.03.2008, asked her to provide documentary evidence in support of her statements made in the representations. In response to the aforesaid letter, she made a very detailed reply dated 25.05.2008 submitting the facts and evidences in support of her case. She has also enclosed 34 documents in support of her submissions. She has further stated that the Vigilance Officer, Chhatisgarh Circle, did not follow the procedure laid down in the CVC instructions for handling the pseudonymous complaints whereas she had performed effective supervisory control which lead to the detection of the ISD fraud on two authorized telephone numbers. However, by the administrative action of the TDM Durg, the protection against fraud was removed and as a result the safeguards provided by the supervisory actions were also nullified and one SDE had got complete freedom in the entire domain of subscriber management. With the necessary supporting documents, she had submitted that it was proved beyond doubt that charges made against her were incorrect.
9. However, the respondents have decided to proceed with the inquiry against the applicant under Rule 16 of the CCS (CCA) Rules, 1965 vide impugned Memorandum dated 10.12.2009. She has, therefore, once again submitted to the Disciplinary Authority that the charge memo was issued to her for the alleged incidence which took place in the year 1997 occurred 10 years before. As the case was very old, she requested for grant of time to recall and search certain documents supporting her reply. She has also requested the respondents to provide her the information/documents material records and evidence required to submit the representation. However, the respondents, vide their memorandum dated 15.02.2010, informed her that the allegations made against her in the aforesaid memo dated 10.12.2009 were explicit and she had to submit her reply to them with supporting documents, if any. Therefore, further clarification on the allegations was not required as they were issued after the approval of the competent authority. As regards the documents mentioned in her representation dated 11.01.2010, she was informed that it was essential on the part of the charged official to provide the letter number, file number and their date etc. while seeking copies thereof and once that is intimated, the competent authority would take a view whether such documents are essential for defence and whether those can be provided to her. They have also informed her that some other documents sought by her are either confidential in nature or appears to be non existent and, therefore, it is not possible to provide those copies to her. However, the applicant requested the respondents, vide her letter dated 12.03.2010 to provide her the prosecution evidence and other information, documents, records etc. as requested by her in her letter dated 11.01.2010 as she was justified in her perception for seeking them as evidence for defending the case.
10. The applicant again made a representation on 12.03.2010 to the Minister, M/o Communication through Under Secretary appealing him to intervene in the matter and to quash the charge sheet so that her image be restored for future and also to ensure that no penalty is imposed upon her as she could not submit her defence statement due to non provisioning of evidences by the Vigilance Wing. Thereafter, the respondents issued their letter dated 02.07.2010 informing her that out of 45 documents demanded by her, 21 were not available and copies of some of the documents have already been given to her. Vide her letter dated 23.07.2010, she again requested the Respondent to provide her the requisite documents to enable her to know the facts so as to prove her innocence vis-a-vis the charges made against her. But the respondents again, vide their memorandum dated 14.02.2011, informed her that in case she fails to submit her representation within the next seven days, it will be presumed that she has no representation to make and further necessary action will be taken ex parte. As the Respondents did not furnish her the requisite information/documents, she informed the Respondent vide her letter dated 21.04.2011 that the charges against her are invalid for the following reasons:-
(i) The offence of creation of misuse of 20 spare numbers in E10B exchange Durg is hypothetical because it is based on detail bill data provided by outside party a vendor and is fake data as it is not supported by departmental evidence and by the reports of earlier investigations carried out by TDM Durg and CBI. Thus the charges made in para 3, para 4, para 7 and para 8 of Statements of Imputations of Misconduct are invalid being based on the hypothetical offense.
(ii) The charge of failure to supervise the activities of her subordinates is invalid because it has been framed against the departmental rule as the task of supervising the activities of subordinates does not come within the scope of supervisory responsibilities of DE (E10B).
(iii) The charge of having password of E10B exchange and alleged creation and misuse of three spare numbers during the leave period of Shri Gaurkar, SDE is not related with her as it corresponds to the period when she was on leave and has been framed against the departmental rules.
(iv) The charge of providing ISD facility by her on he residential telephone number 354000 is invalid because Vigilance Wing itself does not know whether the said charge was correct or not and also because this charge was earlier dropped by GMTD Durg on 17.07.2000.
(v) The charge of her allotting one mobile number 94252-34999 having international roaming facility is invalid because this charge was earlier dropped by Honourable MOC on 20.06.2007.
(vi) Other charges are invalid being based on above charges which are invalid.
11. As no action was taken in the matter, she again, vide her letters dated 04.08.2011 and 21.07.2012, requested the Minister of State for Communication to drop the disciplinary proceedings against her. Again since no favourable action was taken by the Respondents, she made a representation dated 09.08.2012 to the CVC itself to quash their advice dated 06.02.2008 to initiate minor penalty proceedings against her as the same is based on wrong allegations and wrong action on the part of the CG Vigilance who initiated false vigilance case against her on the basis of pseudonymous complaint in gross violation of the CVC instructions itself as also to take necessary action to close the disciplinary proceedings against her as it was based on imaginary findings and imaginary charges. However, disciplinary authority proceeded with the matter and referred the case to the Union Public Service Commission (UPSC for short) for its advice and the Commission, vide its advice dated 08.06.2012, advised the disciplinary authority that, taking into account all aspects of the case, the ends of justice would be met in the case if the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years without cumulative effect and not adversely affecting her pension is imposed on the applicant. The Applicant again, vide her letter dated 10.08.2012 to the CVO, Department of Telecom submitted as under:-
(1) The two allegations on the basis of which the CVC advised minor penalty proceedings against her are wrong.
(2) There is inconsistency between the allegations in CVC advice and the charges made in the charge memo issued by DoT Vigilance.
(3) The Disciplinary case has been framed on the basis of pseudonymous complaint in gross violation of the orders of CVC.
(4) The charges in the charge memo are false, imaginary and invalid.
She has also made a similar representation to the Secretary, Department of Telecommunication on 12.08.2012 and requested him to quash the charge. 12. However, when the Applicant came to know that the Respondents were going ahead with the disciplinary proceedings and the UPSC has already submitted its advice in the matter, she vide her letter dated 13.08.2012 requested the Secretary, Deptt. of Telecommunication to furnish her copy of the said advice before any final order was passed by the disciplinary authority. The relevant part of the said letter reads as under:-
It would be relevant to note here that in my case with regard to an alleged misconduct pertaining to the year 1997-98, the aforesaid minor penalty departmental proceedings initiated against me in 2009 has been pending undecided for no fault of mine with the result that my career has been at stake. Please note that now if the disciplinary authority issues an order of penalty without furnishing to me an advance copy of the UPSC advice then I will have to approach the court of law of competent jurisdiction against the disciplinary authority as also the UPSC, which in all probability may remand he matter back to the disciplinary authority for curing the aforesaid procedural defect. Thus, there will again be a long spell of delay in the finalization of the case. Therefore, in order of avoid the aforesaid further prolongation, I am making this representation in my interest. Please note that inspite of this formal representation in writing requesting for the furnishing of an advance copy of the UPSC advice, if the disciplinary authority issues the final order without furnishing to me an advance copy of UPSC advance, then it will only reinforce my feeling that it was only with a malicious motive and in malicious exercise of power the aforesaid minor penalty departmental proceedings came to be initiated to ensure that I remain an officer under cloud for a very long time to come so as to ruin my career progression.
13. However, without accepting her request, the President imposed the penalty as advised by the UPSC vide order dated 03.09.2012. The relevant part of the said order reads as under:-
And whereas, Ms. Pallavi Tandon denied the charges submitted her written statement of defence dated 21/04/2011 and subsequent representation dated 21/07/2012.
And whereas, the President, carefully considered the records of the case and all other facts and circumstances relevant to the case and came to the tentative conclusion that the charged officer deserves a suitable minor penalty as specified under Rule 11 of the CCS (CCA) Rules, 1965 and sought the statutory advice of the UPSC as to the quantum of punishment that may be imposed on Ms. Pallavi Tandon.
And whereas, after taking into account all other aspects to the case, the Commission advised that the ends of the justice would be met in the case if the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years, without cumulative effect and not adversely affecting her pension is imposed on the C.O., Ms. Pallavi Tandon.
And whereas, the President, i.e., the Disciplinary Authority, carefully considered the reply and the representation of C.O. and has found that the contention of the C.O., that the case has been framed on the basis of pseudonymous complaint and as such no action should have been taken as per CVCs Memorandum dated 29.06.1999, as not tenable on the grounds that the charges are based on the documentary evidence and the facts of the case alongwith the relevant documents were forwarded to the CVC for their first stage advice. CVC after examining the same had recommended initiation of minor penalty proceedings against the C.O. The contention of the C.O., that the call detail records of 17 numbers, allegation of misuse of 17 telephone numbers and misuse of 20 spared telephone numbers of E10B is hypothetical and based on extraneous data, has also not been found tenable on the ground that the telephone numbers mentioned in the chargesheet are not hypothetical. Creation of new numbers and their misuse is matter of record and the charge is based on the documentary evidence. The contention of the C.O., that supervision the activities of subordinates does not come within jurisdiction of the responsibilities of DE (E10B), has also not been found tenable as the Divisional Engineer is the ultimate supervisor of the exchange and cannot be absolved from the responsibility of the supervision over the subordinates. Further contention of the C.O., that she never had been provided with ISD facility on her telephone connection No.354000, is also not tenable on the grounds that it has been established as per the records of the exchange that ISD facility with FDI was provided on her said residential telephone number and she frequently used ISD facility. The contention of the C.O., that the charge mentioned in para 6 of the statement of imputation of misconduct annexed to Memo. of even number dated 10.12.2009 was earlier investigated and dropped has been found tenable.
Now, therefore, after careful consideration of the allegations leveled in the charge memo, the submissions made by Ms. Pallavi Tandon, the advice tendered by the UPSC and all other factors and circumstances relevant to this case, the President, being the competent Disciplinary Authority, hereby accepts the advice of the UPSC and orders imposition of the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years, without cumulative effect and not adversely affecting her pension on the C.O., Ms. Pallavi Tandon, Director, TEC, New Delhi.
14. Thereafter, the applicant has filed this OA to quash and set aside (i) Office Memorandum No.007/P&T/066-3256 dated 06.02.2008 issued by the Central Vigilance Commission, New Delhi, advising the respondents to initiate minor penalty proceedings against the applicant; (ii) Memorandum No.8/60/2009-Vig.II dated 10.12.2009 issued by the President through the Department of Telecom, Govt. of India, New Delhi to proceed against her under Rule 16 of the CCS (CCA) Rules, 1965; (iii) Advice of the UPSC bearing No. F.3/10/2012-SI, dated 08.06.2012; (iv) President order No.8/60/2009-Vig.II dated 03.09.2012 imposing the penalty upon the Applicant.
15. The Applicant has challenged the aforesaid orders on various grounds. First of all she has stated that the impugned charge sheet was issued to her on the basis of an anonymous/pseudonymous complaint in the name of Shri N.K. Verma and even though she has pointed out on a number of occasions to the Disciplinary Authority about the guidelines issued by the CVC that no action should be initiated on any anonymous/pseudonymous complaints, yet the said aspect has not been taken into account at all either while issuing the charge sheet or issuing the order of penalty. Secondly, she has stated that there was inordinate and unexplained delay in initiating the disciplinary proceedings against her. In this regard, she has pointed out that the alleged incidence had occurred during the period 1997-1998 and the Memorandum proposing to initiate action under Rule 16 of the CCS (CCA) Rules, 1965 was issued to her after a lapse of 11-12 years. Thirdly, she has stated that the Article of Charge was not provided to her along with the charge memo but only a statement of imputation of misconduct consisting of 7 paragraphs were provided. In the absence of the actual Article of Charge, it was given to understand by the authorities concerned that the charges consisted of 7 irregularities committed by her and the UPSC also treated it as 7 different charges and held that 5 of them have been proved. But the fact was that there were only 4 charges against her in the statement of imputation. Fourthly, she has submitted that the aforesaid decision to initiate proceedings against her was not the independent decision of the disciplinary authority but it was at the instance of the CVC who advised the respondents to initiate minor penalty proceedings against her. Fifthly, she has stated that the charges are not sustainable only two spare numbers were referred in the investigation by the CBI which was detected at the instance of the applicant but, according to the respondents, she did not take initiative to get the 17 remaining numbers of Telephone Exchange, Durg detected so that action could have been taken against the other offenders also. Further, the respondents have held that it was clear that ISD facility with FDI was being unauthorizedly and frequently used on her residential telephone No.354000 during the period from 27.11.1997 to 03.12.1997 but all the telephone numbers mentioned in the impugned statement of imputation of misconduct were allotted to genuine consumers and she has also given the details of those 27 numbers in a statement. Therefore, the allegations made against her were concocted but there was nothing wrong in the matter. She has also stated that CBI itself has inquired into the matter earlier and found nothing wrong in that. In the said enquiry by the CBI, she herself appeared on 29.10.1999 and gave evidence to them and thereafter the CBI had closed the case. She has also stated that the CVCs advice dated 06.02.2008 was wholly arbitrary and unreasonable. She has also stated that the alleged gross negligence does not amount to any misconduct as the ISD facility with FD1 parameter was never activated on the service telephone provided at her residence. The aforesaid fact was evident from the report of GMTD, Durg dated 17.7.2000 who had personally investigated the matter but the CVC arbitrarily concluded, without their being any evidence, that the ISD facility with FDI command was unauthorizedly activated frequently on the residential telephone. The CVC also arbitrarily concluded that there was misuse of facility, although in their advice itself it was clearly specified that the allegation of Respondent No.5 was that of only activating the ISD and not misusing it. Regarding the other allegation of not detecting the alleged 17 more misused numbers, the CVC has not advised any action against AO (TRA) who is responsible of detecting misuse of spare numbers as his normal duty. Just because the Applicant has earlier detected the two misused numbers, the CVC arbitrarily assumed that it was her responsibility to have detected alleged 17 numbers also. Further, she has submitted that the CVC has no power or authority to impose any punishment on the delinquent servant. But in the present case, the CVC has gone beyond its power in advising that the Applicant be inflicted with a minor penalty other than Censure.
16. Applicant has also stated that out of the total four charges stated in the Statement of Imputation, the three charges stated in paras 3, 4 and 6 did not have any mention in the CVC advice memo. Only one charge, i.e. regarding provisioning of ISD facility on residential service telephone stated in para 5 of the Statement of Imputation, had reference in the CVC advice memo, but it was a petty issue as DoT had also recommended for issuing warning only on this charge. The CVC had given advice of minor penalty proceedings on the allegation of not taking initiative of 20 more misused numbers, but the said charge was not included in the charge memo. Instead, a totally different charge of failure to supervise the activities of subordinates was included in the charge sheet (stated in para 3 of the Statement of Imputation) which was not at all considered by the CVC, as evident from the CVC advice memo. Thus, the CVC advice of minor penalty was not applicable for the charges stated in the charge memo. Therefore, the entire minor penalty proceedings stood vitiated on this ground alone. Further, without waiting for the mandatory advice of CVC, BSNL had already taken action against other 14 officials and had selectively exonerated/awarded punishment which renders the CVC advice as null and void. She has also stated that there was also the departmental evidence in the form of Tabular Form Details of 27 numbers, which clearly show that the alleged 20 numbers were never misused. Yet the charge sheet was framed on the basis of fictitious detail bill records of extraneous agency a vendor. All the four charges were, thus, imaginary and invalid and they were framed by sheer manipulation of the facts. The allegations in the charge memo were arbitrarily made which did not have any substance in them. There were no Meter Reading, Detail Call Records of alleged 20 numbers yet it was arbitrarily alleged that the 20 numbers were misused by making calls worth Rs.62 lakhs. There were no evidences of activation of the alleged 20 numbers in the Telephone Exchange and their extension to any premises, yet it was alleged that the said 20 numbers were activated and extended to private parties. There was no information, evidences about any calling party who had made calls on the alleged 20 numbers, even their names, addressed were not known, yet it was alleged that 20 numbers were misused by private parties and STD/ISD PCO. The 7 officials who allegedly extended the 20 numbers in the outdoor network were not her subordinates but they were the subordinates of SDE Phones and DE Phones, yet it was stated that her subordinates extended 20 numbers to the private parties. Thus, the charge sheet is totally bogus and deserves to be quashed.
17. The Applicant next contended that it was not possible for her to submit the defense statement as the bogus charges cannot be defended nor denied and they, being bogus, deemed as non-existing. Therefore, she had only made appeals in her various representations to quash the charge sheet. However, in the penalty order, the Respondent 5 had stated that, vide her representations dated 21.4.2011 and 21.7.2011, she had submitted her Defence Statement and had denied the charges. Thus, instead of quashing the bogus charges, not only the illegitimate order was issued, but by concealing and manipulating the facts, it was given a tint as if it was legitimate order. Further, in para 5 of the Statement of Imputation, the charge was that of activating the ISD facility on her service residential telephone and not that of using/misusing it. Yet disciplinary authority, illegitimately added the charge in the penalty order that she had frequently used ISD facility. The UPSC had treated the charge in para 4 of the Statement of Imputation as not proved but the penalty order was totally silent on this charge. Regarding the charge of International Roaming made in para 6 of the Statement of Imputation, although it was accepted in the penalty order that it was earlier dropped by the Honble MOC yet it was not specified whether this charge was treated as dropped or not. The impugned order of penalty merely recites that the Disciplinary Authority has carefully considered the records of the case and all other facts and circumstances relevant to the case. There is no evidence and justification in respect of any of the charges. It has not been specified even as to which of the charges have been treated as proved and which have been treated as dropped. It is thus not a speaking order.
18. As regards the UPSC advice, she has stated that the UPSC did not apply its mind to the detailed representation which she has made against the false/wrong allegations with as many as 34 documents. UPSC has failed to deal with the invalidity of the charges which was revealed from the information provided by the Respondent No.5, CVO, DoT only. The observations in the first part of para 4.1 of UPSC advise runs counter to the charges levelled in the Statement of Imputation of the impugned charge sheet as it seeks to make it appear that it was the Applicant who had created a number of spare telephone numbers whereas in the impugned charge sheet vide para 2, all that is alleged is that during the Applicants tenure the spare telephone numbers in question were created, as evident from paragraph 7 of the impugned charge sheet. There is no charge that the applicant herself had created the same. Further, while making the observations in para 4.2 of its advice, the UPSC has not dealt with the specific contention of the applicant in her representation dated 21.4.2011 that as per the reply of the DE (Vigilance), CG Circle in serial 20 of his letter dated 14.7.2010, the list of activities of the Applicants subordinates which were required to have been supervised by her as DE (E10B) and also the procedure of supervision of the said activities as also any departmental instructions on the subject are not available. Thus, in the absence of any concrete evidence that the DE is the ultimate supervisor of the Exchange and cannot be absolved from the responsibility of supervision over subordinates, it is not open to the UPSC to conclude that the charge in question is proved. There is a total non application of mind on the part of UPSC in its observations and findings in para 4.4 of its aforesaid advice inasmuch as the UPSC has not at all cared to dealt with the Applicants stand that in the past the very charge in question was duly dropped by the competent authority.
19. Even on merits, the Applicant has stated that the charge cannot stand the scrutiny of law if one goes by the version of the department itself. Vide reply to item no.7 of GMTD, Durg dated 15.6.2010, it has been stated that Only YJDB printout of date 1.12.1997 and 2.12.1997 is available in which ABOMO command is given to T/c No.2354000 on both days and that CT8 is for ISD or not it may be known by the then E10B exchange in charge. In other words, when the department itself is not able to say with sure with regard to the charge in question, the UPSC curiously enough without any basis has gone to the extent of saying that it is matter of record that the CO was not entitled to the facility without approval of the higher authority. In the present case, it is to be noted that there was no ISD facility at all on her service residential telephone, as has been clearly concluded by the then GMTD, Durg, in his letter dated 17.7.2000. As regards the observations and conclusions recorded in paragraph 4.5 of the impugned UPSC advice, the Commission has not bothered at all to appreciate that the said charge had already been dropped by the Honble Union Minister of Communications in concurrence with the CVC. As a matter of fact, the aforesaid documents are part of the record before the UPSC. Yet, the UPSC has mechanically proceeded and held that the said charge is proved. Coming to the observations and conclusions made in paragraph 4.6 of the UPSC advice, it is to be noted that the para 7 of the impugned charge sheet is not a separate and distinct charge. Yet, the UPSC thought it fit and accordingly treated it as sixth charge and went to conclude that the same stands proved. This again speaks volume of the total non application of mind on the part of UPSC. Therefore, had an advance copy of the aforesaid advice of the UPSC been furnished to the applicant in compliance with the ruling of the Apex Court in S.K. Kapoors case, the applicant would have got an opportunity to say that the advice suffers from the vice of various infirmities, illegalities and non application of mind.
20. Respondents have filed their reply stating that the Applicant has not exhausted all the remedies available to her before she has filed this OA as she could have sought review of the order passed by the Disciplinary Authority under Rule 29-A of the CCS (CCA) Rules, 1965, if any, new fact or material which has the potential to change the complexion of the case. Since he has not done so, the OA is liable to be dismissed on this ground alone. On merits, they have submitted that the Applicant was found guilty of serious charges of irregularities which were based on documentary evidence. Therefore, the facts of the case along with the relevant documents were sent to the CVC for first stage advice and the CVC, after examining the same, recommended initiation of minor penalty proceedings against him. They have also contended that they have followed the procedure prescribed in the statutory rules and full opportunity was given to the Applicant by following the principles of natural justice. Further, according to them, if any officer is found to have committed serious irregularities while discharging his or her official duties, he/she has to face the penal consequences of his/her acts of omission and commission and the penalty imposed on the Applicant is commensurate with the gravity of misconduct committed by her. As regards delay in initiation of the proceedings, they have stated that she was proceeded against, when irregularities committed by her came to notice and after holding proper investigation is conducted. The advice of the CVC which is competent authority to tender such advice was obtained before initiating such proceedings. All the relevant records were also furnished to the UPSC and it was only after receiving their advice, the Disciplinary Authority has imposed the punishment upon her. They have denied any violation of the procedure as laid down in the statutory rules. In this regard they have relied upon the judgment of the Apex Court in the case of Union of India Vs. Upendra Singh JT 1994 (1) SC 658 wherein it has been held as under:-
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons . The bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
21. We have heard the learned counsel for the Applicant Shri Tarun Verma and the learned counsel for the Respondents Shri H.K. Gangwani and Shri V.P. Sharma. The imputations of misconduct against the Applicant furnished to her vide the impugned Memorandum dated 10.12.2009 were that (i) during the period 1997-98 she failed to supervise the activities of her subordinate and as a result he created spare telephone numbers resulting in loss of revenue to the Respondents; she used commands to provide ISD facility with FDI from the service telephone connected at her residence and disconnected the said facility from that number without the approval of the higher authorities and she was allotted a mobile number having international roaming facility in her name without fulfilling the departmental formalities. All above alleged misconducts have, admittedly, occurred at least 10 years prior to the issuance of the Memorandum dated 10.12.2009 under Rule 16 of the CCS(CCA) Rules, 1965. It is seen that the Respondents have decided to proceed against the Applicant on the aforesaid misconduct based on a pseudonymous complaint received by them in the year 2005. It is not the case of the Respondents that they could not have detected the aforesaid alleged misconduct without having received such a complaint. There is no explanation at all from the Respondents as to why there was such an inordinate delay in issuing the aforesaid charge sheet to the Applicant. It is a settled law that such unexplained delay in issuing the charge sheet amounts to denial of reasonable opportunity for defense and the order of the Disciplinary Authority is liable to be quashed on that ground alone. The Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh and Another 1991 (Supp) SCC 738 held as under:-
There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
In State of Andhra Pradesh Vs. N. Radhakrishnan 1998 (4) SCC 154, it was held as under:-
It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti Corruption bureau had pointed out that no witnesses ad been examined before he gave his report. The Inquiry Officers, who had been appointed on after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these two later memos. Accordingly we do not find any merit in the appeal. It is dismissed with costs.
In P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SCC 636, it was held as under:-
This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed.
Mr. Prabhakar also invited our attention to the affidavit filed by the appellant in support of his case. It is stated in para 14 of the affidavit that the respondent with the mala fide intention issued the present charge memo against the appellant even though the alleged incident of issuance of sale deed was of the year 1990, which was 10 year prior to the issuance of charge memo and that very reason for issuing charge memo was that the appellant could be detained from promoting to the post of Chief Engineer of the Housing Board.
The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
In M.V. Bijlani Vs. Union of India & Others 2006 (5) SCC 88, the Apex Court had held the delay in initiation of departmental proceedings after 6 years and continuance thereof for a further period of 7 years caused prejudice to the delinquent officer. The relevant part of the said judgment is as under:-
16.The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and it continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced to the delinquent officer.
22. Again, it is seen that the impugned Memorandum dated 10.12.2009 issued to the Applicant under Rule 16 of the CCS (CCA) Rules, 1965 is based on an advice of the CVO for initiating minor penalty proceedings with a view to imposing a minor penalty other than Censure on her. Such an action on the part of the CVO is uncalled for and it is totally against the principles of natural justice and, therefore, arbitrary. In terms of Rule 16 of the CCS (CCA) Rules, 1965, an order imposing any minor penalty can be imposed upon a Government servant only after giving him reasonable opportunity of making a representation against the proposal and after taking such representation into consideration. However, in the present case the Respondents were pre-determined to impose the minor penalty upon the Applicant. The Department of Personnel & Training, vide OM No.11012/18/85-Estt.(A) dated 28.10.1985, have laid down that it is the discretion of the Disciplinary Authority to decide whether an enquiry should be held or not even in a case initiated under Rule 16 of the CCS (CCA) Rules, 1965. According to the said OM, it is only on receipt of the representation of the Government servant concerned on the imputation of misconduct or misbehaviour communicated to him and the Disciplinary Authority applied its mind to all facts and circumstances and the reasons mentioned in the representation for holding a detailed inquiry, form an opinion whether the enquiry is necessary or not. The relevant part of the said OM is reproduced as under:-
Rule 16(1-A) of the CCS (CCA) Rules, 1965, provides for the holding of an inquiry even when a minor penalty is to be imposed in the circumstances indicated therein. In other cases, where a minor penalty is to be imposed, Rule 16(1) ibid leaves it to the discretion of Disciplinary Authority to decide whether an inquiry should be held or not. The implication of this rule is that, on receipt of the representation of the Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the Disciplinary Authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry an form an opinion whether an inquiry is necessary or not. In a case where a delinquent Government servant has asked for inspection of certain documents and cross-examination of the prosecution witnesses, the Disciplinary Authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that an inquiry is not mandatory. If the records, indicate that, notwithstanding the points urged by the Government servant, the Disciplinary Authority could, after due consideration, come to the conclusion that and inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice."
On the other hand, it is seen from the advice of the CVC dated 06.02.2008, it had already come to the conclusion that the Applicant was guilty. Its advice says in clear terms that from the records of the department it is clear that ISD facility with FDI command was unauthorisedly activated frequently on residential telephone (No.3540000) during the period 27.11.1997 to 03.12.1997. Further, the Respondents have never furnished a copy of the aforesaid advice to the Applicant, in violation of the principles of natural justice. Regarding non-supply of CVC report, the Apex Court in State Bank of India and Others Vs. D.C. Aggarwal and Another AIR 1993 SC 1197 posed the question, Can Disciplinary Authority while imposing punishment, major or minor, act on material which is neither supplied nor shown to the delinquent and answered as under:-
The order is vitiated not because of mechanical exercise of power or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of rule 5. But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. From letter produced by the respondent, the authenticity of which has been verified by the learned Additional Solicitor General, it appears the Bank turned down the request of the respondent for a copy of CVC recommendation as, 'The correspondence with the Central Vigilance Commission is a privileged communication and cannot be forwarded as the order passed by the Appointing Authority deals with the recommendation of the CVC which is considered sufficient'. Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order. Non-supply of the vigilance report was one of the grounds taken in appeal. But that was so because the respondent prior to service of the order passed by the Disciplinary Authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned Addl. Solicitor General that CVC recommendations are confidential copy, of which, could not be supplied cannot be accepted. Recommendations of Vigilance prior to initiation of proceedings are different that CVC recommendation which was the basis of the order passed by the Disciplinary Authority.
23. The Apex Court in its judgment in the case of Nagaraj Shivarao Karjagi v. Syndicate Bank 1991 SCC (L&S) 965 also held that it is only the Disciplinary or Appellate Authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case and no outside agency like CVC dictate to them. The relevant part of the said judgment is as under:-
"19. The corresponding new Bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a Banking Company specified in Column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of misconduct proved. The authorities have to exercise their judicial discretion 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 third party like Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See De Smith's Judicial Review of Administrative Action 4th edn., p. 309). The impugned directive of the Ministry of Finance, is therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters."
24. Again it is seen that, after receipt of the advice of the CVC to initiate minor penalty proceedings against the Applicant and to impose a penalty other than Censure, the Disciplinary Authority obtained the advice of the UPSC and the UPSC vide its letter dated 08.02.2012 advised the Disciplinary Authority to impose the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of three years without cumulative effect and not adversely affecting her pension is imposed on the applicant. When the Applicant came to know that the Disciplinary Authority was going ahead with the disciplinary proceedings and the UPSC has already submitted its advice in the matter, requested the Secretary, Deptt. of Telecommunication, vide her letter dated 13.08.2012, to furnish her a copy of the said advice before any final order was passed. However, the Disciplinary Authority, ignored her request and imposed the very same penalty prescribed by the UPSC upon her. Such an action on the part of the Disciplinary Authority is in clear violation of the law laid down by the Apex Court in the case of Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589. The relevant part of the said order reads as under:-
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs.
25. This issue was considered by this Bench also in OA 4089/2011 Shri R.P.S. Panwar Vs. U.O.I. and Others decided on 03.12.2013 and held that the Disciplinary Authority cannot leave it to the UPSC to determine as to what penalty has to be imposed upon the delinquent employee. The relevant part of the said order reads as under:-
As the proposed penalty fall within disciplinary matters affecting a person serving under Government as envisaged in Article 320(3)( c), the Disciplinary Authority has to consult the UPSC on it. In other words, even after the aforesaid amendment, consultation with the UPSC includes consultation on the proposed penalty arrived at by the Disciplinary Authority independently. Therefore, the Disciplinary Authority cannot leave it to the UPSC to determine the penalty to be imposed upon the Government servant. In the judgment of Manbodhan Lal Srivastava (supra) also, the Apex Court has clearly stated that consultation with UPSC has been specifically provided for to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. Therefore, it is incumbent upon the Executive Government, where it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
26. In the above facts and circumstances of the case, we allow this OA and quash and set aside the (i) Annexure A-1 Office Memorandum No.007/P&T/066-3256 dated 06.02.2008 issued by the Chief Vigilance Commission, New Delhi, (ii) Annexure A-2 Memorandum dated No.8/60/2009-Vig.II dated 10.12.2009 issued by the President through the Department of Telecom., Government of India, New Delhi, (iii) Annexure A-3 Advice bearing No.F.3/10/2012-SI dated 08.06.2012 issued by UPSC, New Delhi and (iv) Annexure A-4 Order of penalty bearing No.8/60/2009-Vig.II dated 03.09.2012 issued by the President through the Department of Telecom., Government of India, New Delhi. Consequently, we direct the Respondents to restore the pay of the Applicant as it was obtaining prior to passing of the impugned order of penalty, with all consequential benefits including the grant of promotion to the next higher post at par with the Applicants immediate junior etc., if she is otherwise found eligible. We also direct the Respondents to carry out the aforesaid order/directions, within a period of 2 months from the date of receipt of a copy of this order.
27. There shall be no order as to costs.
(Shekhar Agarwal) (G George Paracken)
Member (A) Member (J)
Rakesh