Central Administrative Tribunal - Delhi
Ved Pal Singh vs Union Of India Through on 3 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1020/2012 Reserved On:23.09.2013 Pronounced on:03.12.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Ved Pal Singh Retired DANICS Officer, S/o Shri Hukam Singh R/o Flat No.551, Sunehari Bagh Apartments, Sector-13, Rohini, Delhi-110085. ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through The Joint Secretary (UT), Government of India, Ministry of Home Affairs, North Block, New Delhi. 2. The Chief Secretary, Govt. of NCT of Delhi, Delhi Secretariat, Players Building, I.P. Estate, New Delhi. ..Respondents (By Advocate: Shri R.V. Sinha). ORDER
Honble Mr. G. George Paracken, Member (J) This is the 3rd round of litigation by the Applicant. In the first round, he has filed OA No.1768/2003 in which he had challenged the Statement of Article of charge framed against him and issued on 13.12.2002 which reads as under:-
While functioning as ASTO in old ward-23 (new ward-54), Shri V.P. Singh committed misconduct in as much as he had issued 260 ST-I forms and 355 ST-35 forms to M/s Pilco Systems, and 25 ST-I and 40 ST-35 to M/s Krishna Stores in quick succession. He failed to keep a check over the nefarious activities of both the dealers by getting the transactions of the dealers (as shown in ST-II A/cs) verified through lower functionaries. Shri Singh also failed to invoke provisions of Sec 18 of DST Act, 1976 by enhancing the sureties of both the dealers in view of huge purchases indicated in ST-II A/cs furnished by them. Loss of revenue caused to the Sales Tax Department by M/s Pilco systems & M/s Krishna Stores are to the tune of Rs.30 crores and Rs.29 crores respectively.
Thus, Shri V.P. Singh by his above acts, exhibited negligence, lack of integrity in issuing statutory forms to both the dealers in quick succession causing heavy loss of revenue to the Sales Tax Department and thus acted in a manner which is unbecoming of a Govt. servant, thereby violating the provisions of Rule 3 of CCS (Conduct) Rules, 1964.
2. On receipt of the aforesaid Article of Charge, he, vide his letter dated 20.12.2002, replied to the Disciplinary Authority denying them and stating that the allegations of issuance of statutory forms to M/s Pilco System and M/s Krishna Stores relates to the year 1987 and 1988, i.e., 15 years or more ago. Moreover, documents in Annexure-III of the said memo which were proposed to be relied upon for sustaining the allegations were given to him. He has also stated those allegations are false and fabricated. Further, he has stated that after 15 years, it is not possible for him or anyone else to remember/recall exactly what was done. In any case, in order to enable him to submit a proper reply, he requested the Respondents to supply copies of all the listed documents in Annexure-III along with the applications filed by the dealer for issue of forms along with ST-II Account and also to show him the files of those dealers so that he may see what additional documents he require for his defence. Since he was superannuating on 31.12.2002, he has also requested to treat the matter as most urgent.
3. Thereafter, according to the Applicant, the Joint Secretary, Directorate of Vigilance, vide his Memo dated 7.1.2003, sent copies of some of those listed documents which were so smudged and blackened to the extent that nothing could be made out. He has also, vide his letter dated 20.01.2003, requested the said Joint Secretary to supply him copies of dealers application for statutory forms to know as to who, how and when exactly forms were ordered to be issued. A reminder to that effect was also sent to him on 3.4.2003.
4. According to the Applicant, by issuing the aforesaid charge memo dated 13.12.2002 to him alone, the Respondents have discriminated him against Shri Meena who was the STO at the relevant time but no action was taken against him. Moreover, issuance of forms was done in accordance with Rule 8 of Delhi Sales Tax Rules and Circulars No.10 of 1985-86 and 18 of 1988-89.
5. As the Respondents were going ahead with the enquiry proceedings, he filed OA No. 1768/2003 (supra) before this Tribunal for quashing the charge sheet on the ground of inordinate delay that the same has been issued to him after 14 years of the alleged incidents. The said OA was disposed of by this Tribunal vide order dated 11.11.2003 observing that the sole argument advanced on behalf of the applicant was that the charge sheet had been served with respect to issuance of statutory forms to M/s Pilco Systems and M/s Krishna Stores for the years 1987 and 1988. In other words, it pertained to an incident more than 14 years before the charge sheet had been served and, therefore, it is contended that because of the inordinate delay, the charge-sheet should be quashed. However, this Tribunal found that the applicant at no stage had pointed to the disciplinary authority that there is inordinate delay and, therefore, prejudice, if any, is caused so that the disciplinary authority could apply its mind as to whether there is any explanation for the delay that has occurred. This becomes necessary in view of what we have recorded pertaining to the ratio deci dendi in this controversy. Therefore, this Tribunal directed that the applicant to take up this matter by filing an appropriate representation to the concerned authority, who may if such representation is made, pass an appropriate order thereon.
6. Immediately thereafter, he submitted a representation on 3.3.2004 to the Chief Secretary, Government of NCT of Delhi but he did not get any reply. He has, therefore, filed another OA bearing No.1174/2005 again for quashing the same Article of Charge but it was dismissed on 05.04.2005 observing that it was premature. The relevant part of the said order reads as under:-
9. Foremost and the crucial question that arise for the adjudication is whether the service of charge sheet and the disciplinary action for a lapse or misconduct which occurred 15 years prior to the initiation of the disciplinary proceedings is liable to be quashed for the reason of inordinate delay of 15 years. The applicant had filed OA No.1768/2003 for grant of relief similar to the one which has been claimed in the present OA. The question of inordinate delay in initiating disciplinary proceedings was raised and it was considered in detail by the Tribunal. After considering the judgment of the Honble Supreme Court in State of Madhya Pradesh Vs. Bani Singh AIR 1990 SC 1308, Registrar of Cooperative Societies Madras and another Vs. F.X. Fernando (1994) 2 SCC 746, Union of India and Others Vs. Raj Kishor Parija 1995 Supp. (4) SCC 235, B.C. Chaturvedi Vs. Union of India and Others 1995 (4) SCC 749, Secretary to Government, Pribition and Excise Department Vs. L. Srinivasan 1996 (1) ATJ 617 and State Government of Andhra Pradesh Vs. N. Radhakishnan JT 1998 (3) SC 123, this Tribunal held that the proceedings could be quashed if the delay is not appropriately and satisfactorily explained and inference that inordinate delay will cause prejudice to the delinquent officials may also be drawn. We are in respectful agreement with the view taken by the learned Bench in that case.
XXX XXX XXX
13. The crux of the matter, therefore, is that what reasons have been given by the respondents for not taking action against the applicant under CCS (CCA) Rules for about 15 years. In the counter respondents submitted that after detection of the irregularities/lapses committed by the delinquent, processing of the cases took time due to the involvement of various departments. For this purpose documents were collected, version of the delinquent was obtained and examined by the concerned Department and advice of CVC was taken before the charge sheet was issued. At the time of hearing ion 24.8.2004, counsel for the respondents took time to file a detailed affidavit indicating as to when the respondents had detected the misconduct on the part of the applicant and also specifically explain as to how the delay had occurred thereafter.
14. On 17.09.2004 the learned counsel for respondents submitted that a disciplinary enquiry was held against Shri P.R. Meena which was ultimately dropped but during the enquiry the involvement of Shri Tarsem Kumar, a Sales Tax Officer and the applicant came to light. Accordingly, the disciplinary proceedings were started against Shri Tarsem Kumar in the Ministry of Home Affairs. The charges against both Shri Tarsem Kumar and the applicant were similar, i.e., the issuance of Sales Tax Forms to the dealers M/s Pilco Systems and M/s Krishna Stores and the relevant record was required for holding a disciplinary enquiry against Shri Tarsem Kumar. The said record was not available for initiating the disciplinary proceedings which caused delay. At the hearing it was noticed that the affidavit filed on behalf of the applicant did not disclose as to how much time was taken in holding enquiry against Shri Tarsem Kumar and when did the department take decision for holding enquiry against the applicant too. The respondents were, accordingly, directed to file a further additional affidavit to explain the delay on this aspect also. Additional affidavit has since been filed.
15. In the first additional affidavit dated 17.9.2004 filed by Shri I.C. Bhardwaj, Sales Tax Officer on behalf of the respondents the facts disclosed were that Shri Tarsem Kumar and the applicant Shri V.P. Singh were issued memos on 30.05.1996 and the reply were received. The allegation was that both these officers had issued forms to M/s Pilco Systems and M/s Krishna Stores. The original documents of Shri Tarsem Kumar were sent to the Ministry of Home Affairs of the Government of India by letter dated 07.10.1999, since that Ministry happened to be the disciplinary authority in the case of Shri Tarsem Kumar. The Ministry processed the case and desired to see the files of the dealers wherein the irregularities were committed in the issuance of Sales Tax Forms. The matter with regard to the applicant was not taken up further since file was within the Ministry of Home Affairs. Then it was noticed that action is required to be taken on reply of the applicant. The then Commissioner of Sales Tax recommended for initiating disciplinary proceedings for major penalty and accordingly, the enquiry officer was appointed for holding enquiry into the charges and the charge sheet was served on the applicant. The record of M/s Pilco systems and M/s Krishna Stores has since been returned by the Ministry of Home Affairs only on 21.4.2004. The case of Shri Tarsem Kumar is still pending as he was filed an OA before Port Blair Bench of this Tribunal.
29. Section 18 of the Sales Tax Act does require determination of a question whether a condition of furnishing security may be imposed on a dealer for grant of a Registration Certificate or its continuation with a view to secure the revenue or for proper custody or use of forms issued to a dealer. Since it would affect the right of the dealer such determination could be done by the Sales Tax authorities after providing a hearing to the effected party and after recording reason therefor. Purpose is to safeguard the Tax Revenue or proper custody or use of the statutory forms. The dealer may be required to furnish security as a condition for issue of registration certificate or extension thereof. This function will squarely fall within the domain of quasi judicial function of the Sales Tax authorities. But issuance of statutory Sales Tax Forms is not part of quasi judicial function. The quasi judicial function begins when the Sales Tax authority considers the question of imposing condition of security or its enhancement for grant of Registration Certificate or its continuation. Here the allegation is that the applicant had failed to get the transaction of the dealer verified so that, if need be provision of Section 18 of Sales Tax Act was invoked by appropriate authority for securing the Tax revenue and custody and use of the statutory forms issued to him. Invocation of power given by Section 18 was not a condition precedent to the issue of Sales Tax forms. The accusation against the applicant is about not discharging duty while issuing ST forms and not that while exercising powers under Section 18 he had misconducted himself. Therefore, the argument of the learned counsel for the applicant that the applicant was discharging the quasi judicial function while issuing ST forms which cannot be called in question in a departmental proceedings does not have any merit. Counsel for respondents has argued that even a quasi judicial function, if it had reflection on the reputation of the employees integrity may be a misconduct for which disciplinary proceeding are not barred. Anyway the argument of the learned counsel for the applicant on this point is not tenable and it is repelled.
30. Learned counsel for applicant has also argued that after the service of the memo in 1996 applicant was given two promotions, firstly, he was regualrised in the grade of DANICS in August 2001 and he was also granted higher scale of DANICS in November 2001, therefore, the respondent should not be deemed to have condoned the misconduct of the applicant. Reference has been made to Anudhraj Singh Vs. State of M.P. AIR 1967 MP 284 wherein it was observed, if the lapses or misconduct is one which is known to the party before the person is promoted and not one when comes to light subsequent to the promotion, and if the authority concerned knowing of this lapse or misconduct promotes the civil servant without any reservation then it must be taken that the lapse or misconduct has been condoned. He also referred to Mrinal Vs. State of West Bengal reported in 1993 SC SLR 1 which laid down that departmental proceedings could not be initiated on account of misconduct which had taken place prior to the grant of promotion and if the promotion had been given after the consideration of the service record it would amount to giving a clean chit estopping the disciplinary authority to serve charge sheet and hold disciplinary proceeding subsequent thereto.
31. To our view, it is premature to decide upon this question at this stage. We refrain from delving into the question any further at this stage lest it cause prejudice to any of the parties. We leave it open to the applicant to raise it during the disciplinary proceedings and if necessary before the higher authorities and the Tribunal later. Similarly, other ground like arbitrariness of the disciplinary action or that the charge sheet is not based on evidence or that the conduct has to be adjudged in the context of the situation and the circumstances or that the charge sheet did not point out to any rule or statutory provision barring issuance of forms to the dealers etc. legitimate defence available to the applicant in respect of each of these and other available pleas may be urged in the proceeding at appropriate stage.
32. The result of the above discussion is that we do not find any ground to interfere with the Article of Charge and pending disciplinary proceeding against the applicant at this stage. OA does not have merit and it is dismissed but without cost.
7. Against the said order, the applicant approached the Honble High Court of Delhi by filing Writ Petition No.12808/2005 and the same was decided on 25.08.2005. The relevant part of the said order reads as under:-
Heard learned counsel for the parties. The petitioner has filed this petition against the order of the Central Administrative Tribunal dated 5th April, 2005 dismissing the original application of the petitioner. During the course of the arguments before us it was submitted that the petitioner has not been allowed to cross examine the prosecution witnesses who were produced in the departmental proceeding. It is also submitted before us that the petitioner wants to examine himself in his defence an that no other defence witness would be produced by the petitioner.
We are satisfied that the petitioner should be given an opportunity to cross-examine witnesses of the prosecution and examine himself in the proceeding as a defence witness. At the same time, we do not desire that there should be any delay in completing the departmental proceeding. We are informed that in the ex parte proceeding conducted, inquiry report has already been submitted by the inquiry officer to the disciplinary authority without affording a proper opportunity to the petitioner to cross examine the prosecution witnesses and also to examine himself as defence witness. In that view of the matter, the inquiry report which is submitted is directed to be recalled and after cross examination of the prosecution witnesses and examination of the petitioner as defence witness, a fresh inquiry report on the basis of the record and the evidence adduced shall be submitted by the inquiry officer. Thereafter, it shall be open to the disciplinary authority to proceed in the matter in accordance with law. The petitioner shall have the liberty to examine the record of the disciplinary proceeding on 8th September, 2005. We direct that the prosecution witnesses shall be made available before the inquiry officer for cross examination by the petitioner or his defence assistant on 12th September, 2005 and on 13th September, 2005 the petitioner shall examine himself as defence witness. Thereafter, the inquiry officer, upon consideration of the evidence on record, shall submit his report in accordance with law.
In terms of the aforesaid order, the writ petition stands disposed of. Copies of this order be issued dasti to counsel appearing for the parties under the signatures of the Court Master of this Court.
So far as the question of delay in initiation of departmental proceeding is concerned, we have heard learned counsel for the petitioner. We find no reason to take a different view than what has been taken by the Tribunal. The said contention, therefore, is held to be without merit. However, the issue relating to the promotion of the petitioner, left open by the learned Tribunal in its impugned order, is not being examined by us. The same, as has been done by the learned Tribunal, is kept open.
8. After the aforesaid order was passed by the High Court, the Respondents remitted the case file to the Enquiry Officer to hold further enquiry in the mater. Thereafter, the Enquiry Officer, vide his report dated 29.11.2005, held that the aforesaid charge has been proved. His findings/conclusions are as under:-
7.1 From the foregoing commentary and analysis, it is more that clear that Shri V.P. Singh had knowingly issued a large number of statutory forms to these dealers in quick succession without safeguarding the Government revenue and in close connivance with them as immediately after the forms were stopped, the nefarious dealers were not available in the market and were not responding either to the assessment notices being issued by the subsequent assessing authorities. It appears as if once the handiwork of the charged officer and the dealers was over, then there was nobody to appear before the subsequent issuing authorities in order to get their assessment done.
7.2 To sum up, the main argument of charged officer has been:-
That he simply certified the issue of forms on behalf of then STO;
He did not order for any STI survey report or enhancement of surety/security because the cases were pertaining to STO being A category cases.
7.3 To the above, it is needless to repeat here that there is no such procedure of certifying issuance of statutory forms on the form issuance sheet on behalf of the then STO. Moreover, the act of issuance of statutory forms being a quasi-judicial function, cannot be undertaken on behalf of someone else. Further, Shri V.P. Singh has issued these statutory forms not once but as many as 14 times over a period of 13 months and when asked whether every time he took permission from the then STO, he only gave an evasive reply. The form issuance sheet clearly bears charged officers signatures as token of issuing statutory forms to these dealers. So the fact that Shri V.P. Singh had issued these forms to these two dealers in his own wisdom without safeguarding the Government revenue is indisputable.
7.4 To reply his second argument as has already been narrated in the inquiry report, when Shri V.P. Singh was repeatedly issuing statutory forms, it was his duty to ensure that forms are being used properly and for that purpose he should have ordered for some STI survey or enhanced the surety or obtained security like bank guarantee etc. from these two dealers. Further, not only did the charged officer fail to order for an STI survey to check bona fides of the dealers or to prescribe additional sureties/securities but he also failed in getting the purchases made by these two dealers cross-verified from the other Wards. Had he done so, the misuse of statutory forms issued by the charged officer to these two forms could have been noticed.
7.5 Finally, having perused the material related to prosecution witnesses, cross-examination/re-examination and the defence arguments made by the charged officer in his written brief/submission and also having perused the Memorandum and Articles of Charges (Annexure 1, II and III) against Shri V.P. Singh, I finally conclude that the charge against Shri V.P. Singh exhibiting negligence, lack of integrity in issuing statutory forms to both the dealers in quick succession causing heavy loss of revenue to the Government is PROVED.
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(P.C. Jain) Inquiring Authority/ Joint Secretary (GAD).
9. Applicant submitted his reply to the said report. According to him, the Enquiry Officer conducted the enquiry in a biased manner without following the rules, principles of natural justice and violating Rule 14 of the CCS (CCA) Rules specially Rule 14 (18) as he failed to examine him and to question him on the circumstances appearing against him. However, the Disciplinary Authority after taking the advice of the UPSC in the matter, passed the impugned penalty order dated 29.11.2011 and its relevant part reads as under:-
9. And whereas, on examination of the inquiry report, the statement of witnesses, evidence on record and facts & circumstances of the case, the following points emerged:-
The prosecution witnesses clearly deposed in the inquiry that certification of issuance of forms is not done by ASTO on behalf of the STO. After forms are sanctioned and delivered to the dealer, the Record Keeper marks entry thereof on separate forms issuing sheets and the form issuing authority puts his signature on the sheets.
C.O. has never indicated on the issuance sheets that the statutory forms were issued on the directions of the STO. Further, such quasi judicial function cannot be done on behalf of another authority. The contention of the Charged Officer that he issued large number of forms on the directions of the STO on number of occasions cannot be accepted/believed. The C.O. should have exercised restraints in issuing forms keeping in mind that these dealers were newly registered.
It is clearly established during inquiry by the deposition of prosecution witnesses that survey is carried out when forms receiving dealer is using those forms for very heavy purchases. From the assessment orders, it is very much clear that very large number for forms have been issued for very big amounts whereas the amount as reflected by the dealers are under shown. No records of purchasers are also available in respect of some forms.
The Charged Officer has failed to invoke Delhi Sales Tax Act, 1975, to safeguard the revenue as he has issued statutory forms in quick succession to the dealer. Thus, the C.O. had issued these forms without safeguarding the government revenue. Had he invoked Section 18 of the Delhi Sales Tax Act, 1975 and had he ordered STI survey to check the bonafide dealers, the misuse of statutory forms issued by the C.O. could have been noticed/avoided.
10. And whereas, while rendering their advice, the UPSC has observed that the C.O. had not resorted to any precaution to safeguard the revenue interest of the Government. The form issuing sheets are bearing his signatures as a token of his order/approval for issue of a particular number of forms to these dealers. The C.O. appeared to be in close connivance with dealers as immediately after the forms were issued the dealers stopped responding to the assessment notices issued by the subsequent assessing authorities and were not available in the market. Though exact loss of revenue caused to the Sales Tax Department vis-a-vis the charge against the C.O. could not be computed, the charges against the C.O. for exhibiting negligence and lack of integrity in issuing statutory forms to both the dealers in quick succession causing heavy loss of revenue stand proved. The charge is as such, partly proved as the total loss could not be computed.
11. And whereas, in view of the foregoing, it is clearly established that the C.O. had issued large number of statutory forms to both the dealers without safeguarding the revenue of the government by not enhancing sureties of both the dealers in view of heavy purchase/transactions made by them. He had also failed to verify their activities through lower functionaries (i.e. STI). Since, the exact revenue loss could not be computed, though loss to the tune of Rs.30 crores and Rs.29.00 crores respectively are indicated in the chargesheet, the charge is partly proved.
12. And, now, therefore, after considering the enquiry report, the evidence on record and the facts and circumstances of the case the President, by virtue of power vested under Rule 9 of CCS (Pension) Rules, 1972 has decided in agreement with the advice of UPSC that the charge is partly proved and grave and that the ends of justice would be met in this case if the penalty of withholding of 50% of the monthly pension otherwise admissible to Shri V.P. Singh, DANICS (Retd.) i.e. the Charged Officer is imposed on him on a permanent basis and further the gratuity admissible to him should also be withheld permanently and orders accordingly.
(By Order and in the name of the President) Sd/-
(A.K. Das) Under Secretary to the Govt. Of India.
10. The Applicant challenged the aforesaid order in this OA on the following grounds:-
(i) That the charge sheet pertains to the years 1986-87 and 1987-88 and there was no reason and justification to issue the same so late. The Respondents have not explained the reasons for delay as such inordinate delay has caused prejudice to him for issuing the charge sheet. Therefore, it is liable to be quashed and set aside on the basis of the judgments of the Apex Court in the cases of A.P. Vs. N. Radhakishan 1984 (4) SCC 154, State of Madhya Pradesh Vs. Bani Singh and Another 1990 Suppl. SCC 738, P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board 2005 (6) SCC 636 etc. The relevant part of the judgment in P.V. Mahadevans case (supra) is as under:-
7. 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.
(ii) That the Applicant was discharging his duties honestly and he did not commit any mistake. Further, if at all there was an error in his judgment, per se, it is not a misconduct as held by the Apex Court in the case of Inspector Prem Chand Vs. Govt. of NCT of Delhi and others JT 2007 (5) SC 294. The relevant part of which is as under:-
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
(iii) That the charge relates to the quasi-judicial functions he was discharging and the same could not have formed the basis for any disciplinary action. In this regard he has also relied upon the judgment of the Apex Court in Zunjar Rao Bhikaji Nagarkar Vs. U.O.I JT 1999 (5) SC 366. The relevant part of the said order reads as under:-
42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed.
(iv) He has also stated that his action was in accordance with the Respondents own Circular No.10 of 1984-85 dated 04.07.1984 which reads as under:-
OFFICE OF THE COMMISSIONER OF SALES TAX L BLOCK: VIKAS BHAWAN: NEW DELHI110002 To All the Assessing Authorities, Sales Tax.
SUB: Issue of ST-I & C Forms etc. It has been brought to the notice of the undersigned by different Trade Associations that Statutory Forms are not being issued to the dealers in sufficient number so as to meet their genuine requirements. During the course of inspection by the senior officers of the department, it has also been observed that the demands of forms by the dealers had been drastically curtailed by the Ward Officers arbitrarily without assigning any reasons for not accepting the demand in full.
Instructions in this behalf have since been issued vide Circular No: 18 of 1983-84 emphasizing upon the Assessing Authorities to ensure that sufficient number of forms are issued to the bonafide and established dealers so that a dealer does not have to visit the Sales Tax Office more than once in a quarter to replenish his requirement of such forms.
All the Assessing Authorities are, therefore, directed to ensure that requirement of Statutory forms of the bonafide and established dealers is attended to properly. It may also be kept in view that the assessment of big dealers upto 1982-83 has to be completed immediately and this would not be possible unless sufficient statutory forms are issued to them according to their genuine requirement. Needless to advise that in such cases where the demand may be heavy and an Assessing Authority is suspicious with regard to the bonafide use of such forms by the dealers, the dealers can be directed to fill-up all the three copies of the ST-I forms in the Office and the filled-up forms can be counter-signed by the Assessing Authorities after satisfying that the goods so purchased have been properly accounted for.
Sd/-
(S.R. Sharma) COMMISSIONER: SALES TAX, NEW DELHI 110 002.
No.:F-1(67)/14/84/GCST/8152/8551 DTD.4-3-1984 Copy forwarded for information and necessary action to:-
All the Asstt. Commissioners, Sales Tax.
P.A. to C.S.T. Guard File, PPR Branch ( 5 Copies).
Sd/-
(A.K.GUHA) DEPUTY COMMISSIONER (SALES TAX) VIKAS BHAWAN, NEW DELHI-110 002.
(v) The Disciplinary Authority has never communicated the UPSC advice prior to the passing of the impugned penalty order and the Applicant was not given any opportunity to submit his representation against the said advice which was adverse to him. Such a procedure adopted by the Disciplinary Authority was against the principles of natural justice. In this regard the learned counsel for the Applicant has relied upon the judgments of the Apex Court in S.N. Narula Vs. Union of India and Others 2001 (4) SCC 591 and in Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589.
Relevant part of the judgment in S.N. Narulas case 6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in Paragraph 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.
Relevant part of the judgment in S.K. Kapoors case 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.
(vi) The action taken by the Respondents in issuing the charge sheet is not only illegal and arbitrary but also discriminatory in as much as that during the same period, Shri P.K. Meena, the STO had also issued the same dealers forms. Even though, action was initiated against him, subsequently the same was dropped. Thereafter, neither any charge sheet was issued to him nor any penalty was imposed.
(vii) The charge was issued to the Applicant only on 13.12.2002, i.e., just a few days before his retirement 31.12.2002. After retirement, under Rule 9 of the CCS (Pension) Rules, 1972, the penalty of cut in pension or withholding of the gratuity can be imposed only on the charge of grave misconduct. For the first time only in the UPSCs report such a mention was made. Based on the said report only the Disciplinary Authority stated in its order that charges established against the CO constitute grave misconduct on his part meaning thereby that it is based only on the advice of the UPSC, the Disciplinary Authority held that the charges against the Applicant constitute grave misconduct. There was no such allegation neither in the charge sheet nor in the findings of the Enquiry Officer. In such a situation, if the UPSC or the disciplinary authority come to a different conclusion as against the findings of the Enquiry Officer, the prescribed procedure was to give the disagreement note to the Applicant before taking any decision. Unless and until it has been proved in the inquiry that the charge was grave in nature, one cannot be penalized under Rule 9 of the CCS (Pension) Rules, 1972 as held by the Apex Court in its judgment in D.V. Kapoor Vs. Union of India and Others 1990 (4) SCC 314 wherein it was held as under:-
6. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60/-.
7. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must he correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the. President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.
8. In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved. Accordingly the appeal is allowed and the impugned order dated November 24, 1981 is quashed but in the circumstances parties are directed to bear their own costs.
In this regard he has also relied upon the judgment of the High Court of Delhi in Union of India Vs. T.P. Venugopal Writ Petition ( C) No.12759-61 of 2006 decided on 06.11.2007 wherein it has been held as under:-
15. The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him.
.. .. .. ..
17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming a Government Servant has not recorded reasons as well as the findings as to commission of grave misconduct or grave negligence by the respondent. We also find that in the Memorandum issued to the respondent under Rule 14 of the CCS (CCA) Rules, 1965, petitioner has not leveled any such allegations against the respondent of having committed himself in such a manner so as to constitute grave misconduct or grave negligence and to invite penalty under Rule 3 of the CCS (CCA) Rules. (emphasis supplied) He has further relied upon the common order of this Tribunal in OA No.397/2009 with OA No.448/2009 Shri B.P. Mahaur Vs. The Secretary to Government of India and Others wherein the aforesaid judgment of the Apex Court in D.V. Kapoor (supra) has been relied upon. The relevant part of the said order reads as under:-
In M.J.A. Khan (supra), a coordinate Bench of this Tribunal relied on the following observations of the Honourable Supreme Court in D.V. Kapoor Vs. Union of India and Ors., (1990) 4 SCC 314 :
6. As seen the exercise of power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60. The Tribunal held thus in this case :
10. The only finding of grave misconduct, which transpires is form the UPSCs report, which is a consulting agency and the aforesaid advice cannot be treated as a part of the departmental inquiry. In such view of the matter, even if there is a disagreement by the President to the UPSCs advice, the condition precedent for recording of finding in the inquiry as to the grave misconduct has not been satisfied. We also do not find such a finding recorded by the President before imposing the penalty of pension cut. 12. In the result, for the foregoing reasons, as the condition precedent for imposition of penalty of pension cut has not been followed and satisfied in the present case, the penalty imposed cannot be sustained in law, OA is allowed. Impugned order is set aside. Respondents are directed to restore full pension to the applicant with arrears as also the simple interest of 9% from the date the pension was due till it is actually paid. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs. In P.K. Gupta Vs. Union of India & Ors., O.A. No. 1303/2003, decided on 22.02.2008 and quoted in M.J.A. Khan (supra), the following observations have been made :
10. Though regarding 25% cut in pension on permanent basis as per the decision of the Apex Court in D.V. Kapoor (supra), the condition precedent that during the course of enquiry a finding of grave misconduct should be recorded, from the charge and the enquiry report we find that no finding as to grave misconduct has been recorded, yet the Presidential order imposed upon applicant on the basis of grave misconduct a penalty of pension cut, when such a finding has not been recorded, what is required is that a finding should have been recorded in the enquiry and not by the President. UPSC recommendation as to grave misconduct not forming part of the departmental enquiry cannot be held in law that such a finding has been recorded in the departmental enquiry, as such for want of condition precedent, exercise of jurisdiction by the President is contrary to law. The order of the President was set aside on the same grounds in Dr. R.U. Ahmed (supra) also.
We have quoted the findings of the inquiry officer in the preceding paragraph 2 of this order. The gravity of the charge was based on the allegation that the Applicant issued the forms to the dealer in active connivance with the latter. Once the inquiry officer has concluded that there was no active connivance of the Applicant, sting is taken out of the charge. Then it becomes a case of mere negligence, but not grave negligence. The charge of dereliction of duty has also been proved in the context that the Applicant did not observe the rules and procedures scrupulously. Grave misconduct is not made out on this basis. The inquiry officer has also observed in his conclusion that [S]crupulous observance of rules and procedures could have prevented the dealer from taking advantage of so many blank ST forms and thereby the avoidable loss of Government revenue. The charge in the Article of Charge, in the context of loss of Government revenue, is that [T]his caused heavy loss to the government revenue and this itself proves the active connivance and a helping hand of Sh. Mahaur to the dealer. As we have seen, the charge of active connivance has not been proved against the applicant. As to the loss of revenue, there is not even a soupcon of mention about the actual loss either in the charge and imputation of misconduct or in the report of the inquiry officer. No witness has testified to any loss let alone huge loss to the Government revenue. There is no quantification of any loss. This charge and the conclusion regarding the charge are not founded on facts. The negligence and misconduct proved against the Applicant are not grave negligence and grave misconduct. There is no analysis of the facts or the report of the inquiry officer in the advice of the U.P.S.C. It is a mere reproduction of charge and portions of the inquiry report. The President has merely reproduced the advice of the U.P.S.C. regarding grave misconduct.
9. The disciplinary authority and the President had tentatively suggested a penalty of cut of five per cent pension for two years. It is shrouded in mystery as to how the U.P.S.C. enhanced the tentative penalty to ten per cent cut in pension for ten years. There should be some yardstick for that. It cannot be on the mere ipse dixit of the official rendering the advice. This issue had been examined by this Tribunal in Smt. Raman Munjal Vs. Union of India and Others, O.A. No. 834/2008, decided on 13.01.2009. In this case also the President had tentatively decided for two per cent cut in pension for two years. The U.P.S.C. advised ten percent cut for five years without giving reasons for the enhancement in punishment. The Tribunal observed thus :
. The second contention of the learned counsel, i.e., in the advice of UPSC for 10% cut in pension for five years, the Presidential order suggesting a cut of 2% for two years was not even referred to by the UPSC nor any reasons were given for enhancing the quantum of punishment, also appears to have substance. The disciplinary authority even though, of tentative view, thought it proper to impose a cut of 2% in pension for two years, but the UPSC would not even remotely refer to the same and would give no reason whatsoever to form an opinion that the quantum of punishment should be 10% cut in pension for five years. We need not go into the question as to whether UPSC in exercise of its power to give advice, may opine with regard to quantum of punishment and to enhance it, but surely, if the UPSC gives an opinion different than the one expressed by the disciplinary authority, though tentatively, particularly to enhance the punishment, in our considered view, it must give reasons for the same. As mentioned above, the UPSC has not even mentioned that the disciplinary authority was of the view that the quantum of punishment could be 2% cut in pension for two years.
We are in respectful agreement with the view. It is our considered opinion that the advice of the U.P.S.C. for enhancing the punishment proposed by the disciplinary authority or the President should be based on cogent reasons, which should be recorded.
10 The O.A. would thus succeed on the above considerations. We need not consider the aspect of U.P.S.C. exceeding its mandate by advising enhancement of the punishment without recording reasons for this because the impugned order of the President has to be set aside because no grave misconduct or negligence has been made out in the disciplinary proceedings which is the sine qua non for imposing cut in pension. The impugned order is quashed and set aside. The pension of the Applicant is restored to the amount payable to him, as if no punishment has been awarded to him. The arrears of the amount recovered, leave encashment and gratuity would be released to the Applicant within three months from the date of passing of this order with 8 per cent simple interest per annum. Payment of full pension would also be made within this period of three months. No costs.
(viii) As to the loss of revenue mentioned in the Article-I of charge, there is no mention about it either in the report of the Inquiry Officer or in the order of the Disciplinary Authority. No witness has ever testified during the enquiry that there was any loss of revenue. Hence charge of grave misconduct and negligence against the applicant are not proved.
11. Respondents in their reply have submitted that consequent upon the retirement of the Applicant on superannuation on 31.12.2002, the disciplinary proceedings already initiated against him were deemed to have been continued as per Rule 9 CCS (Pension) Rules, 1972. The Enquiry Officer in his report dated 30.07.2004 held that the Article of charges has been proved. A copy of the said report was made available to him on 24.8.2004 to which he submitted his reply on 5.10.2004. Thereafter, he filed OA No.1174/2004 (supra) which was dismissed. Against the said order, he filed Writ Petition No.12808/2005 before the High Court and it was disposed of on 25.08.2005 with certain directions. In terms of the said directions, enquiry was again held and charges stood proved. The CVC and the UPSC were consulted and finally the order dated 29.11.2011 was issued with the approval of the President imposing upon the Applicant the penalty of withholding 50% of monthly pension on a permanent basis and further withholding gratuity admissible to him permanently.
12. As regards the grounds taken in this OA are concerned, they have submitted that disciplinary proceedings are not like criminal proceedings. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt as held by the Apex Court in U.O.I. Vs. Sardar Bahadur 1972 (2) SCC 225. They have further submitted that strict rules of procedures and proof do not apply to a departmental enquiry as held in U.O.I. Vs. A. Nagamalleshwara Rao AIR 1998 SC 111 and the High Court/Administrative Tribunal cannot interfere if the punishment has been imposed after holding enquiry and further held that the judicial review is restricted to the manner in which the administrative authority exercised power the decision of the authority need not be correct according to the opinion of the court, as held by the Apex Court in B.C. Chaturvdi Vs. Union of India & Others 1995 (6) SCC 749. Same view has been reiterated by the Apex Court in Parmandands case AIR 1989 SC 1185.
13. As regards the contention of the Applicant that the charge leveled against him relates to the quasi judicial functions and the same could not have been made as the basis for any disciplinary proceedings, the learned counsel for the Respondents has relied upon the judgment of the Apex Court in the case of Union of India and Others Vs. K.K. Dhawan JT 1993 (1) SC 236 which has been referred to in the judgment in Zunjar Rao Bhikaji Nagarkar (supra) and the relevant part is as under:-
17. In Union of India Vs. K.K. Dhawan JT 1993 (1) SC 236 respondent was working as Income Tax Officer. A charge Memorandum was served on him that it was proposed to held an inquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In the statement of article of charge framed against him, it was alleged that he completed assessment of nine firms in "an irregular manner, in undue haste and apparently with a view to conferring undue favour on the assessees concerned". An application filed by the respondent against the proposed action was allowed by the Central Administrative Tribunal and it was held that orders passed by the respondent as Income Tax Officer were quasi judicial and could not have formed the basis of disciplinary action. Charge memorandum was, thus, set aside. The question before this Court was whether an authority enjoyed immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi judicial functions. After examining the earlier decisions of this Court in V. D. Trivedi v. Union of India (1993) 2 SCC 55; Union of India v. R. K. Desai (1993) 2 SCC 49; Union of India v. A. N. Saxena (1992) 3 SCC 124 : (1992 AIR SCW 1119 : AIR 1992 SC 1233 : 1992 Lab IC 1139) and also in S. Govinda Menon v. Union of India AIR 1967 SC 1274 this Court held as under:-
"Certainly, therefore, the officer, who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act but we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty ;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a Government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however, small the bribe may be because Lord Coke said long ago "though the bribe may be small vet the fault is great.
The instances above catalogued are not exhaustive, however, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."
He has also relied upon the judgment of the Apex Court in the case of U.O.I. and Others Vs. Duli Chand 2006 (5) SCC 680. The relevant part of the said judgment is reproduced as under:-
5. The law on the subject was considered in extenso in the three-Judge Bench decision of Union of India v. K.K. Dhawan((1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1) wherein it was noted that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi-judicial functions was wrong. It was further said that the officer who exercises judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. The Court listed six instances when such action could be taken: (SCC p. 67, para 28) "28. (i) where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'."
6. The Court, however, made it clear that ultimately the matter would have to depend upon the facts of a particular case. The present case would fall squarely within the fourth instance listed above.
7. The decision in K.K. Dhawan case((1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1) was considered by this Court and followed in Govt. of T.N. v. KN. Ramamurthy((1997) 7 SCC 101 : 1997 SCC (L&S) 1749). In that case the Tribunal had set aside the order imposing punishment on an officer who had been discharging judicial functions. The Court was of the view that the Tribunal's action was contrary to the several judgments of this Court and the settled law on the question.
8. In 1999 another Bench of two Judges in Zunjarrao Bhikaji Nagarkar((1999) 7 SCC 409 : 1999 SCC (L&S) 1299) considered and referred to these earlier decisions. However, the Court appears to have reverted back to the earlier view of the matter where disciplinary action could be taken against an officer discharging judicial functions only where there was an element of culpability involved. Since in that particular case there was no evidence whatsoever that the employee had shown any favour to the assessee to whom refund had been made, it was held that the proceedings against him would not lie. In fact the Court set aside the disciplinary proceedings at the stage of the issuance of charge-sheet to the charged officer.
9. In our opinion, Nagarkar case((1999) 7 SCC 409 : 1999 SCC (L&S) 1299) was contrary to the view expressed in K.K. Dhawan case((1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1). The decision in K.K. Dhawan((1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1) being that of a larger Bench would prevail. The decision in Nagarkar case((1999) 7 SCC 409 : 1999 SCC (L&S) 1299) therefore does not correctly represent the law. Inasmuch as the impugned orders of the Tribunal and the High Court were passed on the law enunciated in Nagarkar case((1999) 7 SCC 409 : 1999 SCC (L&S) 1299) this appeal must be allowed. The impugned decisions are accordingly set aside and the order of punishment upheld. There will be no order as to costs.
14. He also submitted that the aforesaid law has been followed in the judgment in Ramesh Chander Singh Vs. High Court of Allahabad & Another 2007 (4) SCC 247 also. The relevant part of the judgment is as under:-
17. In Lunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881, this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the Judicial Officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Art. 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level.
15. He has also submitted that the High Court of Delhi in the case of Union of India and Another Vs. Shri Biswabijoyee Panigarihi and Another WPC No.4539/2012 and connected cases decided on 15.07.2013 held that it is not necessary that the advice of the UPSC be given to the delinquent before Disciplinary Authority passing its order in the disciplinary proceedings. The relevant part of the said order is as under:-
2. The common point in all the three writ petitions pertains to whether advice obtained from UPSC by the Competent Authority before levying penalty was required to be supplied to the charged officer when report of the Inquiry Officer was forwarded to him and not along with the order levying penalty.
3. In a short decision, which incidentally does not note Rule 32 of the CCS (CCA) Rules, 1965, decided on January 30, 2004, but reported in the year 2011, as (2011) 4 SCC 591 S.N.Narula Vs. UOI & Ors. a two Judge Bench of the Supreme Court held that the advisory opinion obtained from UPSC had to be communicated to the charged officer before the Disciplinary Authority inflicted the punishment and not after inflicting the punishment. In other words the requirement would be to forward advice received from UPSC along with the report of the inquiry while seeking response of the charged officer to the report of the Inquiry Officer.
4. In a reasoned decision, taking note of Rule 32 of the CCS (CCA) Rules, 1965 and noting the decision reported as AIR 1957 SC 912 State of U.P. Vs. Manbodhan Lal Srivastava which considered Article 320 of the Constitution of India, reported as (2007) 4 SCC 785 UOI & Anr. Vs. T.V.Patel, a two Judge Bench of the Supreme Court held that advice received from UPSC was not to be sent to the charged officer when report of the Inquiry Officer was forwarded for his response and that as per the mandate of Rule 32 of the CCS (CCA) Pension, 1965 it would be sufficient compliance with law that the advice received from UPSC was sent along with a copy of the order levying penalty passed by the Competent Authority.
5. Probably for the reason the earlier decision in S.N.Narulas case (supra) was not published when T.V.Patels case was decided on April 19, 2007 the attention of the Bench which decided T.V.Patels case was not drawn to the decision in S.N.Narulas case.
6. Deciding Civil Appeal No.5341/2006 on March 16, 2011, an opinion reported as (2011) 4 SCC 589 UOI & Ors. Vs. S.K.Kapoor, noting the conflicting destinations reached by two co-ordinate Benches of the Supreme Court in S.N.Narulas case (supra) and T.V.Patels case (supra) a two Judge Bench of the Supreme Court observed that it being well-settled that if a subsequent Co-ordinate Bench of equal strength wants to differ with a view taken earlier on it has to refer the matter to a Larger Bench otherwise the prior decision of the Co-ordinate Bench has to be treated as binding on subsequent Bench of equal strength.
7. Only on aforesaid reasoning in S.K.Kapoors case (supra), law declared in T.V.Patels case was not followed.
8. In the three impugned decisions the Tribunal has applied the law declared in S.N.Narulas case.
9. Rule 32 of the CCS (CCA) Rules, 1965 which deals with supply of copy of advice received from UPSC reads as under:-
32. Supply of copy of Commissions advice Whenever the Commission is consulted as provided in these Rules, a copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the government servant concerned along with a copy of the order passed in the case by the authority making the order. XXX XXX XXX
18. It may not be the province of a High Court to comment on the judgment of the Supreme Court which are entitled to respect and in the interest of justice it would be the duty of the High Court to respectfully follow a law declared by the Supreme Court. But faced with conflicting judgments the correct approach by a High Court would be to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgments.
19. Now, the constitutional vision pertaining to the role of UPSC is to confer upon it an advisory jurisdiction pertaining to disciplinary matters, which is evidenced from the use of the expression may in sub-Article 3 of Article 320 of the Constitution of India. Opinions by UPSC on disciplinary matters are not binding on the Disciplinary Authority which has to apply its own independent mind as was explained in T.V.Patels case (supra). Now, logic and commonsense guides us that where an opinion has to be sought after Inquiry Officer records evidence and pens a report it would better serve the purpose of the person likely to be affected by such an opinion i.e. the charged officer, if before seeking the opinion his version is obtained and placed before the opinion maker. This would also be a better compliance with the principles of natural justice. That natural justice demands that it be made known to a person whose interest is in issue as to what is the material which would be used by the decision maker would not be attracted in a situation of the kind i.e. the decision maker who is seized with the report of an Inquiry Officer seeks advice of UPSC and the said advice sought is on the report of the Inquiry Officer without the response of the charged officer thereon.
20. This would be our additional reason to go by the law declared by the Supreme Court in T.V.Patels case which we find is a reasoned opinion.
16. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri R.V. Sinha. As seen from the sequence of events in this case, this is the third round of litigation by the Applicant. In the first OA No. 1768/2003 filed by him, his prayer was to quash and set aside the charge memo dated 13.12.2002. The sole ground taken by the Applicant in the said OA was that the charge memo was issued to him belatedly after 14 years of the occurrence of the alleged incident and without an explanation for the said inordinate delay. This Tribunal disposed of the said OA vide its order dated 11.11.2003 with the direction to the Applicant to take up this matter by filing an appropriate representation to the concerned authority who may, if such representation is made, pass an appropriate order thereon. After making a representation as aforesaid and on its rejection, the Applicant again filed OA No.1174/2005 seeking the same direction, i.e., to quash and set aside the aforesaid charge memo. The first ground taken by the Applicant in the said OA was again inordinate and unexplained delay in issuing the charge memo after 14 years from the occurrence of the allegations contained therein. However, after considering the totality of the facts and circumstances of the case, this Tribunal came to the conclusion that there was no such inordinate and unexplained delay in initiating disciplinary proceedings against the Applicant. The other argument of the Applicant in the said OA was that the Applicant was exercising quasi judicial powers under Section 18 of the Sales Tax Act while issuing the statutory Sales Tax Forms and, therefore, disciplinary action against him was unwarranted and it should not be allowed to continue. After detailed discussion of the issue, the Tribunal held that the aforesaid ground was also not tenable. Yet another ground adduced by the Applicant in the said OA was that after the service of the memo in 1996, he was given two promotions, firstly, he was regualrised in the grade of DANICS in August 2001 and again he was granted higher scale of DANICS in November 2001. Therefore, the respondent should deemed to have condoned the misconduct of the applicant in terms of the judgment in Anudhraj Singh Vs. State of M.P. AIR 1967 MP 284 wherein it was observed, if the lapses or misconduct is one which is known to the party before the person is promoted and not one when comes to light subsequent to the promotion, and if the authority concerned knowing of this lapse or misconduct promotes the civil servant without any reservation then it must be taken that the lapse or misconduct has been condoned. On this ground, this Tribunal held that it was premature for it to render any decision. Accordingly, the said OA was also dismissed leaving it open to the applicant to raise the aforesaid ground during the disciplinary proceedings and, if necessary, before the higher authorities and before this the Tribunal later. Similarly, other grounds like arbitrariness of the disciplinary action or that the charge sheet was not based on any evidence or that the conduct was to be adjudged in the context of the situation and the circumstances or that the charge sheet did not point out to any rule or statutory provision barring issuance of forms to the dealers etc. were also allowed to be urged in the disciplinary proceedings at appropriate stages. The High Court, vide its order dated 25.08.2005 in W.P. ( C) No. 12808/2005 agreed with this Tribunal only with regard to its findings with regard to the question of delay in initiation of the departmental proceedings and not with the other grounds. The High Court has, therefore, directed the enquiry report to be recalled and to continue with the proceedings from the stage of cross-examination of the prosecution witnesses. The Respondents have complied with the aforesaid directions and thereafter, the Disciplinary Authority passed the impugned order dated 29.11.2011 imposing the penalty of withholding of 50% of the monthly pension otherwise admissible to the Applicant on a permanent basis and permanently withholding the gratuity admissible to him.
17. Now, in view of the aforesaid orders of this Tribunal in OA No.1174/2005 (supra), the Applicant cannot raise the question of delay in the initiation of the disciplinary proceedings against him, anymore. However, we shall consider other grounds adduced by the Applicant in this OA. He has again reiterated that the allegation contained in the charge memo squarely falls within the domain of his judicial function and if any errors are committed during the discharge of his duties, this cannot be construed as misconduct. In this regard, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in the case of Zunjar Rao Bhikaji Nagarkar (supra). This aspect has already been considered by this Tribunal in the earlier OA No.1174/2005 decided on 05.04.2005. This Tribunal has held clearly that issuance of Statutory Sales Tax Forms is not a quasi-judicial function and the quasi-judicial function begins only when the Sales Tax authority considers the question of imposing condition of security or its enhancement for grant of Registration Certificate or its continuation. But the allegation against the Applicant is that he had failed to get them verified so that, if need be, provision of Section 18 of Sales Tax Act was invoked by appropriate authority for securing the Tax revenue and custody and use of the statutory forms issued to him. Invocation of power given by Section 18 was not a condition precedent to the issue of Sales Tax forms. The accusation against the applicant is about not discharging duty while issuing ST forms and not that while exercising powers under Section 18 he had misconducted himself. Therefore, the argument of the learned counsel for the applicant that the applicant was discharging the quasi judicial function while issuing ST forms which cannot be called in question in a departmental proceedings does not have any merit. As argued by the learned counsel for the Respondents, the Apex Court in K.K. Dhawans case (supra) has held clearly that the officer, who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Therefore, the claim of immunity from department proceedings made by the Applicant cannot be accepted.
18. Further, the Applicant has alleged discrimination and arbitrariness inasmuch as that the Applicant has issued ST Forms to M/s Pilco System on 28.09.1987 and 29.07.1988 (100 forms) and ST-35 forms issued to the said dealer on 29.07.1988, 19.08.1988 and 30.09.1988 (195) were on the orders of the ten STO viz. Shri P.R. Meena of that ward and not on his orders. He has also stated that the Respondents have initially charge sheeted him. He has also stated that later on the charge against Shri Meena was dropped. Therefore, the charge leveled against him was actuated by malice and arbitrariness. The Respondents in their reply have dispelled the aforesaid contention. In our considered view also, whether Shri Meena was charge sheeted or not and the charge against him was dropped later, is not a valid ground for not issuing the charge sheet to the Applicant.
19. The other ground taken by the Applicant is that in violation of the principles of natural justice, the Disciplinary Authority has never communicated the UPSC advice prior to the passing of the impugned penalty order and the Applicant was not given any opportunity to submit his representation against the said advice which was adverse to him. In this regard, the judgment of the Apex Court in State Bank of India and Others Vs. D.C. Aggarwal and Another AIR 1993 SC 1197 in the context of non-supply of CVC report prior to the order of the Disciplinary Authority is quite relevant. The court 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.
It is seen that in S.N. Narula Vs. Union of India and Others 2011 (4) SCC 591 decided on 30.01.2004, the Apex Court has again held that if the authorities do consult the UPSC and rely on its report for taking disciplinary action, then the principle 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. Any decision of the Disciplinary Authority contrary to that procedure is arbitrary and hence not sustainable. The relevant part of the said judgment is as under:-
6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in Paragraph 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.
Thereafter, the very same issue came up for consideration in Union of India & Another Vs. T.V. Patel 2007 (4) SCC 785. In the said judgment, the Apex Court took a different view and held that supplying a copy of the UPSCs report along with the Disciplinary Authoritys order is sufficient. The relevant part of the said judgment is as under:-
17. As already noticed, Rule 32 of the Rules deals with the supply of a copy of Commision's advice. Rules as read as it is mandatory in character. Rule contemplates that whenever a Commission is consulted, as provided under the Rules, a copy of the advice of the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance shall be furnished to the Government servant along with a copy of the order passed in the case, by the authority making the order. Reading of the Rule would show that it contemplates two situations; if a copy of advice is tendered by the Commission, the same shall be furnished to the government servant along with a copy of the order passed in the case by the authority making the order. The second situation is that if a copy of the advice tendered by the Commission has not been accepted, a copy of which along with a brief statement of the reasons for such non-acceptance shall also be furnished to the government servant along with a copy of the order passed in the case, by the authority making the order. In our view, the language employed in Rule 32, namely "along with a copy of the order passed in the case, by the authority making the order" would mean the final order passed by the authority imposing penalty on the delinquent government servant.
18. Article 320 of the Constitution deals with the functions of Public Service Commission and provides that it shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
19. Article 320(3)(c ) reads:-
320.(3)(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
20. A Constitution Bench of this Court in the case of State of U.P. vs Manbodhan Lal Srivastava, 1958 SCR 533, considered the question as to whether the consultation of the Commission under Article 320(3)(c) is mandatory and binding on the appropriate authority.
21. The arguments that the non-compliance of Article 320(3)(c) vitiates the order passed by the appropriate authority have been repelled by the Court at SCR.pp 543-544:-
"7. Perhaps, because of the use of word "shall" in several parts of Art. 320, the High Court was led to assume that the provisions of Art. 320(3)(c) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. In the first place, the proviso to Art. 320, itself, contemplates that the President or the Governor, as the case may be, "may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted."
The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. If the provisions of Art. 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary.
If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted.
Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services.
It is, therefore, 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.
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but, with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed.
If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government.
9. Thirdly, Art. 320 or the other articles in Chapter II of Part XIV of the Constitution deal with the constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a public servant.
Chapter II containing Art. 320 does not, in terms, confer any rights or privileges on an individual public servant nor any constitutional guarantee of the nature contained in Chapter I of that Part, particularly Art. 311. Article 311, therefore, is not, in any way, controlled by the provisions of Chapter II of Part XIV, with particular reference to Art. 320."
Finally, at page SCR p.547 it was held as under: (AIR p.918, para 12) "12. We have already indicated that Art. 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ.
On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has hot been contended at any stage that they had not been complied with - he has no remedy against any irregularity that the State Government may have committed.
Unless, it can be held, and we are not prepared to hold, that Art. 320(3)(c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer."
22. The decision of the Constitution Bench in Srivastava (supra) was reiterated by a three Judge Bench of this Court in the case of Ram Gopal Chaturvedi vs. State of Madhya Pradesh, 1969 (2) SCC 240, it was held in paragraph 7 of the judgment as under:- (SCC p.243) "7. It was argued that the impugned order was invalid as it was passed without consulting the State Public Service Commission under Article 320(3)(c) of the Constitution. There is no merit in this contention. The case of State of U.P. v. M.L. Srivastava 1958 SCR 533 decided that the provisions of Article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action."
23. Counsel for the respondent contended that non-supply of a copy of the advice tendered by the UPSC before the final order was passed deprived the delinquent officer of making an effective representation and therefore it vitiates the order. To support his contention he referred to the decision of this Court rendered in the case of State Bank of India v. D.C. Aggarwal, (1993) 1 SCC 13, where this Court held that the disciplinary authority, while imposing punishment, major or minor, cannot act on material which is neither supplied nor shown to the delinquent. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, cannot be countenanced. Procedural fairness is as much essence of right and liberty as the substantive law itself.
24. He also referred to the decision of this Court in the case of Managing Director, ECIL, Hyderabad vs. B.Karunakar, (1993) 4 SCC 727, where this Court dealt with the non-furnishing of the inquiry report to the delinquent officer. The facts of the aforesaid decision are distinguishable from the facts of the case at hand. The aforesaid decisions are not relevant for the purpose of adjudication of the case at hand.
25. In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.
Thereafter, the said issue came up before the High Court of Delhi in the case of Union of India Vs. Mr. Lalit Kumar W.P. ) 11396/2005. While deciding the said petition on 10.03.2011, the High Court took note of the aforesaid judgment in T.V. Patels case (supra) and held that the finding of the Tribunal to the extent of non-serving of copies of advice of UPSC and recommendations of CVC to the Respondents is not sustainable in the eye of law. Immediately thereafter, the issue came up for consideration before the Apex Court again in the case of S.K. Kapoor (supra) decided on 16.3.2011, the relevant part of which has already been extracted in this order elsewhere. The Apex Court considered both the judgments in S.N. Narulas case (supra) and T.V. Patels case (supra) but its justification was that both the aforesaid judgments were those of co-ordinate Benches and in such a situation, the earlier judgment has to be followed. However, the High Court of Delhi has again considered the issue in the case of Union of India and Another Vs. Shri Biswabijoyee Panigarihi and Another WPC No.4539/2012 and connected cases decided on 15.07.2013 held that it is not necessary that the advice of the UPSC be given to the delinquent before Disciplinary Authority passing its order in the disciplinary proceedings. The relevant part of the said order is as under:-
2. The common point in all the three writ petitions pertains to whether advice obtained from UPSC by the Competent Authority before levying penalty was required to be supplied to the charged officer when report of the Inquiry Officer was forwarded to him and not along with the order levying penalty.
3. In a short decision, which incidentally does not note Rule 32 of the CCS (CCA) Rules, 1965, decided on January 30, 2004, but reported in the year 2011, as (2011) 4 SCC 591 S.N.Narula Vs. UOI & Ors. a two Judge Bench of the Supreme Court held that the advisory opinion obtained from UPSC had to be communicated to the charged officer before the Disciplinary Authority inflicted the punishment and not after inflicting the punishment. In other words the requirement would be to forward advice received from UPSC along with the report of the inquiry while seeking response of the charged officer to the report of the Inquiry Officer.
4. In a reasoned decision, taking note of Rule 32 of the CCS (CCA) Rules, 1965 and noting the decision reported as AIR 1957 SC 912 State of U.P. Vs. Manbodhan Lal Srivastava which considered Article 320 of the Constitution of India, reported as (2007) 4 SCC 785 UOI & Anr. Vs. T.V.Patel, a two Judge Bench of the Supreme Court held that advice received from UPSC was not to be sent to the charged officer when report of the Inquiry Officer was forwarded for his response and that as per the mandate of Rule 32 of the CCS (CCA) Pension, 1965 it would be sufficient compliance with law that the advice received from UPSC was sent along with a copy of the order levying penalty passed by the Competent Authority.
5. Probably for the reason the earlier decision in S.N.Narulas case (supra) was not published when T.V.Patels case was decided on April 19, 2007 the attention of the Bench which decided T.V.Patels case was not drawn to the decision in S.N.Narulas case.
6. Deciding Civil Appeal No.5341/2006 on March 16, 2011, an opinion reported as (2011) 4 SCC 589 UOI & Ors. Vs. S.K.Kapoor, noting the conflicting destinations reached by two co-ordinate Benches of the Supreme Court in S.N.Narulas case (supra) and T.V.Patels case (supra) a two Judge Bench of the Supreme Court observed that it being well-settled that if a subsequent Co-ordinate Bench of equal strength wants to differ with a view taken earlier on it has to refer the matter to a Larger Bench otherwise theprior decision of the Co-ordinate Bench has to be treated as binding on subsequent Bench of equal strength.
7. Only on aforesaid reasoning in S.K.Kapoors case (supra), law declared in T.V.Patels case was not followed.
8. In the three impugned decisions the Tribunal has applied the law declared in S.N.Narulas case.
9. Rule 32 of the CCS (CCA) Rules, 1965 which deals with supply of copy of advice received from UPSC reads as under:-
32. Supply of copy of Commissions advice Whenever the Commission is consulted as provided in these Rules, a copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the government servant concerned along with a copy of the order passed in the case by the authority making the order. XXX XXX XXX
18. It may not be the province of a High Court to comment on the judgment of the Supreme Court which are entitled to respect and in the interest of justice it would be the duty of the High Court to respectfully follow a law declared by the Supreme Court. But faced with conflicting judgments the correct approach by a High Court would be to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgments.
19. Now, the constitutional vision pertaining to the role of UPSC is to confer upon it an advisory jurisdiction pertaining to disciplinary matters, which is evidenced from the use of the expression may in sub-Article 3 of Article 320 of the Constitution of India. Opinions by UPSC on disciplinary matters are not binding on the Disciplinary Authority which has to apply its own independent mind as was explained in T.V.Patels case (supra). Now, logic and commonsense guides us that where an opinion has to be sought after Inquiry Officer records evidence and pens a report it would better serve the purpose of the person likely to be affected by such an opinion i.e. the charged officer, if before seeking the opinion his version is obtained and placed before the opinion maker. This would also be a better compliance with the principles of natural justice. That natural justice demands that it be made known to a person whose interest is in issue as to what is the material which would be used by the decision maker would not be attracted in a situation of the kind i.e. the decision maker who is seized with the report of an Inquiry Officer seeks advice of UPSC and the said advice sought is on the report of the Inquiry Officer without the response of the charged officer thereon.
20. This would be our additional reason to go by the law declared by the Supreme Court in T.V.Patels case which we find is a reasoned opinion.
20. In view of the aforesaid judgment of the Honble High Court, there is no need for us to delve further in the matter, in this case.
21. However, we find merit in the contention of the Applicant that the Disciplinary Authority had no case that charge leveled against him was grave misconduct or negligence and the Enquiry Officer has also not found him guilty in the said manner. Therefore, his submission was that the Disciplinary Authority should not have continued the disciplinary proceedings against him under sub-rule (1) of Rule 9 of the CCS (Pension) Rules, 1972 which reads as under:-
9(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
In this regard, the Applicant has rightly relied upon the judgment of the Apex Court in D.V. Kapoors case (supra) wherein it has been held that As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60/-. In T.P. Venugopals case (supra) also, the High Court of Delhi has held that The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him. As held by the co-ordinate Bench of this Tribunal in B.P. Mahaurs case (supra) wherein the aforesaid judgment of the Apex Court in D.V. Kapoors case (supra) was relied upon, the charge and the conclusion regarding the charge were not founded on facts.
22. It is an admitted fact that the Applicant was charge sheeted on 13.12.2002 and he retired from service on 31.12.2002 and the disciplinary proceedings continued under Rule 9(2)(a) of the CCS (Pension) Rules, 1972. The charge against the Applicant was that while he was functioning as ASTO in Ward 23, he committed misconduct in as much as he had issued 260 ST-I forms and 355 ST-35 forms to M/s Pilco Systems, and 25 ST-I and 40 ST-35 to M/s Krishna Stores in quick succession. He failed to keep a check over the nefarious activities of both the dealers by getting the transactions of the dealers (as shown in ST-II A/cs) verified through lower functionaries. Shri Singh also failed to invoke provisions of Sec 18 of DST Act, 1976 by enhancing the sureties of both the dealers in view of huge purchases indicated in ST-II A/cs furnished by them. Loss of revenue caused to the Sales Tax Department by M/s Pilco systems & M/s Krishna Stores are to the tune of Rs.30 crores and Rs.29 crores respectively. The conclusion arrived at by the Enquiry Officer in his report is that the charge against Shri V.P. Singh exhibiting negligence, lack of integrity in issuing statutory forms to both the dealers in quick succession causing heavy loss of revenue to the Government is proved. In fact, the specific allegation against the Applicant was that the loss of Rs.29 crores was caused by the Applicant. However, the findings was that charge against the Applicant exhibiting negligence, lack of integrity in issuing statutory forms to both the dealers in quick succession causing heavy loss of revenue to the Government is proved. At least, there should have been some evidence to that effect from any of the prosecution witnesses. However, in the entire report there is no evidence on behalf of the witnesses that any financial loss had occurred. Thus, when the crux of the charge was that on account of misconduct or negligence of the Applicant there was a loss of Rs.29 crores and if the same was not proved, it cannot be concluded that the charge has been proved. Even the Disciplinary Authority has also stated that the charge proved was only partly and the exact revenue loss could not be accounted. Therefore, in absence of any allegation that the Applicant was guilty of grave misconduct or negligence during the period of service, and if the President has not found to that extent as provided in Rule 9(1) of the CCS Pension) Rules, 1972, no pension or gratuity of the Applicant could have been withheld.
23. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the impugned order dated 29.11.2011, charge sheet dated 13.12.2002, Inquiry Officers report dated 29.11.2005. The respondents shall release the entire withheld monthly pension, gratuity and any other pensionary benefits to the Applicant with interest at GPF rate. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
24. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh