Central Administrative Tribunal - Delhi
Dr. A.K. Singh vs Union Of India & Ors. Through on 11 November, 2013
Central Administrative Tribunal
Principal Bench
O.A. No.2790/2012
Order reserved on: 11.02.2013
Order pronounced on: 11.11.2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. V. Ajay Kumar, Member (J)
1. Dr. A.K. Singh, S/o Late Shri L.P. Singh,
R/o A-32, DDA (SFS), Saket,
New Delhi-110017.
2. Dr. Vijay Kumar, S/o Shri D.C. Ahir,
R/o A-2/30, Janakpuri, New Delhi-58.
3. Dr. R.K. Yadav, S/o late Shri S.P. Yadav,
R/o H-19/86, Sector-7, Rohini,
Delhi-110085.
4. Shri Ved Singh Kundu,
S/o Shri Fateh Singh Kundu,
R/o H-26/475, West Ram Nagar, Sonepat.
-Applicants
(By Advocate: Shri D.S. Mahendru)
Versus
Union of India & Ors. through:
1. Secretary, Ministry of Health and Family Welfare,
Govt. of India, Nirman Bhawan,
New Delhi-110011.
2. The Director General,
Health Services,
Ministry of Health and Family Welfare,
Nirman Bhawan, New Delhi-110011.
3. The Secretary,
Union Public Service Commission,
Shahjahan Road, New Delhi-110003.
-Respondents
(By Advocate: Shri T.C. Gupta)
O R D E R
Mr. Sudhir Kumar, Member (A):
In this case four applicants are before us, three of them being Doctors, and they are aggrieved by the impugned order dated 18.04.2012 (Annexure A-1) through which the Under Secretary of the Vigilance Section of the Ministry of Health and Family Welfare, Department of Health and Family Welfare, Nirman Bhawan, New Delhi, has signed an order, by order and in the name of the President of India, to hold a fresh de-novo departmental enquiry against them, and the order states as follows:-
No.C.14015/01/1999-Vig.
Government of India Ministry of Health & Family Welfare, (Department of Health & Family Welfare) Nirman Bhawan, New Delhi Dated: 18 April, 2012.
Whereas an inquiry under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, was held against the following officers:
i. Dr. Vijay Kumar, the then Resident Medical Officer (RMO), Central Jail Hospital, Tihar, New Delhi.
ii. Dr. Sunil Kakkar, the then Store Purchase Officer (SPO), Central Jail Hospital, Tihar, New Delhi.
iii. Rtd. Shri Vishwa Vibhuti, the then ADG (Stores), Govt. Medical Store Depot, New Delhi.
iv. Dr. A.K. Singh, the then Depot Manager, Govt. Medical Store Depot, New Delhi.
v. Shri R.K.Yadav, Asst. Depot Manager, Govt. Medical Store Depot, New Delhi.
vi. Shri P.B.Mandal, the then Asstt. Depot Managers, Medical Store Depot, New Delhi.
vii. Shri V.S.Kundu, the then Asstt. Store Superintendent and In-Charge of issue Section of Government Medical Stores Depot, New Delhi.
WHEREAS the Inquiry officer in the said case, Dr. R.N. Salhan, Addl. Director General, Dte. GHS had, on conclusion of Inquiry submitted his Report, which, after examination, was referred to Union Public Service Commission for seeking advice of the quantum of penalty to be imposed on the Charged Officers.
WHEREAS Union Public Service Commission, after examining the Inquiry Officers Report/case records has observed that there had been some procedural deficiencies during the Inquiry and unless the procedural deficiencies are rectified, the Commission cannot furnish its advice (Copy of UPSCs letter enclosed).
WHEREAS Disciplinary Authority after considering the advice of Union Public Service Commission, is of the view that a de-novo enquiry needs to be conducted against the above said officers for rectifying the procedural deficiencies/shortcomings as pointed out by Union Public Service Commission.
WHEREAS Disciplinary Authority after considering the advice of Union Public Service Commission, is of the view that a de-novo enquiry needs to be conducted against the above said officers for rectifying the procedural deficiencies/shortcomings as pointed out by Union Public Service Commission.
AND WHEREAS the President considers that for rectifying the said procedural deficiencies, an Inquiry Authority has to be appointed against to inquire into the charges framed against the above said Charged Officers.
NOW, THEREFORE, the President, in exercise of the powers conferred by sub-rule (2) of the said rule, hereby appoints Dr. D.M.Thorat, ADG (DMT), Dte. GHS, Nirman Bhavan, New Delhi as Inquiring Authority to inquire into the charges framed against the above said officers.
(By order and in the name of the President).
(Lalit Kapoor) Under Secretary to the Government of India.
Dr. D.M.Thorat, ADG (DMT), Dte. GHS, Nirman Bhavan, New Delhi.
2. An Enquiry Officer had been appointed through this order itself for conducting the de-novo enquiry. The four applicants before us have, however, approached this Tribunal for seeking similar benefits as have been extended to Shri P.B. Mondal, whose name appears at Sl. No.VI in the list in the above order, who had filed an OA No.101/2011 before the Guwahati Bench of the Tribunal, seeking to quash and set aside the original charge sheet itself, issued earlier on 04.06.1999, ordering for a disciplinary enquiry to be conducted jointly against all the 07, on the ground that in spite of a lapse of 12 years, the respondents have failed to conclude the said disciplinary proceedings. The Guwahati Bench of this Tribunal had, after hearing the parties, permitted the respondents to complete the disciplinary proceedings against the applicants before it within a period of one month from the date of receipt of a copy of its order. It had also been made clear that on their failure to abide by the time frame fixed, the disciplinary proceedings shall stand quashed ipso-facto. The applicants had produced a copy of that Guwahati Bench order of the Tribunal as Annexure A-2.
3. The respondents had then filed a Miscellaneous Petition No.15/2012 before the Guwahati Bench of the Tribunal seeking extension of time for a further period of six months to comply with the order dated 04.11.2011 but through its order dated 02.02.2010, the Guwahati Bench had declined to grant such extension of time to the respondents.
4. Another O.A. had been filed before the Guwahati Bench by the same officer Shri P.B. Mondal in OA No.06/2012, seeking a direction to the respondents to open the sealed cover for grant of benefit of ACP Scheme to him, as the disciplinary proceedings against the applicant before the Guwahati Bench had been rendered non-est by virtue of the order dated 02.02.2012. That O.A. also came to be decided by the Guwahati Bench of this Tribunal on 10.02.2012, directing that since the disciplinary proceedings itself stood quashed, and no charge remained against the applicant, the sealed cover in respect of the applicant before the Bench ought to be opened, and benefit of ACP, with all consequential benefits as admissible under law, ought to be provided.
5. The respondents had thereafter filed two Writ Petitions before the Guwahati High Court, bearing No. 1752/2012 and 2780/2012, challenging the two orders passed by the Guwahati Bench of the Tribunal, on 02.02.2012 in M.P. No.15/2012 arising out of OA No.101/2011, as well as the Order dated 10.02.2012 passed in OA No.06/2012. The Honble Guwahati High Court delivered its judgment dated 29.06.2012 in the abovementioned two connected Writ Petitions by stating as follows:-
.On a perusal of the Judgment and order dated 04/11/2011 passed by the Learned Tribunal in O.A. No.101/2011 and the other materials on record including the letter dated 21/06/2012, we are of the view that the petitioners are not entitled to further extension of time vis-`-vis the disciplinary proceedings against the respondent. The order dated 02/02/2012 of the Learned Tribunal passed in MP No.15/2012, therefore, does not merit any interference.
In view of the above determination, having regard to the pleaded facts and the documents on record, we see no sufficient, convincing or cogent reason to interfere with the Judgment and Order dated 10/02/2012 passed in OA No.06/2012 as well. As the disciplinary proceedings against the respondent has been rendered non-est as on date, the petitioners are obliged in law to open the sealed cover containing recommendations on the issue of Assured Career Progression vis-`-vis him. The operative direction contained in the Judgment and Order dated 10/02/2012 as aforementioned is, thus, upheld.
The petitions, therefore, lack in substance and are dismissed. No costs.
6. The applicants before us have mentioned that their cases too are similar to that of Shri P.B. Mondal, since a common charge sheet dated 04.06.1999 had been issued by the respondents, and hence the judgment passed by the Honble Guwahati High Court ought to apply to the applicants herein as well.
7. It would be worthwhile to mention at this stage the individual cases of the applicants who have approached this Principal Bench of the Tribunal. Applicant No.1 retired as Deputy Assistant General, Medical Store Organization, Directorate General of Health Services in the Ministry of Health and Family Welfare. The charge memo dated 04.06.1999 issued to him related to his alleged misconduct during the years 1993-94 and 1994-95, in his the then capacity as Depot Manager, Government Medical Store Depot, (GMSD, in short), New Delhi.
8. Applicant No.2, covered by the same charge memo dated 04.06.1999, was working as Chief Medical Officer at CGHS Dispensary, Hari Nagar, and was charged with alleged misconduct during the year 1994-1995 in his the then capacity of Resident Medical officer (RMO, in short), Central Jail Hospital Tihar, New Delhi.
9. Applicant No.3 before us was working as Assistant Depot Manager in Govt. Medical Store Depot (GMSD, in short), while the applicant No.4 was working as Depot Superintendent in GMSD. All four of the applicants before us were covered by the aforementioned common charge sheet dated 04.06.1999. The case against the four applicants before us, and the three others, whose names have been mentioned in Annexure A-1 as reproduced above, had started with the registration of a Preliminary Enquiry by the Anti Corruption Branch (ACB, in short) of the Central Bureau of Investigation (CBI, in short). After their investigations, when the CBI came to the conclusion that there was insufficient evidence to launch criminal prosecution against the applicants before us and others, the CBI had referred the same for departmental action as may be deemed fit.
10. The allegation against the applicant No.1 was that he had supplied medicines to Central Jail Hospital (CJH, in short), Tihar Jail, against its annual and supplementary indents for the year 1994-95, without sanction of these indents, and had allowed the supply of the medicines to CJH, Tihar, during the years 1993-94 and 1994-95 against improper indents, and had failed to follow the procedure prescribed for purchase of medicines against the indents received from CJH, Tihar, and had not maintained even the demand register properly.
11. The allegation against the applicant No.2, whose name appeared at Sl. No.1 in the impugned Annexure A-1, was that during the year 1994-95, in connivance with Dr. Sunil Kakkar, the then Store Purchase Officer (SPO, in short) CJH, Tihar, whose name appeared at Sl. No.2 of the impugned order, had prepared and processed annual indents and supplementary indents without calculating the requirements of medicines in the Central Jail properly, and had recommended the same for Rs.50 lakhs, whereas medicines worth Rs.1,11,97,908/- had already been received even upto March 1994, and that no budget sanction or administrative sanction was obtained for such supplementary indents. The further charge against the applicants No. 1 & 2 was that they had failed to check the SPO, who gave a certificate of having physically checked the medicines received from the GMSD, and had given a certificate on the issue vouchers that the medicines have been received and entered in the stock register as per indents, but actually the medicines supplied were in excess of the indents, and had been supplied even without indents, and in doing so, they had failed to exercise proper supervision over their subordinate staff, and had allowed to receive medicines during the year 1993-94 even against the annual and supplementary indents for the next year, i.e. 1994-95, placed on GMSD, and had failed to check the activities of the store keeper, or to check the stock register properly, and had failed to obtain the budget sanction of the supplementary indents for the year 1994-95, and purchased the medicines without proper sanction of the Competent Authority.
12. The allegation against the applicant No.3, whose name appeared at Sl. No.5 in the impugned order, was that he supplied medicines to CJH, which were either not indented, or were in excess of the indents, in violation of GMSD manual, and that he had failed to exercise proper supervision over the subordinates, and that he did not check the process of annual and supplementary indents of CJH, and had allowed to issue medicines during the year 1993-94 against the indent for the year 1994-95.
13. As mentioned above also, the first round of disciplinary enquiry against the applicants had started through issuance of Charge Memo and Articles of Charge dated 04.06.1999 (Annexures A-6, A-7, A-8 and A-9) annexed to the present O.A. The brief of the Presenting Officer Shri Lalit Kaushik, Sub-Inspector, was forwarded to the seven persons named at Annexure A-1 through letter dated 27.12.2004 (Annexure A-10). The opening paragraph of this brief of the Presenting Officer in the departmental enquiry stated as follows:-
In the year 1997, a Preliminary Enquiry No.10 (A)/97-Delhi was registered on 12.8.97 by the Anti Corruption Branch of CBI, New Delhi. After completion of enquiry, RDA for Major Penalty proceedings was recommended against the following suspect officers of Central Jail Hospital, Tihar, New Delhi and GMSD/New Delhi who committed gross misconduct while functioning in their respective capacity during the year 1993-94 and 1994-95. On the basis of recommendations of CBI, a charge sheet dated 4.6.99 for initiating RDA for Major Penalty proceedings was served against the charged officers by the M/o Health, New Delhi and Dr. RN Salhan, presently working as MS in Safdarjung Hospital, New Delhi conducted the enquiry proceedings being the Inquiry Officer and undersigned presented the case before the Inquiring Authority on behalf of CBI. The allegations leveled against each charged officer in the charge memo are mentioned below against each charged officer. (Emphasis supplied).
14. He had thereafter discussed the allegations against each of the 7 concerned persons and then recorded on internal page 4 of his report as follows:-
During the enquiry proceedings, a total number of 25 cited witnesses were examined. On the request of PO, Shri Azad Singh, the then Inspector, CBI, ACB, New Delhi who conducted enquiry in PE.10(A)/97-Delhi was also examined. No defence witness was produced by the C.Os. during the enquiry proceedings. During enquiry proceedings, the statement of following 26 witnesses was recorded against each, a brief of their deposition has been mentioned below.
(Emphasis supplied).
15. Thereafter he had discussed the examination of witnesses PW-1 to PW-25 in paragraphs (i) to (xxv). In Paragraph (xxvi) of his report, he had included the examination of Shri Azad Singh, the then Inspector, CBI, ACB, New Delhi, and had thereafter proceeded to record his findings as follows:-
xxvi) Shri Azad Singh, the then Inspector,CBI ACB, New Delhi:-
He was examined on 13.9.2004 and stated that he was posted as Inspector in CBI/ACB, New Delhi during 1992 to Nov.2002 on deputation basis from Delhi Police. During 1997, an inquiry in PE.10(A)/97-Delhi dated 12.8.97 was entrusted to him by the then SP/CBI Shri Anil Kumar vide Registration Report (Ex.P-1) on which he identified the signatures of Shri Anil Kumar, SP/CBI. During inquiry, documents as mentioned in the list of cited documents were collected by him from the concerned department/offices and statement of witnesses were recorded as mentioned in the list of cited witnesses under his signatures which I identify. He also identified his signatures over all the cited receipt and seizure mentioned in the list of documents vide which the connected documents were collected/seized by him during the above said CBI enquiry from the concerned department/offices. He also identified exhibit P-21 and P-38 which was prepared on the basis of available records and after discussion with the concerned officials/witnesses. He also stated about the findings of the above said CBI enquiry and the allegations proved during this enquiry against each and every charges officer.
During enquiry proceedings, no defence witness was produced by any charged officer.
On the basis of statement of above said cited witnesses and cited documents seized during the CBI enquiry, charges against each and every charged officer are proved beyond doubt.
Submitted.
(Lalit Kaushik) PO& SI /CBI/ACB/New Delhi (Emphasis supplied).
16. The enquiry report of the Enquiry Officer appointed by the Disciplinary Authority was submitted through Annexure A-11 dated 25.11.2005, signed by Dr. R.N. Salhan, Additional D.G & Medical Superintendent & Inquiry Officer, New Delhi, addressed to the Secretary, Ministry of Health and Family Welfare, New Delhi, along with his enquiry report running into 21 pages, and Annexures, along with the Index of Annexures thereto, by stating as follows:-
Office of the Medical Superintendent Safdarjng Hospital New Delhi-110029 CONFIDENTIAL 12-4(270)2003-S.III(MS) dated:25.11.2005 To The Secretary, Ministry of Health & F.W., Nirman Bhavan, New Delhi.
(Kind Attn: Sh. Vineet Chawdhry,Joint Secretary &CVO) Sub: Inquiry Report into the charges framed against Dr. Vijay Kumar & Others under Rule 14 of the Central Civil Services (CCA) Rules, 1965- Reg.
Ref.: Order No. C.14015/1/99-Vig. Dated 27.2.2001 From R. Mohan Kumar, Under Secretary, Govt. of India, Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi.
Sir, The undersigned is directed to refer to Ministry of Health & F.W. Order No.C.14015/1/99-Vig. Dated 27.2.2001 on the above subject, vide which the undersigned was appointed as Inquiry Officer to inquire into the charges framed against Dr. Vijay Kumar and others and to forward herewith the Inquiry Report (containing 21 pages) along with enclosures for necessary action.
Thanking you, Yours faithfully, (DR. R.N.SALHAN) Addl.D.G.&Medical Superintendent & Inquiry Officer Enclosures:
1. Inquiry Report (21 pages) alongwith Annexure as shown in the Index of Annexures enclosed.
(Emphasis supplied)
17. The conclusions arrived at by the Enquiry Officer were as follows:-
Conclusion:
In the briefs submitted by charged officers, in reply to the findings of the P.O., the COs have confirmed irregularities and non-compliance of GMSD manual as well as the charges leveled in the common proceedings. However, they have stated that the irregularities have been committed by their juniors, for which they are not responsible.
The P.O. in his report has affirmed that none of the COs produced any evidence to prove anything contrary to the articles of charges against the officers involved in this common proceeding. All the articles of charges against all the officers have been proved.
Though, this is a common proceeding against 7 officers, every effort was made by the I.O. and P.O. to provide reasonable opportunity to the COs and their Defence Assistants to substantiate their view points and to defend their stand. It is concluded that:
. There are laid down procedures in the GMSD Manual for procurement of drugs. These have been detailed in para 159-170 of the manual. The norms laid down have not been followed in letter and spirit by MSD, as regards the procurement of drugs for Central Jail Hospital.
. Proper indents were not prepared and written instructions from the appropriate authorities for procurement of drugs were not taken.
. The officers passed on verbal orders for indenting and supply of drugs.
. The entire system did not even keep detailed records of distribution of drugs in the wards/patient.
. The supervisory staff failed to adhere to the norms of procurement and monitoring thereof.
. However, proper staffing at all levels is critically essential to maintain records. There has been poor staffing at CJH, Tihar, during the period under inquiry.
. The procurement of ayurvedic/homoeopathic drugs has not been taken into account, while conducting the preliminary inquiry and framing the charges.
. Since, there has been poor supervision, lack of maintenance of proper records and the indents and supplies were managed on verbal orders, the article of charges against each of the COs, stands proved.
. However, it is not possible to comment on any misappropriation because total recording system is wanting. While managing hospitals and emergencies, it is sometimes essential to keep extra stock of drugs and materials to tide over exigencies. Therefore, procurement of drugs/materials in excess of the budget may be justified and the inward claims cleared in the next annual budget, while keeping the full records and its justification for such procurement. This has been fairly proved by the witnesses and the available records, as detailed above.
. There is a dire need for SIU and looking at the entire system of procurement both at CJH as well as MSO to avoid such mismanagement and resultant system failure.
Sd/-
(Dr. R.N. SALHAN) Inquiry Officer/25.11.2005
18. It is apparent from Annexure A-12 that this enquiry report was then sent by the Department of Health to the Central Vigilance Commission (CVC, in short) through their ID Note No. C-14015/1/99-Vig. Vol. II dated 14.03.2006. In response to that, the Dy. Secretary, Central Vigilance Commission, replied through his Office Memorandum dated 19.04.2006 as follows:-
No.99/HFW/002/22465 Government of India Central Vigilance Commission Satarkta Bhawan, G.P.O, Complex, Block-A, INA, New Delhi-110023 Dated:19.04.2006 OFFICE MEMORANDUM Sub: PE 10(A)97-DLI dt. 12.8.97 against Sh. Vijay Kumar, the then RMO, Central Jail Hospital and others.
***** Department of Health may please refer to their ID Note No. C-14015/1/99-Vig. Vol.II dated 14.3.2006 on the subject cited above.
2. Considering the facts and circumstances of the case, and the facts that the gravity of misconduct on the part of all the charged officers has been fully established, the Commission would advise Ministry to impose a stiff major penalty against S/Shri DR. Vijay Kumar, the then RMO, Sunil Kakkar, the then SPO; Vishwa Vibhuti, the then ADG(Stores); Dr. A.K.Singh, the then Depot Manager; R.K. Yadav, Asstt. Depot Manager, P.B. Mandal, Asstt., Depot Manager and Sh. V.S.Kundu, the then Asstt. store Supdt.
Departments file/records are returned herewith.
Sd/-
(Vineet Mathur) Dy. Secretary Department of Health (Shri Vineet Choudhary, CVO) Nirman Bhavan, New Delhi.
Encl. As above.
19. The applicant No.1 before us thereafter represented to the Under Secretary (Vigilance), Ministry of Health & Family Welfare against the report of the Enquiry officer through a 09 page representation (Annexure A-13) dated 20.06.2006 with the prayer as follows:-
The Disciplinary Authority to disagree with the CVCs advice and drop the proceedings on the basis of the so called findings of the I.O., which lack all essentials.
20. A similar detailed representation dated 27.05.2006 running into 10 pages was addressed to the Secretary, Ministry of Health & Family Welfare by the applicant No.2 before us. The applicant No.3 before us also gave detailed 11 page representation dated 27.10.2006. The applicant No.4 before us also gave a 19 page representation dated 23.06.2006 addressed to the Under Secretary to the Govt. of India, Ministry of Health & Family Welfare, which has been produced as Annexure A-13/colly.
21. The applicants have submitted that firstly there was considerable delay initially in the issuance of the charge memo to the applicants, as the same was issued on 04.06.1999, though the events related to the years 1994-95 and 1994-95, while there was further inordinate delay in completing the enquiry, and the Enquiry Officers report was submitted only on 25.11.2005. They have, therefore, prayed that the entire disciplinary proceedings initiated against the applicants are liable to be quashed and set aside on the ground of delay only. They have also assailed that the actions of the respondents in having sought CVC advice, and the CVCs office having held the gravity of the misconduct on the part of the charged officers as proved, without any discussion or analysis of the enquiry report, and having issued the advise to impose a stiff major penalty upon the applicants by a cryptic order, as already reproduced above at Annexure A-12, as being against the principles of natural justice .
22. Since one of the charged officers in the same disciplinary enquiry, Shri P.B. Mondal, had approached the Guwahati Bench of the Tribunal, as already recounted above, the events at Guwahati had overtaken the case of the four applicants before us. When the applicants before us filed their OAs No. 857/2012, 858/2012 and 860/2012 before this Principal Bench of the Tribunal, along with some other aggrieved officers, praying for the similar relief as granted by the Guwahati Bench of this Tribunal, as discussed above, those three OAs were decided by a common judgment and order dated 15.03.2012, but the Coordinate Bench at the Principal Bench differed from the order passed by the Guwahati Bench, and did not quash the disciplinary proceedings on the same analogy, and passed the following orders at the admission stage itself:-
7. Without considering the merits of the cases, it will be just and proper to dispose of these Original Application by this common order directing the respondents to take a decision in the disciplinary proceedings pending against the applicants within a stipulated period. Hence, all the five Original Applications referred to above are disposed of at the admission stage directing the respondents /competent authority/disciplinary authority to take a decision in the disciplinary proceedings pending against the applicants within a period of one month from the date when the copy of this order is produced before the respondents. Applicants may produce a copy of this order before the respondents at the earliest.
Let a copy of the order be placed on the record of each above mentioned OAs.
23. The applicants before us are aggrieved that even after the above orders, instead of obeying the order passed by the Principal Bench of this Tribunal on 15.03.2012 (Annexure A-14), the respondents have actually passed the impugned orders dated 18.04.2012, whereby they have proposed to hold a de novo enquiry against the applicants and other officers, on the ground that the UPSC, after examining the records of the case, has observed that there have been some procedural deficiencies during the enquiry, which need to be rectified. The applicants before us have assailed the aforesaid order for de-novo enquiry to be illegal, arbitrary, and having been issued in colourable exercise of power, that too, on the advice of UPSC, before whom the matter was placed only for seeking advise on the quantum of punishment to be imposed upon the applicants in pursuance of the disciplinary proceedings already completed by the Enquiry Officers report dated 25.11.2005. They have also assailed such de novo enquiry now ordered to be against the spirit of the Honble Guwahati High Courts orders as cited above.
24. The applicants had, therefore, assailed the actions of the respondents on the ground that the actions taken by the respondents so far, in having issued a charge sheet on 04.06.1999 to them under Rule 14 of CCS (CCA) Rules, 1965, in respect of the alleged misconduct pertaining to the years 1993-94 and 1994-95, and having taken a lot of time in concluding the departmental enquiry with the submission of the Enquiry officers report on 25.11.2005, and not taking any decision on that report even after a lapse of 5 years thereafter till 2011, and submitted that the delay caused in completion of the disciplinary enquiry proceedings against the applicants is totally attributable to the respondents. They have also assailed the action of the UPSC by taking the ground that the constitutional function and duty assigned to UPSC is not to enquire into the nature of the allegations as alleged, and also not to go into the procedural lapses/infirmities in the conduct of the disciplinary enquiry, but is restricted only to the extent of advising the disciplinary authority regarding the quantum of punishment under the relevant provisions of the Rules, under which the disciplinary proceedings have been completed.
25. The applicants have further taken the ground that no rule expressly authorizes for taking a decision where the departmental proceedings already concluded could be dropped altogether, and thereafter de-novo proceedings re-started under Rule-14, as such powers are not specifically provided for in the Rules, and departmental proceedings already concluded are vitiated in their case, because no findings of individual gains, or misappropriation of public money, could be substantiated from any of the documents enclosed with the charge sheet, nor any such substantial evidence has been given by the IO in his report, and, therefore, without there being any findings of any misconduct, or moral turpitude, against the applicants, any such de-novo disciplinary proceedings could be nothing but merely an attempt for persecution of the applicants. The applicants have further taken the ground that in terms of the Office Order dated 28.2.2004 issued by the CVC, all the Disciplinary Authorities were already informed that the CVCs views in the matter of disciplinary proceedings, or affidavits to the Courts, should in no case imply that any decision has been taken under the influence of the Central Vigilance Commission, and, as the Commission is only an advisory body, it is for the Disciplinary Authority alone to apply its own mind, subsequent to obtaining the advice of the Commission, and to take a reasoned decision on each case. It was argued by the applicants that this guideline of the CVC has also not been followed in the instant case, as the impugned order specifically mentioned that after examining the IOs report, UPSC has observed that there have been some procedural deficiencies during the conduct of the earlier departmental enquiry, and unless the procedural deficiencies are rectified, the UPSC cannot furnish its advice. They had also taken the ground that such re-start of de-novo proceedings amounts to colourable exercise of power on the part of the respondents, and is against the law of equity, and principles of natural justice, because of which the applicants have been put to great mental agony and torture, which they have been facing, since the charges against them were framed in 1999.
26. The applicants have further taken the ground that the Honble Apex Court had in State of Punjab vs. Chaman Lal Goyal 1995 (2) SCC 507 held that the department has to be fair to its employees, and must investigate correctness or otherwise of the allegations against its employees before resorting to its departmental action, and should not rush to conduct a departmental enquiry. They have further taken the ground that the Honble Apex Court has in State of A.P. vs. N. Radhakishan 1998 (4) SCC 154 held that if the delay is unexplained, or prejudice to the employees is writ large on the face of it, these grounds alone would justify the disciplinary proceedings to be terminated. The applicants have further tried to take shelter behind the Honble Apex Court judgment in State of Assam and Another vs. J.N. Roy Biswas (1976) 1 SCC 234. In that case, a Govt. servant was found guilty after a due enquiry into the charges brought against him, and after considering his reply, no conclusive order was passed on the enquiry report either exonerating him, or imposing any punishment, but the departmental proceedings were reopened, and a de-novo enquiry was started. The Honble Guwahati High Court granted a writ of prohibition at the request of the aggrieved Government servant. The Honble Apex Court thereafter held that though the principle of double jeopardy was not attracted in this case, inasmuch as no previous punishment had been awarded to him, yet since the employee had been exculpated after an enquiry, it was not open to the disciplinary authorities to proceed against him in a fresh enquiry, because if he was actually guilty of some misconduct, he should have been punished at the conclusion of the earlier enquiry itself. Thereafter, lastly, the applicants before us have taken the ground that the Guwahati High Courts orders in the case of P.B. Mondal (supra), as already discussed above, should be applied in their case also, since the said Shri P.B. Mondal was also one of the seven persons included in the same common charge sheet, and as they are similarly situated with the said Shri P.B. Mondal, meting out two different results in respect of the common disciplinary enquiry, would result in defying the principles of natural justice. They had, therefore, prayed for the following reliefs:-
(i) allow the present OA with costs against the Respondents in terms of the order dated 29.6.2012 passed by the Honble Guwahati High Court in W.P.(C) No.1752/2012 and 2780/2012 titled Union of India & Ors. Vs. P.B.Mondal;
(ii) to quash and set aside the order dated 18.4.2012, along with charge memo dated 4.6.1999 and O.M. dated 19.4.2006;
(iii) direct the Respondents to grant all consequential benefits as well as ACP to the applicants w.e.f. the dates same become due to them;
(iv) direct the Respondents to grant interest @ 18% to the applicants on the amount of such arrears;
(v) pass such and further orders as this Honble Court may deem fit and proper in favour of the applicants and against the Respondents.
27. The respondents filed their counter reply on 04.02.2013, only after MA No. 3576/2012 had been moved on behalf of the applicants praying for advancement of the hearing of this case on the ground that their case is fully covered by the decision of coordinate Bench of this Tribunal at Guwahati, and also the Guwahati High Courts judgment.
28. In their counter reply, the respondents had taken the ground that the disciplinary proceedings against the applicants were based on preliminary enquiry conducted by the CBI, which had detected the alleged fund irregularities in ordering of medicines by Central Jail Hospital by the officials of the GMSD Delhi. It was submitted that during the financial year 1994-95 and onwards, the applicants had committed serious lapses in purchase/supply of medicines much more than the sanctioned budget, and had accepted supplies worth Rs.2.61 Crores against the much less sanctioned budget. It was submitted that the CBIs report was examined and referred to CVC for its first stage advice, and CVC had recommended for initiating major penalty proceedings against the charged officers. It was submitted that the applicants were then proceeded against under Rule-14 of the CCS (CCA) Rules, 1965, vide the above mentioned Memorandum dated 04.06.1999, already cited above, and on denial of charges by them, departmental enquiry was conducted, and the Enquiry Officer has in his report held that the Charged Officers had confirmed and accepted the irregularities in following the GMSD Manual. It was thereafter submitted that after due examination the enquiry report was referred to CVC for seeking 2nd stage advice in the matter, and the 2nd stage advice of the CVC recommended imposition of stiff major penalties on all the Charged officers. Thereafter, as per Rule-15 of the CCS (CCA) Rules, 1965, a copy of the IOs report, and a copy of the CVC 2nd Stage Advice, was sent to the co-accused officers, for enabling them for making any representation which they wish to make.
29. It was submitted that after considering the Enquiry Officers report, and the individual submissions of the charged officers concerned on the findings of the report of the Enquiry Officer, as well as the documents on record, and cross examination of the witnesses, delinquency was found on the part of the applicants, even though during the course of enquiry, it could not be substantiated that there was any loss to the state exchequer on account of excess/un-indented supply of medicines or drugs supplied nearing expiry, causing any loss to the indenter. Further, the respondents admitted that it could also not be corroborated that the medicines ordered for supply on slips were not incorporated in issue vouchers, or were not indented for. The respondents thereafter explained the practices prevailing in GMSD regarding issuance of indented drugs. Thereafter, they admitted that though any specific violation of GMSD Manual has not been brought out in the enquiry report, such violations were indeed made by the co-accused as testified by the witnesses produced during the enquiry. It was submitted that the requests like supply of medicines in excess of the indented ones or un-indented, on slips, or on verbal/telephonic directions etc., were based on the statement made by PW-3 and PW-4 GMSD in the CBI office. But this basic document could not be substantiated during the cross examination of the witnesses, and other witnesses had also denied any excess supply. At this stage, it is important for us to reproduce the paragraphs 12 to 14 of the respondents counter reply as follows:-
12. In view of the submissions made above, as it was seen that the charges framed against the co-accused officers including the CO could not be substantiated, the case was referred to Central Vigilance Commission for reconsideration of its 2nd Stage Advice.
13. The Central Vigilance Commission however, returned the proposal stating that they not found any justifiable reasons for the reconsideration of their earlier stand conveyed vide 2nd stage advice. The Commission further said that if the Disciplinary Authority has found inaccuracies he may take appropriate action before finally deciding the case. Since Disciplinary Authority has taken a view in the matter, reverting to the Commission for reconsideration is uncalled for.
14. As there was disagreement between the Disciplinary Authority and CVC on the nature of action to be taken, the case was referred to Department of Personnel and Training, in terms of the provisions of that Departments OM No. 118/2/78-AVD.I dated 28.09.1978, for advice. While referring the case to DoP&T for advice it was proposed that the charges leveled against the co-accused officers including the CO be dropped as the charges levelled against the officers including CO could not be substantiated. (Emphasis supplied).
30. The Department of Personnel & Trainings reply received was reproduced by the respondents in Para-15 of their counter reply, which is not being reproduced here in detail. However, the DoP&T had stated that the administrative view taken by the respondent-Ministry was seemingly to wish away all misdemeanors, just because the enquiry was shoddy, generic, and not specific, pointing towards a system failure, which approach cannot be acceptable, particularly in view of the provisions of Rule 15 of CCS (CCA) Rules, 1965, which inter-alia empowers the Disciplinary Authority to remit the matter back for further enquiry.
31. Let us now reproduce para-16,17 & 18 of the counter reply also as below:-
16. In view of the above, DOP&T observed that the advice of CVC seems to be appropriate. The Disciplinary Authority was asked to review its tentative decision and take in final view in the matter after due application of mind after considering all the facts and circumstances of the case, particularly the fact that the misdemeanour have caused substantial loss to the exchequer and there has been absence of supervision leading to various procedural irregularities and non-maintenance of records.
17. The Disciplinary Authority after examination of the case again, in view of the advice tendered by DOP&T found its advice logical and tentatively proposed to impose a major penalty on the charged officers including CO and referred the proposal to UPSC for seeking advice on the quantum of penalty.
18. The UPSC returned the case and questioned about the validity of Inquiry Report as submitted by Inquiry Officer and further stated that the discrepancies in the inquiry/Inquiry Report may be got corrected. In other words, UPSC advised that a de-novo inquiry in the case be conducted, complying with the provisions under Rule 14 of CCS (CCA) Rules, 1965 and CCS (Pension) Rules, 1972 and, thereafter, refer the case to them for seeking advice on the quantum of penalty. However, after considering the advice of UPSC, Disciplinary Authority appointed Inquiry Authority for rectifying the lapses as pointed by the UPSC and an enquiry is in progress.
32. Thereafter the counter reply had discussed the case of Shri P.B. Mondal, and it was submitted that in view of the judgment and order of the Honble Guwahati High Court, the matter was referred to Department of Legal Affairs, which advised against filing of Special Leave Petition, before the Honble Apex Court, and further advised that disciplinary proceedings against the other charged officer can be completed within time. Accordingly, the disciplinary enquiry against Shri P.B. Mondal was closed vide order dated 08.11.2012, and the disciplinary proceedings against others were continued.
33. In regard to the delay in completing the proceedings, the delay was tried to be explained in the following manner:-
22. In view of Order/Judgment of Honble High Court, Guwahati, the matter was referred to Department of Legal Affairs for their legal opinion and the Department of Legal Affairs advised against filing of Special Leave Petition in the instant case and further advised that disciplinary proceedings against other charged officer should be completed within time. Accordingly, the disciplinary case against Shri P.B. Mondal was closed vide order dated 08/11/2012 and the disciplinary proceedings is continued.
5. It is a fact that the alleged irregularities contained in the charge sheet pertain to the year 1994. However, Central Bureau of Investigation registered a case No.PE-10(A)/97-DLI dated 12/08/1997 in the matter against Shri Vijay Kumar, the then RMO, Central Jail Hospital, Tihar and 7 others including Shri P.B. Mondal and submitted its final report vide letter dated 31/12/1998. The CBIs Report was examined and referred to CVC in January, 1999, for seeking Commissions first stage advice in the matter. After receipt of Commissions 1st stage advice, in February, 1999, and its acceptance by the Disciplinary Authority, disciplinary proceedings were initiated against Dr. A.K.Singh vide Memorandum No. C-14015/1/99-Vig dated 04th June, 1999. Thus the contention of the applicant that there has been a delay of 5-6 years in initiating disciplinary proceedings initiated against him hold not ground. The Inquiry Officer, on conclusion of Inquiry submitted his report on 25th November, 2005, holding the charges levelled against the charged officers including CO as PROVED. The Inquiry Report after examination was referred to CVC, in third week of February, 2006, seeking CVCs 2nd stage advice in the matter. The Commission in its 2nd stage advice conveyed vide OM No. 99/HFW/002 dated 19th April, 2006, advised imposition of a stiff major penalty on the charged officers including the CO. As Dr. A.K. Singh including others CO in reply to the Inquiry Officers Report and CVCs 2nd stage advice had raised non-compliance of procedural formalities and violation of Rule 14 (23) of CCS (CCA) Rule, 1965, the case was examined in totality and referred to CVC again in September, 2007, for reconsideration of its 2nd stage advice as the charges levelled against the charged officers including CO were not being substantiated from records. Though there was some delay in referring the case to CVC for reconsideration of advice but the proposal sent to CVC for reconsideration of advice was for the benefit of the Charged Officers including CO. However, the Commission did not find any justifiable reason for reconsidering its 2nd stage advice and returned the proposal to the Ministry in February, 2008, for taking appropriate action, as already submitted above, the case file with the approval of the disciplinary authority was sent to DoP&T, in November, 2008, recommending closure of case against the charged officers including CO, for its advice in the matter before proceeding further. The advice tendered by DoP&T submitted its advice, in last week of January, 2009. The advice of DoP&T was put up to the Disciplinary Authority only in February, 2010 and after its acceptance by the Disciplinary Authority, the case could be referred to UPSC only in April, 2011 as the service particulars/ACR Dossiers of the charged officers had not been made available by the Administrative Division. Even in April, 2011, the proposal was sent to UPSC without the ACR Dossiers of Dr. Vijay Kumar. UPSC vide letter dated 15/02/2012 advised for de-novo enquiry for rectifying the deficiencies and the Disciplinary Authority vide order dated 18/04/2012 appointed Inquiry Authority for rectifying the deficiency.
As referred in above Para 19, 20, 21 &22, the case was referred to Department of Legal Affairs for advice on the order of High Court, Guwahati. On receiving the advice of Department of Legal Affairs, the disciplinary case against Shri P.B. Mondal has been closed and the disciplinary case against Dr. A.K. Singh and other charged officer is continued.
34. Heard. During arguments on the case, the learned counsel for the applicants relied upon para-7 of the order of this Tribunal dated 15.03.2012, with the 5 OAs clubbed together, as already reproduced in para 22/above, and relied heavily on the conclusion arrived at by the Enquiry Officer in its report dated 25.11.2005, conclusion of which has also been reproduced in para 16/above.
35. On the other hand, learned counsel for the respondents presented his case along the lines as discussed and reproduced from the counter reply above, and it was submitted that in order to rectify the deficiencies in the conduct of the disciplinary enquiry earlier as pointed out by the UPSC, the Disciplinary Authority has already ordered for de-novo enquiry being conducted, for rectification of the deficiencies, and the Enquiry Officer and the Presenting Officer have also been appointed.
36. In a case relating to the consultation with the Central Vigilance Commission and with the UPSC, a Coordinate bench at Jodhpur Bench of this Tribunal had passed an order in OA No. 89/2009 Prem Prakash vs. Union of India and Another on 14.12.2011, to which one of us was a party. It may be mentioned here that the operation of this order in O.A. No.89/2009 of Jodhpur Bench has since been stayed by the Jodhpur Bench of Honble High Court of Rajasthan, but the order has not yet been set aside, and, therefore, we are bound by this order of a concurrent Bench of this Tribunal in so far as its findings on law are concerned. The portions of that order which are relevant here in the context of this case may be reproduced as below:-
40- The issues for our consideration therefore are as to (a)whether the applicant has been discriminated against by the respondents, in different conclusions having been arrived at in the case of different persons against whom disciplinary proceedings was initiated in parallel from the same/similar sets of facts and circumstances, and secondly, and more importantly (b) whether the procedure followed by the respondents in conducting the disciplinary inquiry against and imposing punishment upon the applicant was in any manner contrary to the Central Civil Services (Classification, Control and Appeal), Rules, 1965 or not, and as to (c) whether the note of disagreement by the Disciplinary Authority was communicated properly. Related questions which arise from the second question are about (d) the role of the CVC and of the UPSC in departmental inquiries conducted under the CCS (CCA) Rules, 1965, and as to (e) whether in the instant case the limits of their prescribed roles had been transgressed or exceeded by either the CVC or/and the UPSC.
41- A related question which arises is as to (f) whether the pleasure of the President has to be exercised by the President personally / individually as a necessary course of action, and also as to whether the orders passed in the name of the President once can be revised again in his name or not. In this context, we have to also examine (g) the legality of the orders passed by the various Sections of the Vigilance Wing of the Telecom Department, like Annexures A/2 dated 20.09.2006, Annexure A/4 dated 04.04.2008, and Annexure A/6 dated 19.05.2005. We have to also determine that in the case of the applicant, his appeal having been dealt with by the Vigilance section of the Department of Telecommunication, and orders having been passed by the Desk Officer Vigilance-II on 20.09.2006 Annex.A/2, by the Director (VP) of the Vigilance Wing of the Department of Telecommunication on 17.08.2007 through Annex.A/3, and by Shri Anup Singh, S.O. Vigilance-III of the Department of Telecommunication through the letter dated 04.04.2008, part of Annex.A/4,rejecting the revision petition of the applicant, (h) has there been any transgression of the roles of these authorities, as prescribed under the Central Civil Services (Classification, Control and Appeal), Rules, 1965. Lastly, we have already determined in paragraph 39/ante that (i) the applicant can claim relief for restoration of his pension from Respondent No. 1, or Respondent No. 2, or from both, in the light of the relevant facts, and the case law, as cited at paragraphs (37) & (38) above. Thus, only the above issues, enumerated as (a) to (h) above, fall for our consideration, for being decided by us in the context of the present case, though, perhaps not in the same sequential order.
42- Let us first examine here the connection between the Vigilance activities, and conduct of Departmental inquiries in disciplinary matters. The Vigilance set up in India was introduced as an exercise parallel and almost simultaneous to the formulation of the statutory Central Civil Services (Classification, Control and Appeal), Rules, 1965, which lay down the procedure for conduct of Departmental Disciplinary Inquiries. The Government of India had set up a Committee headed by Shri K. Santanam, which was called the Committee for Prevention of Corruption. On the basis of the recommendations of that Committee, through a Government of India resolution dated 11.02.1964, the Central Vigilance Commission was set up. It was provided in the resolution that the Central Vigilance Commissioner would be appointed by the President under his hand and seal, and that he would not report to any Ministry, though for administrative purposes and release of funds, the Commission itself was to be attached to the Ministry of Home Affairs, Government of India. In November 1995, 31 years later, the resolution of 1964 was amended, and the provision relating to appointment of the Central Vigilance Commissioner by the President by warrant under his hand and seal was deleted.
43- In September 1997, the Government of India constituted an Independent Review Committee (IRC) to suggest measures for strengthening anti-corruption activities and mechanisms, as part of its efforts against corruption. One of the recommendation made by the IRC was that the Central Government may consider the question of conferring statutory status to the Central Vigilance Commission. The IRC also recommended that the CVC should be made responsible for the efficient functioning of the Central Bureau of Investigation (in short, CBI), which is a criminal investigation agency deriving its powers from the Delhi Special Police Establishment Act, 1946 (Act 25 of 1946).
44- Around the same time, the Honble Supreme Court passed its order dated 18.12.1997 in the case commonly known as Jain Hawala case, in Criminal Writ Petition Nos. 340-343/1993 Vineet Narain and Ors. Vs. Union of India and Ors. (1998) SCC 226 : AIR 1998 SC 889.The Honble Supreme Court had also given directions that statutory status should be conferred upon the Central Vigilance Commission and the several consequences following from the conferment of such status were also laid down by the Honble Supreme Court in its judgment. Thereafter, the Central Government promulgated an ordinance, namely the Central Vigilance Commission Ordinance, 1998 (Ordinance 15 of 1998 dated 25.08.1998) which was promulgated by the President to give effect to the Honble Apex Courts judgment immediately, as the next Session of the Parliament was slightly away.
45- Since certain observations were made further by the Honble Supreme Court regarding some provisions of the said Ordinance promulgated by the President on 25.08.1958, in order to rectify the position, the President then promulgated the Central Vigilance Commission (Amendment) Ordinance, 1998 (Ordinance 19 of 1998) on 27.10.1998.
46- Ultimately, with an intention to replace the two Ordinances, the Government introduced the Central Vigilance Commission Bill, 1998, in the Lok Sabha on 07.12.1998, which was examined by the Parliamentary Standing Committee on Home Affairs, and the Lok Sabha passed the Bill on 15.03.1999. But, before the Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha was dissolved, and the Bill lapsed. The Government had, in the meantime promulgated the CVC Ordinance, 1999 (Ordinance 4/1999) on 08.01 1999, which also soon expired on 05.04.1999. The Government, therefore, issued a Resolution in 1999 to continue the Central Vigilance Commission in the interim as a non-statutory body. Simultaneously, the Government re-introduced the Central Vigilance Commission Bill, 1999, which was passed by both the houses of the Parliament, and received the assent of the President on 11.09.2003, and came on the statute book as the Central Vigilance Commission Act, 2003 (Act No. 45 of 2003). With this, the non-statutory status of the Commission ended, and the Central Vigilance Commission is now functioning from 11.09.2003 onwards under the Act No. 45 of 2003.
47- The powers and functions of the Central Vigilance Commission have been enumerated in detail in Sub Section (1) of Section 8 of the said Act, the Clauses (a) to (h) of which prescribe as follows :-
8(1)(a)exercise superintendence over the functioning of the Delhi Special Police Establishment insofar as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(b) give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibility entrusted to it under sub section (1) of section 4 of the Delhi Special Police Establishment Act, 1946 (25 of 1946):
Provided that while exercising the powers of superintendence under clause (a) or giving directions under this clause, the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner.
(c) inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation established by or under any Central Act, Government company, society and any local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act, 1988 (49 of 1988), or an offence with which a public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(d) inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to such category of officials specified in sub-section (2) wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 (49 of 1988) and an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(e) review the progress of investigations conducted by the Delhi Special Police Establishment into offense alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) or the public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;
(f) review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988 (49 of 1988);
(g) tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise:
(h) exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government:
Provided that nothing contained in this clause shall be deemed to authorize the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters. (Emphasis supplied) 48- Further, Section 9, of the CVC Act, 2003, prescribes the procedure regarding the conduct of the proceedings of the Commission, and Section 11 of the said Act prescribes the power of the Commission relating to the inquiries conducted by it, as follows :-
11. Power relating to inquiries The Commission shall, while conducting any [inquiry referred to in clauses (c) of sub-section (1) of section 8], have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and in particular, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or other documents; and
(f) any other matter which may be prescribed. 49- Section 12 of the Act prescribes that the proceedings before the Commission would be judicial proceedings, as the Commission shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (Act 2 of 1974), and that every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code (Act 45 of 1860).
50- In various sections of the Central Vigilance Commission Act, 2003 mention has been made of other related/connected statutes and statutory rules, which can be enumerated as follows :-
ALPHABETICAL LIST OF OTHER STATUTES REFERRED IN THE CENTRAL VIGILANCE COMMISSION ACT,2003 Sl. Name of other Statutes Referred Section of Central Vigilance Commission Act, 2003 where reference is made.
1. All India Services Act,1951 (61 of 1951) 26 2 Code of Civil Procedure, 1908 (5 of 1908) 11
3. Code of Criminal Procedure,1973 (2 of 1974) 8(1),8(c),8(d), 8(e), 12
4. Companies Act,1956 (1 of 1956) 2(d)
5. Delhi Special Police Establishment Act, 1946 (25 of 1946) 2(c),8(b),14(2)
6. Foreign Exchange Management Act,1999 (42 of 1999) 26
7. Indian Penal Code (45 of 1860) 12, 16
8. Prevention of Corruption Act, 1988 (49 of 1988) 8(1),8(c),8(d), 8(e), 8(f), 26 51- From all the above discussions, it is very clear that from the very beginning, since its inception itself, the Central Vigilance Commission was intended to be a mechanism for curbing and controlling corruption, conducting inquiries, and probing into cases of corruption, either itself, or through the CBI, and even enforcing production of documents and witnesses for the purpose of conducting its inquiries, which are now-judicial in nature, and coming to its conclusions. But, what is important to note here is that even though the Central Vigilance Commission was set-up in 1964, and as per the history described above, it has continued to be in existence, and even became a statutory body by the Act of 2003, it has always been considered/treated as a body concerned with the criminal aspects of the cases of corruption. In regard to such criminal aspects of cases of corruption, it can either conduct its own inquiries under Clauses (c) or (d) of Sub Section (1) of Section 8 of the CVC Act, 2003, acting as a Civil Court under Section 11 of that Act, or cause such inquiries to be conducted by either the CBI, or any other agency, even in cases already under trial.
52- At no point of time has either the Parliament, or anybody else, suggested, or any Rule or Regulation has been framed, for the Central Vigilance Commission to have any role in so far as the civil / departmental / conduct rules liability in respect of the cases of corruption are concerned, or the Departmental authorities handling of the conduct of the disciplinary inquiry is concerned. As is apparent from the table as reproduced in para 50 above, while all the other relevant concerned statues, with which the Commission is concerned, have been apparently cited in the Central Vigilance Commission Act, 2003, there is no mention whatsoever in any portion of the said Act of the Central Civil Services (Classification, Control and Appeal) Rules, 1965,which were framed after the Commission had come into existence in the year 1964.
53- The converse is also true. The Central Civil Services (Classification, Control and Appeal), Rules, 1965, were published in the Gazette of India Notification dated 20.11.1965, and came into force on 01.12.1965, about more than a year after the constitution of the Central Vigilance Commission . However, in none of these statutory rules, which carry the weight of subordinate legislation with them, and which Rules the Honble Supreme Court has held to be nothing but codification of principles of natural justice, and which are more elaborate and more beneficial to the employees than even the principles of natural justice (Director General of Ordnance Services Vs. P.N. Malhotra 1995 Supp (3) SC 226 : AIR 1995 SC 1109), has the Central Vigilance Commission been mentioned anywhere. When these 1965 rules were being framed to replace the earlier CCS (CCA) Rules, 1957, and the Civilians Defence Services (CCA) Rules, 1952, which were both repealed with the Central Civil Services (Classification, Control and Appeal) Rules, 1965, coming into force w.e.f. 01.12.1965, if the legislature had so intended, the one year old nascent organization of Central Vigilance Commission, specifically created by the Government to combat corruption, could have atleast been mentioned in any one of the 35 rules contained in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It is not so, and it is very rightly not so.
54- As was observed by the Honble Supreme Court in DSilva, A.N. Vs. Union of India: AIR 1962 SC 1130 : 1962 Supp. (1) SC R 968, the nature and purpose of a Departmental disciplinary inquiry is only to advise the punishing authority in the matter of investigating into the charges brought against the delinquent officer, and that, based upon such advise elucidated from the findings of the inquiry, the responsibility both in respect of finding him guilty, or not guilty, as well as punishing him if he is found guilty, rests only and only with the punishing authority (State of Assam Vs. Bimalkumar; AIR 1963 SC 1612: 1964 (2) SCR 1; and Union of India Vs. Goel, H.C., AIR 1964 SC 364: 1964 (4) SCR 718).
55- Moreover, the conduct of a disciplinary inquiry is in the nature of quasi judicial proceedings at all of its stages. The Inquiry Officer is supposed to conduct his inquiry in a quasi judicial capacity. The Disciplinary Authority thereafter has to take an independent decision of his own in the matter, in a quasi judicial capacity. The Appellate Authority, and the Review or Revisional Authority, wherever revision lies, also are supposed to follow the principles of natural justice, and act in quasi judicial capacity. Therefore, while acting in quasi judicial capacity, the Inquiry Officer, the Disciplinary Authority, the Appellate Authority, and the Review or Revisional Authority, have to be guided only by their own individual/personal judgment, and the papers and evidence before them, as has been elucidated during the course of the disciplinary inquiry, after delinquent was given an opportunity of being heard, and to try to rebut the charges brought against him. While arriving at their own individual/personal conclusions, they cannot be guided, or dictated to, by any other person or authority, or correspond with any authority, which has not been prescribed a statutory role, as either the Inquiry Authority, or the Disciplinary Authority, or the Appellate Authority, or the Revisional/Review Authority under the Central Civil Services (Classification, Control and Appeal), Rules, 1965. Thus, in a departmental inquiry, the case of a delinquent official, has to be considered, and the evidence for or against him assessed by the independently acting minds of only four identifiable persons in authority the Inquiry Officer / Authority, the person who is designated as his Disciplinary Authority, a person senior than the designated Disciplinary Authority who has been designated as Appellate Authority, and, where the service rules applicable to the delinquent so prescribe, another further senior / higher person, who is the incumbent posted against the post designated as the Revisional / Review Authority. No fifth mind comes into the picture.
56- Combating corruption and locating cases of Government servants having indulged in corruption clothes the CVC with the nature of an investigator, or a prosecutor, and since a prosecutor cannot be a judge in his own case, the legislature has very rightly and consciously maintained the iron / steel wall which should separate the Vigilance functions from the proceedings of the departmental enquiries, and from the performance of the quasi-judicial functions of the departmental Disciplinary and other superior authorities. The Central Vigilance Commission has been very rightly given the authority over even the CBI, acting under the Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946), and has been given powers under the Prevention of Corruption Act, 1988 (Act 49 of 1988), apart from IPC, FEMA, 1999, Companies Act, 1956, and the All India Services Act, 1951, along with the Code of Civil Procedure, and the Code of Criminal Procedure. But, at the same time, and very rightly so, the Central Vigilance Commission has not been installed at any place in the hierarchy of the Inquiry Authority / Inquiry Officer, the Disciplinary Authority, the Appellate Authority, or the Revisional/Review Authority, under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, anywhere. Therefore, it is clarified and made clear that the CVC, or even the Central Bureau of Investigation acting under its jurisdiction under the Delhi Special Police Special Act, 1946 (Act No. 25 of 1946), cannot have any say or role in the conduct of the disciplinary inquiry, at any stage, or in any manner whatsoever, as a fifth mind/authority.
57- The impact of consultation with the Central Vigilance Commission on the fairness of the procedure adopted, in the departmental disciplinary enquiry was very adversely commented upon by the Honble Supreme Court in Nagaraj Shivarao Karjagi Vs. Syndicate Bank, 1991 (1) SCALE 832 : 1991 (2) JT 529 : 1992 AIR (SC) 1507 : 1991 (3) SCC 219. The Honble Apex Court has clearly laid down the law that the authorities dealing with departmental enquiry cases have to exercise their own quasi-judicial discretion alone, having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission, or of the Central Government. No other party like the Central Vigilance Commission, or the Central Government, can dictate to the Disciplinary Authority, or the Appellate Authority, as to how they should exercise their power, and as to what punishment they should impose on the delinquent officer. What the Honble Apex Court meant was that the streams of natural justice can flow un-sullied only and only if every such outside/external influence is kept away from the application of their mind totally freely and independently by the four authorities statutorily prescribed for applying their mind to the case of the delinquent.
58- Further, in a case very similar to the present case, in D.C. Agrawal Vs. State Bank of India, 1991 (2) SLR P&H 578, the disciplinary authority took into consideration the report/views of the Central Vigilance Commission, to disagree with the findings arrived at by the Inquiry Officer, and to hold that some charges stood proved. The Disciplinary Authority did not communicate full reasons of his disagreement, and as to why and how it had taken the CVCs views into consideration in coming to the conclusion to differ/disagree with the Inquiry Officers report, thus preventing the petitioner therein from making an effective representation against the proposed punishment. It was held by the Honble High Court that there could be no escape from the conclusion that the principles of natural justice had been violated.
59- Though the legislature has maintained this steel wall of separation between the Vigilance and the departmental inquiry functions while framing the CCS (CCA) Rules, 1965, and not mentioned either the Central Vigilance Commission, or the Central Bureau of Investigation, in any part of those rules, even by an amendment in the last 46 years, yet some discrepancy has crept in/entered into, because of an administrative instruction issued by the Government of India, Ministry of Home Affairs, on 18.11.1964, which was issued after the creation of the Central Vigilance Commission as a non-statutory body. This instruction may be reproduced from Swamys Compilation of CCS (CCA) Rules, as Government of India decision Two below Rule 29 of the CCS (CCA) Rules, 1965, as follows :-
29.[Revision] (1) Notwithstanding anything contained in these rules
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and [Adviser (Human Resources Development), Department of Telecommunications] in the case of a Government servant serving in or under the Telecommunications Board]; or
(iv) the Head of a Department directly under the Central Government in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the Appellate Authority, within six months of the date of the order proposed to be [revised]; or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and [revise] any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
[Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary]:
Provided further that no power of [revision] shall be exercised by the Comptroller and Auditor-General, [Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications]or the Head of Department, as the case may be, unless
i) the authority which made the order in appeal, or
ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for [revision] shall be commenced until after
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for [revision] shall be dealt with in the same manner as if it were an appeal under these rules.
GOVERNMENT OF INDIAS DECISIONS (1) Self-contained, speaking and reasoned order to be passed and to issue over the signature of the prescribed Revising Authority.-See GID (1) below Rule 15.
(2) Scrutiny of punishments to be made by Vigilance Officers.-Recommendation No. 75 (ix), contained in Paragraph 9.23 (ix) of the Report of the Committee on Prevention of Corruption, has been considered in the light of the comments received from Ministries / Departments. The recommendation consists of the following two parts :-
(i) The Chief Vigilance Officers should have the power to scrutinize the correctness of the findings and conclusions arrived at in a departmental inquiry and the adequacy of punishment and initiate action for revision if he considers that the punishment awarded is inadequate; and
(ii) The Delhi Special Police Establishment should be authorized to move for revision of findings and punishment in cases started on their report.
It is further stated that in all these matters the advice of the Central Vigilance Commission should be freely obtained.
2. As regards (i) above, a Vigilance Officer cannot obviously scrutinize findings accepted and orders passed by an officer in his own hierarchy to whom he is subordinate. For example, when a Secretary passes orders, there can be no question of the Vigilance Officer of the Ministry scrutinizing the case, or if the Head of a Department passes orders, his Vigilance Officer cannot examine the correctness of the decision. The intention of the recommendation is that, findings and orders in disciplinary cases should be scrutinized at the next higher level the officer at that level (Secretary, Head of Department, etc.), who can decide whether the order passed by the lower authority needs to be revised.
3. In a case where there is an appeal in a disciplinary case, the findings and the orders of punishment have, in any case, to be scrutinized. Such scrutiny would normally be done by the Vigilance Officer though of course, orders of the appropriate Appellate Authority (Secretary, Head of Department, etc.), would be taken. This class of cases does not, therefore, present any difficulty. There are, however, cases in which a Government servant is either exonerated in disciplinary proceedings or is awarded punishment against which he considers it imprudent to appeal. In a certain percentage of these cases, it is desirable that the power of revision should be exercised. The object of this is to ensure by a systematic arrangement of scrutiny that the power of revision is exercised in all suitable cases.
4. As regards (ii) above, attention is invited to the procedure laid down in Paragraph 6 of Central Vigilance Commissions Circular No. 9/1/64-D.P., dated the 13th April, 1964 (not printed), which gives effect to this part of the recommendations.
[G.I.M.H.A., OM No. 43/109/64-AVD, dated the 18th November, 1964, addressed to the Vigilance Officers of all Ministries / Departments of the Government of India] 60- This instruction was issued by the Government of India, Ministry of Home Affairs, by following the then CVCs Circular dated 13.04.1964, when the Central Vigilance Commission itself was a non-statutory body and had no force of law to support its dictates. Therefore, following the law as laid down by the Honble Apex Court in the case Nagaraj Shivarao Karajgi (supra) and by the Honble Punjab and Haryana High Court in D.C. Aggarwal (supra), the CVCs Circular No. 9/1/64 DP dated 13.04.1964, and in particular Para no. 6 of the same, and the Government of India O.M. No. 43/109/64-18.11.1964, reproduced above, are struck-down as un-constitutional, illegal and abhorrent to the rule of law, and principles of natural justice. Striking down these two Circular/O.M. is essential specially since there is no provision in these instructions for the Vigilance Officer concerned to give an opportunity of being heard to the delinquent Government official, whose departmental disciplinary inquiry case is being so scrutinized, and also, since there cannot be any pedestal for the CVC to be placed in the middle of the statutory procedure prescribed for holding the Departmental Inquiries, above, below, or in-between the Inquiry Authority, the Disciplinary Authority, Appellate Authority, or the Review /Revisional Authority, where such review / revision has been provided for. The CVC cannot be a supernumerary fifth mind, when no statutory prescription has been made for the interpolation of such a fifth mind to assess the evidence for or against a delinquent during the course of the progress of a disciplinary inquiry. Therefore, any and all further instructions, issued by the CVC, ever since 1964, regarding the requirement of consultation with the Office of the CVC, during the course of, or in between, the conduct of the departmental inquires by the designated statutory disciplinary authorities of various Ministries / Departments / Organizations / P.S.Us. of the Government of India ( or the State Government, as the case may be ) are also therefore illegal, and without jurisdiction, and all such instructions of the CVC and/or the Vigilance Wings / Sections are also set-aside, and struck down as un-Constitutional, and against the principles of natural justice.
61- In the case of the CBI also, under the Delhi Special Police Establishment Act, 1946, no role has been assigned to the CBI other than that of a criminal investigation agency, and since an investigating agency looking into the criminality aspect cannot act in quasi judicial capacity, and cannot similarly interpose itself as either an Inquiry Authority, or the Disciplinary Authority, or the Appellate Authority, or the Revisional Authority under the CCS (CCA) Rules, 1965.Therefore,even the CBI cannot also have any role to play, or called upon to give any opinion or suggestion to any of these four statutory authorities prescribed under the CCS (CCA) Rules, 1965, who are required to act in quasi judicial capacity in their own right, and are individually responsible to apply their own mind alone, and to scrupulously follow the principles of natural justice.
62- It has to be noted that, as mentioned earlier also, vigilance is an action which clothes the authority involved in the process of vigilance with the cloak of either an investigator, or a prosecutor. Since under the Indian Law, under Common Law principles, investigating agencies / authorities and the prosecuting agencies or authorities, cannot be a judge also, a person who is involved with the aspects of vigilance within an organization cannot have any role to play in the conduct of departmental inquiry, which is a totally quasi judicial function at all the levels of Inquiry Authority / Officer, Disciplinary Authority, Appellate Authority, and the Revisional/Review Authority, as mentioned earlier also. However, in total violation of these basic principles flowing from the Common Law principles of natural justice, it is observed that in many organizations and Departments and Ministries of Government of India, the Vigilance Section gets involved in pursuing the various stages of the disciplinary inquiry, including the stage from the framing of charge against the delinquent official, up to the stage of award of punishment by the Disciplinary Authority, the decision of the Appellate Authority on the appeal against it, and, finally, exercising of Review/Revisional powers, where applicable. This is anathema to the spirit of laws as they exist in India, and under the basic Common Law principles of natural justice, it is like Insider Trading in Stock Exchanges, and akin to the French and Italian System of a prosecutor judge, permissible under the Civil Law principles,but far-far removed from the principles of Common Law which are followed scrupulously in Indian Laws.
63- As has already been mentioned above, since the holding of disciplinary inquiry involves quasi judicial functions to be performed at every stage, by every authority concerned, and such quasi judicial authority functions can be performed by them only by an independent application of mind their own mind alone, totally aloof, removed, or un-influenced by the opinion of anybody, or of the Vigilance wing of the organization, which may be interested in successfully prosecuting a delinquent Government official, ensnared / caught / nabbed by the Vigilance Wing/section in a particular action on wrong footing, the Vigilance Wing/section of any organization cannot be allowed to have its own say at any of the stages of the proceedings of the disciplinary enquiry. The steel wall erected by the legislature (and very rightly so) for the Vigilance functions to be totally separated from the quasi-judicial functions involved in a disciplinary enquiry process, has to be maintained at all costs.
64- It is clear that the framing of memorandum of charge, and the list of documents by which the charge would be proved, and also the list of witnesses through whom the charge is intended to be proved, and the articles of charges as are made-out, have all to be in the language as approved by the Disciplinary Authority alone, after application of his own independent mind. This issue was examined in the cases of Sukhendra Chandra Das Vs. Union Territory of Tripura, AIR 1962 Tripura 15, Manihar Singh Vs. Superintendent of Police, AIR 1969 Assam 1; Union of India Vs. J.A. Munsaff, 1968 (17) FLR 14 SC; and Shardul Singh Vs. State of M.P., AIR 1966 MP 193, with concurring judicial pronouncements.
65- The role of the Vigilance Wing or section in institution of a disciplinary proceedings can at best be limited to, and end with, giving a detailed narration of the incident/wrongful action in which the delinquent Government official was found to be involved, and giving a list of the possible Articles of charges, and a list of the possible documents through which the guilt of the delinquent official can be tried be proved, and also providing a list of possible witnesses, who can throw light on various aspects of the incident, or wrongful action, claimed by the Vigilance Wing or section to have been indulged in by the delinquent Government official. The Disciplinary Authority has to thereafter necessarily then use his own judgment, finalise the memo of charges, and Articles of charges, and have them served, and thereby initiate the disciplinary proceedings. Thereafter, the Vigilance Wing or section of the organization has to be kept consciously separated (by a notional steel wall) from what all happens after the Vigilance Wing or section has provided its initial reports and details to the Disciplinary Authority concerned.
66- As has been already held in the cases cited above, in para 64, unless the Rules in this regard so permit, it is the role of the Disciplinary Authority alone to either himself frame, or cause to be framed by those working under him or his immediate juniors, and then himself approve, the memorandum of Articles of charge, with an independent application of his own mind, and, this could very well be done by him after studying the information and documents sent to him by the Vigilance Wing or section in regard to the incident of wrongful action on the part of the delinquent Government official. Also, the Disciplinary Authority alone can decide as to which of the documents out of the list of documents suggested by the Vigilance Wing or section should be relied upon for establishing the case of the administration against the applicant as suggested by the Vigilance wing or section. The decision on the list of the documents proposed to be relied upon has once again to be taken, or cause to be taken by his immediate juniors, and then approved by himself, in a totally neutral and above board manner, by the Disciplinary Authority by an application of his own mind alone, without being influenced by any suggestion or direction from the Vigilance Wing or section of the organization. Similar would have to be the case with the list of proposed witnesses, and the Disciplinary Authority has to independently decide, or cause to be decided by his immediate juniors, and then approve it himself, by an application of his own mind alone, as to which witnesses ought to be included in the list of witnesses through whom the incident or wrongful action of the delinquent Government official may be sought to be proved by the Presenting Officer during the departmental inquiry.
67- Thus the whole initial task of finalization of the memorandum of Articles of charge, and the list of documents and witnesses through which the Articles of charge are sought to be proved, has to be performed, or cause to be performed by his immediate juniors, and then approved himself, by the Disciplinary Authority alone, by an application of his own mind alone, acting in his own individual capacity. Since the subsequent actions of the Disciplinary Authority are quasi judicial in nature, the duty to perform all those quasi-judicial tasks gets attached to the individual incumbent officer who is holding the substantive charge of the concerned post/ designation, designated as the Disciplinary Authority of the delinquent Government official concerned, and not merely any officer, or any other officer who is merely looking after the current duties of the post concerned.
68- Even an Officer holding only the current charge of the duties of the post designated as the Disciplinary Authority of the delinquent Government official cannot perform these crucial statutory functions of finalization of the memorandum of charge, Articles of charge and the list of documents and witnesses through which the Articles of charge are sought to be sustained, and the subsequent quasi-judicial functions as the Disciplinary Authority.
69- This principle was first enunciated by D.G.P.&Ts Memo No. STB/112/23/49 dated 15th December, 1949, read with Memo of even number dated 26th February, 1951, in the context of junior officers looking after current duties of a higher post. Later, it was reiterated by the Government of India, Ministry of Finance, O.M. No. F 12(2) E.II(A)60 dated 15th October, 1960, laying down the requirement of Gazette Notification for the Officer appointed to hold the current duties of a post to exercise statutory functions. This principle was once again reiterated by the Government of India, Ministry of Home Affairs, O.M. No. F.7/14/61-Ests.(A) dated 24th January, 1963. These instructions remain unchanged, and the 1960 and 1963 O.Ms. have continued to be referred to at Government of Indias decision No. (2) below Rule 12 of the CCS (CCA) Rules, 1965, in Swamys compilation.
70- Needless to add therefore that that very incumbent officer, who holds the substantive charge of the post concerned in his individual capacity, and is not holding such charge as an additional charge, or charge of current duties of the post, alone can be designated as the Disciplinary Authority of the delinquent Government official, and can appoint and nominate the Inquiry Officer and the Presenting Officer. Once again, if there is a request made by the delinquent official for change of the Inquiry Officer, then also, only a regularly posted incumbent officer, substantively posted against the post designated as the Disciplinary Authority of the delinquent Government official concerned, who alone can decide about changing the Inquiry Officer.
71- The delinquent Government servant does not however have a right to request for a change of the Presenting Officer, as the Presenting Officer is merely an official presenting the case as had been built up by the concerned Vigilance Wing or section of the organization, and, on behalf of the organization, try to prove the case of the administration before the Inquiry Officer. But, it may be added here that though the Rules as prescribed in this regard may not have so prescribed thus far, Common Law principles of natural justice would require that the Presenting Officer in a disciplinary enquiry cannot also be an official from the Vigilance Wing or section, though he would be required to try to prove the case as made out by the Vigilance Wing or section initially as a result of their Vigilance activities.
72- At the stage of accepting the inquiry report of the Inquiry Officer and communicating it to the delinquent Government official, if the Disciplinary Authority opts to differ / disagree with the findings of the Inquiry Officer, then the task of communicating the reasons for his difference or disagreement from the findings of the Inquiry Officer, along with the report of the Inquiry Officer, is also a quasi judicial function, which can be performed only by the regular incumbent officer posted in substantive capacity against the post designated as the Disciplinary Authority of the delinquent Government official concerned. This task, and the subsequent task of giving a personal hearing to the delinquent Government official in respect of the findings arrived at by the Inquiry Officer, as well as any points of disagreement and the grounds of disagreement mentioned by the Disciplinary Authority for being replied to, is also a quasi judicial function, which also can be performed only by the regular incumbent officer, substantively posted against the post which has been designated as the Disciplinary Authority of the delinquent Government official concerned. Even a person who is holding an additional charge/charge of the current duties of that post, cannot perform such quasi judicial functions, unless he has been Gazette Notified for substantively performing the statutory functions of that post. Since these are quasi judicial functions, the Disciplinary Authority does not have any requirement of consulting anybody or any authority in regard to as to whether he should, in his individual capacity, accept the findings of the Inquiry Officer, or dis-agree with any parts or the whole of the findings of the Inquiry Officer, and communicate both the report of the Inquiry Officer, and the note of his disagreement, if any, detailing the points on which he dis-agrees with the Inquiry Officer, along with explanation or reasons of such disagreement, to the delinquent Government official.
73- It appears that following the 13.04.1964 instructions of the CVC, as well as the Government of India, Ministry of Home Affairs O.M. No. 43 /109/ 64 - AVD, dated 18.11.1964, reproduced above, in many Ministries of Government of India, the Disciplinary Authorities are being compelled to send all the documents, and the report of the Inquiry conducted by the Inquiry Officer, to either the office of the CVC, or the office of the Central Bureau of Investigation, or both, for advice. Thereafter, when once the CBI or the CVC have given any advice or opinion on that matter, or regarding those files, it is quite obvious that the streams of natural justice got polluted, and cannot and do not flow free. It would be futile to imagine that the Disciplinary Authority would still then be able to apply his own independent mind, and arrive at his own independent conclusion, independent of the opinion in writing given by the Central Vigilance Commission or the Central Bureau of Investigation. This apprehension was expressed in the following words by the Honble Punjab and Haryana High Court in the case A.K. Roy Choudhry Vs. Union of India & Ors., 1982 (1) SLR 443 Punj :-
The opinion of an august body like the Central Vigilance Commission would obviously carry great weight with the Disciplinary Authority in reaching a final conclusion. At any rate, the possibility of such an influence cannot be negatived. (Emphasis supplied) 74 to 77xxxxxxxxxx(Not reproduced here).
78- The Inquiry Report in respect of the disciplinary inquiry conducted was later sent to the applicant with the cover letter of Annex.A/6 dated 19.05.2005 as already mentioned and reproduced above. However, in between the date of the finalization of the report of the Inquiry Officer by the Inquiry Authority on 23.05.2005, and the date of issuance of Annex. A/6 dated 19.05.2005, the respondent authorities conducted a further illegality in once again sending their whole file No. 8/98/2003 Vig-II to the office of the CVC on 11.04.2005. From Page No. 55-A of the OA, reproduced above at para 6/ante, we can see the opinion then furnished on 27.04.2005 by the office of the CVC, which formed a part of the Annex.A/6 as supplied to the applicant. From the contents of that Memorandum Annexure A/6 dated 19.05.2005, reproduced above at para 6/ante, it is seen that once again it was the CVC office alone which after having perused the inquiry report, along with its relevant records, and comments of the administrative authorities thereupon, had arrived at / come to the conclusion of not agreeing with the findings of the Inquiry Authority. Instead, it chose to concur with the comments of the administrative authorities of the applicant in the Department of Telecom, that a part of the charges against the applicant herein were proved, and that there was adequate evidence on record, and that the charged officer/applicant had knowledge that both the Cables were laid in the same Trench, and that the evidence as adduced also revealed through the deposition of witnesses that the charged officer had made two payments as if the two works were done/executed separately. Thus, it was not the designated Disciplinary Authority, but Shri Yogesh, Director of the office of the CVC, who came to the conclusion that when the charged officer/applicant had knowledge of these facts he should have thoroughly investigated the matter, and he then went on to advise the department for the imposition of a suitable major penalty on the applicant herein, while returning the complete records to the Department of Telecom through his I.D. Note dated 27.04.2005 (page 55/A of the O.A., reproduced at para 6/ante).
79- Thereafter, the Memorandum dated 19.05.2005 (Annex.A/6) was issued and signed by the Desk Officer (Vig.-II) Shri A.K. Patro. Here, it would be seen that the respondent authorities are further claiming that this Memo (Annex.A/6) was issued by order and in the name of the President, although it was not mentioned as to which particular officer, of what designation, had acted in this case on behalf of the President of India as the designated Disciplinary Authority of the delinquent Government official / applicant. Since such memorandum of dis-agreement with the findings of the Inquiry Authority could have been issued only and only by the designated incumbent officer holding the charge of the post designated as the Disciplinary Authority of the delinquent Government official for acting on behalf of the President in substantive capacity, and not even in any additional charge, or any charge of looking after the current duties, as mentioned above, at least the designation, if not the name also, of the individual incumbent officer who had acted for and on behalf of the President of India in this case, ought to have been mentioned, so that the mind which was applied to consider the case can be identified, as the President himself does not apply his own mind in such cases.
80- This memorandum also was signed by the D.O.Vig.-II, where once again it is seen that the Vigilance Section of the Department of Telecommunication continued to abrogate to itself the quasi judicial functions of the designated authorities, as laid down by the CCS (CCA) Rules, 1965, which power or function it could not have exercised/possessed at all. Secondly, very blatantly, and un-abashedly, this Memorandum went on to mouth the very same exact words as were recorded by Shri Yogesh, the Director of the Office of the CVC, in his Note dated 27.04.2005 (reproduced at para 6/ante) as the ground for dis-agreement with the findings of the Inquiry Authority, without giving any basis or details of that portion of the documentary or oral evidence adduced during the disciplinary enquiry, which was considered not worth being relied upon by the Disciplinary Authority acting in his individual substantive capacity, for arriving at such a conclusion. Thirdly, when the Articles of Charge against the applicant had been framed under the signatures of Assistant Director General (VT), under the signatures of Shri S.D. Kaushik, posted in the Vigilance Wing, through Annex. A/1 dated 10.09.2003, no authority or Officer lower than that rank / post could have even tried to assume the functions of the Disciplinary Authority, which functions in this case were abrogated by the Desk Officer, by merely mentioning to have acted for and on behalf of the President. This entire process is abhorrent and unacceptable under all tenets of administrative law.
81- Also, when the delegation of the powers of the Honble President of India within the Department of Telecom does not appear to have been properly laid down, and no authority has been apparently designated as the Disciplinary Authority of the delinquent / applicant under the CCS (CCS) Rules, 1965, and there is no evidence brought on record that the orders of the President of India himself were obtained, merely mentioning in a routine manner that such Memorandum was issued by order or and in the name of the President of India was clearly illegal, and deserves to be set aside, and therefore Annex.A/6 is also separately set aside as illegal. Therefore the issue framed at para 40 (c)/ante is answered accordingly.
82- It is not as if the powers and functions of the President of India cannot be delegated and performed by anybody else. The Honble Supreme Court has clarified in Samsher Singh Vs. State of Punjab, AIR 1974 SC 2192 : (1974) 2 SCC 831, that even a Minister of the Union Cabinet, or Minister of State, or a Deputy Minister, or a Secretary of the Government of India, can perform even those functions which were required by the Constitution to be performed on the subjective satisfaction of the President, e.g. under Proviso (c) to Article 311 (2), by a process of delegation by Rules of Business made under Article 77 (3), and this principle was extended even to a quasi-judicial function, through Union of India vs. Sripati Ranjan Biswas, AIR 1975 SC 1755 : (1975) 4 SCC 699. Prior to that also, the Honble Delhi High Court had held that even an Additional Secretary, or a Joint Secretary, or a Director, or a Dy. Secretary, or an Under Secretary, can perform the Executive functions, which a statute may mention to be performed by order and in the name of President of India, but only if the specific authority to do so in this regard had been delegated to that level (Ministers or officials) by a separate Gazette Notification : Labh Singh Atma Singh Vs. Union of India & Ors., AIR 1970 Delhi 171.
83- Here, in this case, when the Assistant Director General had found himself competent to issue the initial Articles of Charge, by no stretch of imagination could a Desk Officer have been designated as the Disciplinary Authority of the applicant /delinquent Government official, that too stating to have acted by order and in the name of the President of India. But since a number of authorities, at various levels of seniority, can be notified to perform the functions for and on behalf of the President, the levels of finality of decisions taken For and on behalf of the President of India can also be prescribed differently. As a result, it follows that the decisions of an officer authorized to act on Presidents behalf as a Disciplinary Authority can be appealed against before another next higher level officer, who is also so authorized to act on the Presidents behalf, but as the Appellate Authority, and the same would apply to the officer at further next higher level authorized to act as Revisional Authority on the Presidents behalf. The issue framed at para 41 (f) ante is therefore answered accordingly, and it is held that an order passed in the name of the President by the Disciplinary / Appellate Authority can be changed or revised by another order, passed once again in the name of the President, by the designated next higher Appellate / Revisional Authority, if such authorities have been Gazette notified to so act for and on behalf of the President for performing those statutory functions. This, to our mind, flows from the orders of the Honble Delhi High Court in the case Labh Singh Atma Singh Vs. Union of India & Ors. (supra), and Honble Apex Courts ruling in the case of Sripati Ranjan Biswas (supra), as a necessary concomitant principle.
84.xxxxxxxxxxx(Not reproduced here).
85- Rule 29 of the CCS (CCA) Rules,1965, does provide for consultation with the UPSC, and prescribes that the UPSC may advise the Government in regard to the quantum of punishment to be imposed, as provided for under Article 320 (3)(c) of the Constitution of India, but by no stretch of imagination can such advise of the U.P.S.C. be sought when prior to that itself it has been stated that the previous Memorandum itself was issued by order and in the name of the President of India. There appears to be no provision for U.P.S.C. to tender any advice in cases where orders have already been passed by order or in the name of the President.
86- Once again, in the opinion of the UPSC, signed by the Deputy Secretary, and sent back on 18.07.2006, the whole facts of the case were re-appreciated by the U.P.S.C. once again, and the UPSC in fact gave the advise that the ends of justice would be met if a penalty of 5% cut in pension for a period of three years was imposed on the applicant. Thereby, thus once again the independence of the quasi-judicial functioning of the Disciplinary Authority was compromised, inasmuch as no scope was left by the U.P.S.C. for the Disciplinary Authority to arrive at an independent conclusion of his own, different from that of UPSC, for the appropriate penalty to be imposed upon the delinquent Government official. By blindly following the advise of first the CVC, and then the UPSC, the order passed on 20.09.2006 (Annexure A/2), without giving any supportive reasons, and signed by Shri A.K. Patro, Desk Officer Vigilance-II, goes against the very basis of the CCS (CCA) Rules,1965, and the legality of the orders which may be passed under CCS (CCA) Rules,1965, and was entirely illogical and abhorrent in the eyes of law, and is struck down as illegal.
87- The legal position arising out of the consultation with the UPSC and with the Central Vigilance Commission, has come to be analyzed in a number of cases. The Honble Supreme Court has considered the issue of the nature, impact, and the follow-up action required on the consultation with the U.P.S.C. prescribed under Article 320 (3) (c) of the Constitution in the following landmark cases : (1) Union of India & Anr. Vs. T.V. Patel, (2007) 4 SCC 785; (2007) 5 SCR 373; (2) State of UP Vs. Manbodhanlal Srivastava, AIR 1957 SC 912 : 1958 SCR 533;, and (3) Ram Gopal Chaturvedi Vs. State of M.P., (1969) 2 SCC 240: AIR 1970 SC 158: 1970 (1) SCR 472. It has been held that though the advice given by U.P.S.C. need not be supplied to the delinquent Government official, the recommendations of the U.P.S.C. are not binding upon the Disciplinary Authority, who still has the responsibility and legal duty to arrive at his own independent decision on the quantum of punishment to be imposed on the delinquent official. In the case of State of U.P. Vs. Manbodhan Lal Srivastava (supra) the Honble Apex Court noted that the process of consultation with the UPSC under the provisions of Article 320 (3) (c) of the Constitution of India was not complied with, and the Constitution Bench of the Honble Supreme Court had held that the provisions of Article 320 (3) (c) of the Constitution of India are not mandatory, and that they do not confer any rights on a public servant, so that absence of consultation with the U.P.S.C., or any irregularity in consultation with the U.P.S.C., does not afford him a cause of action in courts of law. But, in the instant case, it does not appear that after obtaining the report / advise of the U.P.S.C., the designated Disciplinary Authority had performed its legal duty and fulfilled the responsibility to arrive at his own independent decision on the quantum of punishment to be imposed on the applicant as the delinquent official.
88- In the case of A.N. DSilva Vs. Union of India, AIR 1962 SC 1130 : 1962 (Supp) 1 SCR 968, the Division Bench of the Honble Supreme Court held clearly that just because Article 320 (3) of the Constitution of India provides that the UPSC shall be consulted in all disciplinary matters affecting a person serving under the Government of India in a civil capacity, the UPSC does not become an Appellate Authority over the Inquiry Officer, and that the President is in no way bound by the advise of the Union Public Service Commission. Therefore, it was made amply clear by the Honble Supreme Court that even if while making their recommendation or tendering their advise the Union Public Service Commission may have expressed an opinion or a conclusion on the merits of the case, as to the misdemeanour alleged to have been committed by a public servant, and such conclusion may be different than the conclusion of the Inquiry Officer, the U.P.S.C. opinion is not binding.
89. In the case of N. Rajarathinam Vs. State of Tamil Nadu and Another (1996) (10) SCC 371, the Tamil Nadu Public Service Commission, when consulted, had recommended to take a lenient view in the matter, but the Government had not accepted the recommendation. The Honble Supreme Court again held that under Article 320 (3) (c), the view of the Public Service Commission being only recommendatory, the Government was not bound to accept the recommendation made by the Public Service Commission. The Honble Supreme Court reiterated that it is only for the Statutorily prescribed Disciplinary Authority to take into consideration all the relevant facts and circumstances, and if the Disciplinary Authority finds that the evidence establishes misconduct against the public servant, the Disciplinary Authority is perfectly empowered to take appropriate and independent decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be imposed is also only for the Disciplinary Authority alone to independently consider, and take a decision, keeping in view the discipline in the service.
90- Once again in the case of Union of India and Another Vs. T.V. Patel,(supra) consultation with the Public Service Commission under Article 320(3)(c) on all disciplinary matters came to be examined, and it was again held by the Honble Supreme Court that since the process of consultation itself is not mandatory, the absence of consultation, or any irregularity in consultation process, or any illegality in furnishing a copy of the advise tendered by the Public Service Commission to the delinquent Government official, does not confer the official a cause of action in a Court of law. The Honble Supreme Court went on to clarify that under Rule 32 of the CCS (CCA) Rules, 1965, the expression along with the copy of the order passed in the case by the authority making the order, would mean only the final order passed by the authority imposing penalty on the delinquent Government servant.
91- Needless to add here that since neither the UPSC nor the CVC, have been designated as a tier of the prescribed statutory authorities under the CCS (CCA) Rules, 1965, to decide about imposing a penalty on the delinquent Government servant, they cannot also suggest any penalty, and even if the UPSC suggests such a penalty, the Constitutional provisions concerned do not require the Disciplinary Authority or the Appellate Authority or the Revisional/Review Authority to consider and necessarily follow the opinion or advise tendered by the Public Service Commission. Since the CVC does not have any constitutional basis or foundation, its advise, obviously, would carry even lesser weight than that of the U.P.S.C. The issue raised at para 40 (d) / ante is therefore answered accordingly.
92- Also, while the Union Public Service Commission finds mention at a place in the CCS (CCA) Rules, 1965, on the contrary it is seen that the Central Vigilance Commission, which had already been created a year earlier, in 1964, though as a non-statutory body then, does not find even a mention in the CCS (CCA) Rules,1965. Therefore, it is clear that the Legislature never intended for the CCS (CCA) Rules, 1965, to provide for any consultation whatsoever, at any stage whatsoever, with the Central Vigilance Commission, since such a consultation, or opinion furnished by the CVC, may affect or influence the mind of the prescribed statutory authorities, the Disciplinary Authority, or the Appellate Authority, or the Revisional / Review Authority concerned. In the case of State of A.P. Vs. Nizamuddin Ali Khan, S.N., AIR 1976 SC 1964 : 1977 (1) SCR 128 : (1976) 4 SCC 745; 1977 (2) LLJ 106, it was clearly laid down by the Honble Supreme Court that the Disciplinary Authority cannot act on the basis of the report of any person other than the Inquiry Officer, without giving the delinquent an opportunity to meet the contents of that report. In a case specifically concerning consultation by the statutory authorities with the CVC, which reached the Honble Supreme Court, Sunil Kumar Banerjee Vs. State of West Bengal and Others, AIR 1980 SC 1170 : (1980) 3 SCC 304 : 1980 (2) SLR 147, it was found by the Honble Supreme Court that though the Disciplinary Authority had consulted the Central Vigilance Commission, but the records disclosed that the conclusion of the Disciplinary Authority was arrived at independently, on the basis of the relevant record, and the Honble Apex Court also noted that there was no reference of the advise of the Central Vigilance Commission in the preliminary findings of the Disciplinary Authority as communicated to the delinquent officer. It was held by the Honble Supreme Court that since the Disciplinary Authority had not in any manner been influenced by the advise of the Central Vigilance Commissioner, no illegality had taken place in that particular case. Therefore, the crux of the matter lies in the influence which the CVCs opinion can have on the minds of the statutory authorities concerned with the disciplinary proceedings, which influence has to be, and must be avoided at all costs, even if the CVC has been consulted.
93- But, it is not so in the instant case before us. In the case before us, not only has the opinion or advise of the Central Vigilance Commission been referred to by the purported Disciplinary Authority while communicating its findings of supposed dis-agreement with the findings of the Inquiry Officer exonerating the applicant, but, further, it is quite obvious that the conclusions of the purported Disciplinary Authority were not arrived at independently of the opinion of the CVC, and were not arrived at only on the basis of the relevant records. From the language of the impugned Memo itself it is clear that the decision to differ with the findings of the report of the Inquiry Officer exonerating the applicant was wholly influenced by the advise of the Central Vigilance Commission, and, therefore, the process of natural justice stood grossly vitiated in this case.
94- In another case, the Gujarat High Court also considered the effect of the comments of the opinion of the Central Vigilance Commission, which were taken into account by the Disciplinary Authority, in the case of A.K. Roy Choudhry Vs. Union of India and Others, 1982 (1) SLR 443. The Honble High Court came to the conclusion as follows :-
5. From what has been quoted above, it is clear that the comments and opinion of the Central Vigilance Commission were taken into account by the Disciplinary Authority. The opinion of an august body like the Central Vigilance Commission would obviously carry great weight with the disciplinary authority in reaching a final conclusion. At any rate, the possibility of such an influence cannot be negatived.
6. In this view of the matter, I find that the impugned order, Annexure D, cannot be allowed to stand. On this short ground, I declare that the impugned order, Annexure D, is bad at law and is inoperative. 95- To sum up, it is clear that while consultation with the Union Public Service Commission is a Constitutional provision through Article 320 (3) (c) of the Constitution, the consultation with U.P.S.C. may or may not be availed of by the Disciplinary Authority, or the appellate Authority, or the Revisional/Review Authority, since, as has already been held by the Honble Courts in numerous cases, as cited above, such consultation is not mandatory, and even the advise tendered by the Union (or State) Public Service Commission is not binding upon any of the statutory authorities involved in the process of conducting and concluding a departmental disciplinary enquiry.
96- Further, even though the jurisprudence on the jurisdiction of the Central Vigilance Commission, first as a non-statutory body, and then as a statutory body under an Ordinance, and, then again as a non-statutory body, and then as a statutory body under the Central Vigilance Commission Act, 2003, has developed along with the development of the case law on the CCS (CCA) Rules, 1965, the framing of which had followed the creation of Central Vigilance Commission by one year, yet, since even as yet no amendment has been brought about by the legislature in the body of the CCS (CCA) Rules, 1965,to incorporate the Central Vigilance Commission at any stage / pedestal above or below the Disciplinary Authority, or the Appellate Authority, or the Revisional/Review Authority as prescribed in the CCS (CCA) Rules, 1965, any consultation with, or seeking the opinion from the Central Vigilance Commission in regard to the disciplinary inquiry matters, is illegal, and uncalled for, and is hereby declared as ultra vires.
97- The CVC cannot be allowed to abrogate to itself power without responsibility. While the incumbent officers functioning as the Inquiry Officer, the Disciplinary Authority, the Appellate Authority and the Revisional / Review Authority, as the case may be, are all enjoined by the statute and subordinate legislation to function in quasi judicial capacity in the conduct and conclusion of a disciplinary enquiry, and to apply their mind alone, independently, without heeding to any outside instructions or influence, as is wont of persons acting in judicial or quasi-judicial capacity, no such legal / statutory duty has been cast upon the CVC in respect of giving any opinions in the matters related with the conduct and conclusion of departmental enquiries, by any portion of the law, even the Central Vigilance Commission Act, 2003, or the CCS (CCA) Rules, 1965, or any other statutes, rules or regulations issued in this regard. The Central Vigilance Commission cannot therefore be allowed to enjoy un-bridled power without responsibility, and assume or have a role of a prosecutor, giving its opinions in between the quasi judicial functions of the various stages of statutory authorities involved in the conduct and conclusion of a disciplinary inquiry, in between the prescribed stages of decision making from the level of Inquiry Officer, to the Disciplinary Authority, to the Appellate Authority, and to the Revisional / Review Authority. Moreover, any such examination of the files and records of a particular disciplinary enquiry case by the Central Vigilance Commission in between the various statutorily prescribed stages of the disciplinary enquiry, would be behind the back of the delinquent Government Officer, and without giving him an opportunity of being heard. Therefore, the expression of any opinion or advise about the guilt or otherwise of the delinquent by the Central Vigilance Commission is entirely against the Common Law principles of natural justice, as well as being against the rules for the conduct of disciplinary inquiries framed under Article 311 of the Constitution, and also against the Fundamental Rights of the concerned delinquent Government servants under Article 14 of the Constitution of India. The issue raised at para 40 (e) / ante is therefore answered accordingly.
98 to 99xxxxxxxxxxxxxx(Not reproduced here).
100- It is further observed that the Central Bureau of Investigation also has, in its CBI (Crime) Manual, 2005, provided for having arrangement or tie-up with the State Police, or with the State Level Anti-Corruption or Vigilance set-up, so that, without waiting the Central Bureau of Investigation to move in,the State Police may take an immediate action in respect of certain circumstances as enumerated in Para 1.11 of Chapter I of the Central Bureau of Investigation Manual, 2005, as follows :
1.11 It has also been agreed that the State Police or Anti Corruption / Vigilance set up may take immediate action in respect of the Central Government Employees in the following circumstances :-
a. Where there is a complaint of demand of bribe by a central government employee and a trap has to be laid to catch such employee red-handed, and there is no time to contact the Superintendent of Police concerned of the CBI, the trap may be laid by the State Police / Anti Corruption or Vigilance set-up and, thereafter, the CBI should be informed immediately and it should be decided in consultation with the CBI whether further investigation should be carried out and completed by the State Police or by the CBI.
b. Where there is likelihood of destruction or suppression of evidence if immediate action is not taken, the State Police / Anti Corruption or Vigilance set-up may take necessary steps to register the case, secure the evidence and, thereafter, hand over the case to the CBI for further investigation.
c. Information about cases involving Central Government employees, who are being investigated by the State Police / Anti Corruption or Vigilance set-up, should be sent by them to the local CBI branch, Head of the department and / or the office concerned as early as possible but, in any event, before a charge sheet or a final report is submitted.
d. All cases against Central Government employees which are investigated by the State Police / Anti Corruption or Vigilance set up and in which it is necessary to obtain sanction for prosecution from a competent authority of a Central Government Department shall be referred to the competent authority directly under intimation to the CVC. 101- This procedure can be continued to be adopted in respect of the criminality aspect of corruption, but its influence or overlapping with the aspect of departmental proceedings cannot be allowed at any stage whatsoever, in any manner whatsoever.
102- A few more points may perhaps require / need to be added here. Many States have created the office of an Ombudsman, or the Lokayukta, and the Parliament has for consideration before it a Bill introduced before the Lok Sabha for the introduction of an Omnipotent Central Ombudsman, or Lokpal. One stream of social activists, who are quite vocal in this regard, had even drafted their own parallel Jan Lokpal Bill, and are trying to influence the Parliament through all means fair and foul for their version of the Jan Lokpal Bill alone to be considered and passed by the Parliament. Their objectives and intentions are good, as they believe that such an omni-potent Jan Lokpal would help in curbing corruption in the Government at all levels, and they also believe and state that the people of India in general are behind their version of an omni-potent Jan Lokpal authority being created. The Standing Committee of the Parliament has been recommended for Constitutional Authority status to be given to this upcoming omni-potent Ombudsman.
103- However, it may be made clear here that while the task of finding out the cases of corruption, and individual Government servants guilty of corruption, and locating such individuals liable to be held responsible, and trying to prosecute them, which is presently a function of the Vigilance Wing or Sections of the different Ministries and Departments / Organizations of the Union of India, and all the States, can perhaps be entrusted to and performed by such an Ombudsman, a Lokpal or a Jan Lokpal, either in abrogation of the powers of the CVC, or in addition to the powers already given to the CVC, or by bringing CVC under it. However, it is hoped that before the Parliament proceeds ahead for passing such amendment to the Constitution of India, it would do well for the Government to remind the Parliament that this Nation takes pride in having maintained its purity of purpose in the Common Law principles of natural justice being followed in this country.
104- Even the United Kingdom, from where the Common Law Principles were inherited by India, has, over the years, under the influence of the European Commission, and in order to bring their Acts and Rules in the line with their Treaty Obligations under many European conventions, diluted the purity of the Common Law principles in the laws as prevalent as on today in the United Kingdom. In the United Kingdom, itself, over the past 10-15 years, the Common Law principles are being sacrificed in the new enactments passed by the Mother of all Parliaments, the Parliament of the United Kingdom, and the European principles of Civil Law are creeping into (and have actually already crept into) the legal system of the United Kingdom. Under the European system of Civil Laws, a total separation of prosecution and judicial functions is not essential, particularly neither in France, and nor in Italy, where the extreme form of Prosecutor-Judges is in force, and in vogue. India so far does not have that stream of Civil Law principles flowing in any portion of the laws enacted so far in this country.
105- Therefore, even the Lokayuktas at the State level, or the proposed Lokpal / Jan Lokapal at the National level, would have to be very resolutely and consciously kept away from the realm of all the quasi judicial functions associated with conducting and concluding a disciplinary inquiry against the delinquent Government officials, and punishing them only if the guilt of the delinquent Government official is established after the complete statutory process of quasi-judicial functions having been performed by the Inquiry Officer, the Disciplinary Authority, the Appellate Authority, and / or the Revisional Authority, as the case may be, has been gone through. In no case can the Lokayukta at the State level, or the proposed Lokpal or Janlokpal at the Union of India level, be allowed to transgress these limits, and to become, or to try to become, both a prosecutor and a judge.
106- It is a cardinal principle of our Constitution that no authority howsoever highly placed, and no authority howsoever lofty in its objectives, can claim to be the sole judge of its own powers, and to decide as to whether its actions are within such powers, as laid down by the Constitution of India. If a State Lokayukta, or the Central Lokpal/ Jan Lokpal has to be made powerful, it can have all the powers of detection of corruption and misfeasance on the part of the Government servants, or powers to take steps to suggest to prosecute them. But, they cannot have any powers associated with the process of punishing such cases of corruption / misfeasance, and cannot be involved in the statutorily prescribed process of imposing any penalty on the delinquent Government officials, which process can only be gone through by the prescribed statutory authorities, after having scrupulously followed the rigorous procedure prescribed for holding and concluding the departmental inquiries under the CCS (CCA) Rules, 1965, and other parallel rules at the State level.
107- Such a Lokayukta at the State level, and a Lok Pal / Jan Lokpal at the Central Level, can have a role in prosecuting corrupt officials, and to file complaints, and, perhaps, even assist the prosecution counsel before the trial Courts. But they can have no role at all in departmentally punishing the corrupt officials, and the powers under Article 311 of the Constitution, to dismiss, remove, diminish in rank, or otherwise impose a penalty, shall have to be continued to be exercised by only the four statutorily prescribed authorities concerned, un-influenced by the Lokayukta/Lokpal/Jan Lokpal.
108- One shudders when one reads in the news papers about the suggestion of some over-zealous persons from the so-called Civil Society that it should be proposed that the State level Lokayukta, or the Central Lokpal / Jan Lokpal should have powers to attach the property of delinquent Government officials, and take coercive methods against them, even before and without giving them an opportunity of being heard. One is astonished to see as to the level of deviation from the principles of Common Law, and even the much different principles of Civil Law, as prevalent in the European Continent, which the proponents of such draconian provisions are espousing / proposing. One only hopes that any such suggestion would be nipped in the bud as obnoxious, and shown the contempt which it deserves by the Parliament itself also. The Constitutional matrix in India, and the universally accepted Criminal Jurisprudence the world over, specifically stipulates the exclusion of any form of bias. To ensure this, a separation of the overall functions into investigation, prosecution, and then only Judging, is brought out through various methodologies and vehicles. The only exceptions are when Legislature acts under its Privilege Jurisdiction, and Judiciary acts under its Contempt Jurisdiction. Therefore, processes and procedures in Administrative Law must ensure certain exclusivity in each of the stages of the process, whether by bringing in different organs to bring about this, or by any other adequately reasonable and legal process.
109.xxxxxxxxxxx(Not reproduced here) 110- One issue which arises is regarding the time from which these observations and directions/orders regarding the role of C.V.C. in departmental proceedings could be made applicable. As was observed by Justice K. Ramaswami in his consenting but clarificatory comments in the Constitution Bench judgment in Managing Director, ECIL, Hyderabad vs. B. Karunakar, (1993) 4 SCC 727 : AIR 1994 SC 1074 : 1994 (1) LLJ 162:JT 1993 (6) S.C.1, in paragraph 67, when judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions, or prospectively to the transactions in future only.
It was observed by the Honble Supreme Court that prospective overruling limits the application of the principle to only the future situations, and excludes the application of the principle to situations which have arisen before the decision was evolved. It was mentioned by the Apex Court that the Supreme Court of the United State of America has consistently held that the American Constitution neither prohibits nor required retrospective effect, and, therefore, it is for the Court to decide, on a balance of all relevant considerations, whether a decision overruling a previous principle should be applied retrospectively or not. It was further observed by the Honble Supreme Court that the benefit of the decision must be given to the party before the Court, though applied otherwise to future cases from that date prospectively, and its benefits may not be extended to the parties whose adjudication had either become final or matters are pending trial or in appeal. In this context, it was observed by the Honble Supreme Court in para 73 of that Constitution Bench judgment as follows:-
73. ..This Court would adopt retroactive or non-retroactive effect of a decision not as a matter of constitutional compulsion but a matter of judicial policy determined in each case after evaluating the merits and demerits of the particular case by looking to the prior history of the rule in question, its purpose and effect and whether retroactive operation will accelerate or retard its operation. The reliance on the old rule and the cost of the burden of the administration are equally germane and be taken into account in deciding to give effect to prospective or retrospective operation. 111- The Honble Supreme Court has approved the doctrine of prospective overruling where it is imminently conducive to public interest in the cases Bapuram vs. C.C. Jacob, (1999) 3 SCC 36 and in Y.V. Rangaiah vs. J. Sreenivasa Rao, (1983) 3 SCC 284: AIR 1983 SC 852 : 1983 (2) LLJ 23. Also in the case of Ajeet Singh Singhvi Vs. State of Rajasthan, (1991) Supp.(1) SCC 343 : 1991 (1) SCR 579 : 1991 (2) LLJ 336, it has been laid down by the Honble Supreme Court that the Governments interpretation of its own Rules, and the policy decisions made thereunder should be respected by the Courts and Tribunals.
112- However, while deciding the Civil Appeal No.8568 of 2002 Union of India & Anr. Vs. I.P. Awasthi & Ors., on 16th February, 2006, the Honble Supreme Court had clarified that the doctrine of prospective overruling pertains only to the powers of the Honble Supreme Court itself, and that in respect of the Central Administrative Tribunal there is no such doctrine available for exercise of its powers.
113- Therefore, even though we may have wanted to make our findings / observations only prospective in nature, and to state that the status of the cases which have already been decided in past, in which the Central Vigilance Commission or the C.B.I. opinion had been sought and considered / taken into account by the statutory authorities, namely the Disciplinary Authority, or the Appellate Authority, or the Review/Revisional Authority, should not be affected by our orders and discussion / findings as above, but we find that we do not have any such powers, since the doctrine of prospective overruling is not at all available to us in the Administrative Tribunals Act, 1985, for exercise of powers to make our judgments applicable only prospectively in this regard.
114- Therefore, till either the Government of India comes out with the necessary clarifications of its previous instructions in this regard, or the Honble Supreme Court applies its mind to these issues, and decides to either apply or not to apply the doctrine of prospective overruling, which is within the powers of the Honble Supreme Court alone, it is clear that these orders will be operative to all cases of disciplinary proceedings in which the opinion of Central Vigilance Commission or the C.B.I. has been obtained by the departmental authorities, and taken into consideration by the statutory authorities, which has been declared by us to be ultra-vires and un-constitutional in the preceding paragraphs.
115- Incidentally, in this case, the Inquiry Officer was not from within the Vigilance set-up of either the Department of Telecom, or the BSNL. Therefore, it cannot be said that the report of the Inquiry Officer, and the findings of the Inquiry Officer were vitiated. However, since the Inquiry itself was instituted through a charge memo issued by the Vigilance Section, which could not have been the Disciplinary Authority of the applicant as a delinquent Government official, the whole process of conduct of the disciplinary inquiry, and all the impugned Annexures, are quashed, and the respondents are directed to restore full pension of the applicant, and pay to him all arrears of the pension deducted from his eligible pension, along with interest @ 6% per annum on all such arrears. The O.A. is allowed with the observations made as above, but there shall be no order as to costs.
(Emphasis supplied).
37. Here in this case, we have to reiterate the view taken at the Jodhpur Bench in the above cited case. It is very strange that in the instant case everybody other than the Disciplinary Authority has been applying its mind and issuing directions, commands and advice to the Disciplinary Authority, as to how to view the disciplinary enquiry case against the applicants before us even, though the Enquiry officer, who is a delegatee of the Disciplinary Authority, has given his unequivocal findings as already reproduced in para 17/above. It must be reiterated here that there is a complete separation of powers, functions, responsibility in between the CVC Act, 2003, and the CCS (CCA) Rules, 1965. Even though the CVC was brought into being in the year 1964, and the concerned Act was passed in the year 2003, as explained in detail in the Jodhpur Bench judgment reproduced above, even after 38 years of their co-existence, while passing the CVC Act 2003, the Parliament did not think it appropriate to provide for any role for the CVC, in the conduct of the departmental enquiries, and the CVC Act, 2003, does not even mention the CCS (CCA) Rules, 1965, anywhere.
38. Further, as was pointed out in the Jodhpur Bench judgment as reproduced above, even after 48 years of their co-existence till today, no portion of the CCS (CCA) Rules, 1965, prescribes for the CVC to be involved in any process of consideration by the Disciplinary, Appellate or Revisional/Reviewing Authorities in the conduct and conclusion of the departmental enquiry proceedings.
39. It has, therefore, to be reiterated that the case of any delinquent Government official can be considered only by the minds of three or four individuals concerned, the first and foremost being the Disciplinary Authority of the delinquent Government official. Once the Disciplinary Authority has arrived at a conclusion that there is a prima-facie case for proceeding against the delinquent Government official, he can either undertake the departmental enquiry proceedings to be conducted by himself, or appoint a delegatee in the form of an Enquiry officer to conduct the departmental enquiry, on behalf of the Disciplinary Authority of the delinquent Government official. In this manner, if an Enquiry Officer is appointed, his mind becomes the second mind of an individual which can be applied to consider the delinquency and guilt or otherwise of the delinquent Government official. The report of the Enquiry Officer, along with the comments there upon by the delinquent Government official, after a copy of that enquiry report is furnished to him, becomes the material for the Disciplinary Authority of the delinquent Government official to decide upon the quantum of punishment to be imposed upon him.
40. In respect of Group A officers, before such a final decision is taken, the provisions of the Constitution, as discussed in detail in the Jodhpur Bench judgment reproduced above, provide for the UPSC to be consulted on the quantum of punishment before the quantum of punishment is decided by the Disciplinary Authority. But Part XIV Chapter II Articles 315 to 323 of the Constitution of India do not anywhere provide for the UPSC to sit in judgment over the process or procedure of the conduct of the disciplinary enquiry, or to comment upon that, or to recommend for a fresh enquiry, or to recommend for a further de-novo enquiry, or a fresh enquiry to be held. The only Constitutional role assigned to the UPSC is to make its recommendation regarding the quantum of punishment, and that recommendation also is not binding on the Disciplinary Authority, to be necessarily followed, as per the Constitutional provision itself. The Disciplinary Authority can totally disagree with the UPSCs advice, and apply its own mind to decide to impose any other different quantum of punishment, as it may deem fit.
41. Leaving aside the UPSCs advice, the 3rd mind of an individual to be applied to the case of a delinquent official is that of the Appellate Authority, to whom an appeal against the order of punishment passed by the Disciplinary Authority lies. The Courts have repeatedly held that the Appellate Authority has co-extensive powers with the Disciplinary Authority to appreciate all the evidence as produced during the course of the departmental enquiry, and the reply of the applicants submitted to the Disciplinary Authority, and his appeal Memorandum submitted to the Appellate Authority, and apply its own mind to arrive at its own finding about the quantum of punishment in a disciplinary enquiry.
42. Since the Enquiry Officer is a delegatee of the Disciplinary Authority, the rules and procedure prescribe and permit for Disciplinary Authority to pass a non-speaking order, if on application of its mind, it agrees with the conclusions arrived at by the Enquiry Officer, and what remains for the Disciplinary Authority then is to only propose a proper punishment, and send the proposal regarding imposition of that punishment to the UPSC for its advice. In that sense, Disciplinary Authority is the only authority which, after having framed the Memorandum and Article of Charges initially, need not pass a detailed speaking order, after the enquiry report of the Enquiry Officer is available in its hand, since the Enquiry Officer is his own delegate, and can straightaway apply its mind to that enquiry report, and the comments of the delinquent Government Official on that report, if the Disciplinary Authority agrees with those disciplinary enquiry findings. The orders of the Disciplinary Authority are thus required to be speaking orders only when the Disciplinary Authority decides to disagree with the opinion or conclusion of his delegate, the Enquiry Officer, when it may record a speaking and self sufficient Note of Dissent, and then that Note of Dissent has to be served upon the delinquent official, along with a copy of the report of the Enquiry Officer, for eliciting his comments, and after receiving reply thereupon from the delinquent Government official, it becomes imperative for the Disciplinary Authority to once again pass a speaking and self-sufficient order, since it has chosen initially to disagree with the report of the Enquiry Officer and issue a Note of Dissent. Therefore, under the law of the land as laid down so far, the order of the Disciplinary Authority for imposition of punishment has to be a speaking order only if it has chosen to issue a Note of Dissent, and not otherwise, when it has applied its mind and agreed with the findings of the Enquiry Officer.
43. However, the role and the responsibilities of the Appellate Authority are more onerous. It has before it many documents to peruse and apply its mind, because of what all has transpired right from the stage of issuance of Memorandum and Articles of Charges, the disciplinary enquiry proceedings records, and the report submitted finally by the Enquiry Officer, the Agreement Note with that or the Note of Disagreement with that, as recorded by the Disciplinary Authority, and, in the case of Group A officers, the opinion of the UPSC regarding the quantum of punishment, and the ultimate decision thereafter of the Disciplinary Authority upon the quantum of punishment, which the Disciplinary Authority finally decides upon to impose upon the delinquent Government official, and lastly the appeal of the delinquent official itself, against such orders of punishment. The Appellate Authoritys order, therefore, has to be of necessity to be a self-sufficient speaking order, whether it agrees with the conclusion of the Enquiry Officer, as agreed to or disagreed with by the Disciplinary Authority, and confirms the quantum of punishment levied upon the applicant, or decides to disagree with the report of the Enquiry Officer, or the conclusion of the Disciplinary Authority upon that, and the advise of the U.P.S.C., if any, and decides to enhance or reduce the quantum of punishment to be imposed upon the delinquent official, or decides to exonerate him altogether.
44. The 4th mind which can be applied to the case of the delinquent Government official can be of the officer or authority, who is the Reviewing Authority or Revisional Authority, if such a review or revision is provided for in the case of the Rules for conduct of disciplinary enquiry as applicable to the delinquent Government official concerned. The Review or Revisional Authority does not have an equally onerous responsibility, and the Review or Revisional Authoritys order need not be a sufficiently detailed speaking order, as is the case in the case of the Appellate Authority, though the Revisional/Review Authority may agree or disagree with the findings arrived at by the Enquiry Officer, the Disciplinary Authority, and the Appellate Authority, and after considering the review representation or revisional representation of the delinquent Government official, but nothing under the Rules prohibits the Review or Revisional Authority also from passing an equally detailed self-sufficient speaking order, which is always a better or safer course of action for it to adopt.
45. However, as was mentioned in very great detail in the Jodhpur Bench judgment in Prem Prakash (supra) as reproduced above, there is no possibility or even a concept in the CCS (CCA) Rules, 1965, for any 5th mind to be applied to the case of the delinquent Government official. At every stage, even when no departmental enquiry proceedings have been initiated against him, every Government servant must be in the know of as to who is his Disciplinary Authority, who is his Appellate Authority, and who would be the Review or Revisional Authority, in case any departmental proceedings are initiated against him at any stage. He obviously cannot anticipate the identity, or the post, or the level of seniority of the Enquiry Officer, but as per the provisions of the CCS (CCA) Rules, 1965, and principles of natural justice, the Enquiry Officer has to be at least one level senior to the delinquent Government official. As has been clarified by the Honble Apex Court in numerous cases, the Disciplinary Authority need not be the Appointing Authority himself, as the function of the Appointing Authority is different and the role, functions and responsibility of the Disciplinary, Appellate and Revisional Authorities are separate.
46. Jodhpur Benchs judgment in Prem Prakash (supra) must be reiterated here to state that all the phases of 1st stage advice, and 2nd stage advice created by the CVC through its letters and instructions, are contrary to the CCA (CCA) Rules, 1965, and the Law as laid down in this behalf. The relevant case-law in this connection had already been cited in the Jodhpur Benchs judgment in Prem Prakash (supra), as reproduced above, and need not be cited here once again by us. However, the proof of the correctness of the Jodhpur Bench judgment can be seen in the instant case also, where a Director level officer of the CVCs office has in one single paragraph, in a totally non-speaking manner, brushed aside the considered opinion of the Disciplinary Authority of the applicants before us, and has opined, without giving any reasons therefor, for the Disciplinary Authority to initiate disciplinary proceedings against the present applicants before us, and the other persons covered in the impugned order, covering total 07 people, and has also gone ahead to opine ab-initio itself that harshest penalty should be imposed upon them. Such a non-speaking order or opinion of an officer of the CVCs office, without giving any reasons or logic as to how such opinion was arrived, at cuts at the very root of the principles of natural justice, and, is, therefore, de hors the law, and abhorrent in the eyes of law. This particular case is once again a classic example, like the one before the Jodhpur Bench, where the Disciplinary Authority was forced to change its considered opinion, in view of the cryptic and non-speaking advice received from an officer of the CVCs office.
47. As was held in the Jodhpur Bench judgment in Prem Prakash (supra), the CCS (CCA) Rules do not permit the application of any 5th mind to the facts of the case against the delinquent Government official, other than the minds of the Disciplinary Authority, the Enquiry officer who is a delegate of the Disciplinary Authority, and after the orders of the Disciplinary Authority are passed with or without any Note of Disagreement to the report of the Enquiry Officer, the mind of the Appellate Authority, and that of the Reviewing or Revisional Authority, in case a Review or Revision lies. It has also been mentioned in Paragraph-71 of the Jodhpur Bench judgment that though the Rules as prescribed in this regard may not have so prescribed, the Common Law principles of natural justice would require that the Presenting Officer in a disciplinary enquiry cannot also be an official from the Vigilance Wing or section, even though he is merely an official presenting the case as had been built up by the concerned Vigilance Wing or section of the organization, and to try to prove the case of the administration before the Enquiry Officer concerned.
48. However, in the instant case before us, a gross irregularity and illegality had been committed in the sense that the Presenting Officer had not at all been appointed by the Disciplinary Authority, who had only appointed the Medical Superintendent of Safdarjung Hospital as the Enquiry Officer, which the Disciplinary Authority is required as per Rules to appoint. Even in the order impugned before us in the present OA, while ordering a de-novo enquiry, the respondent-Disciplinary Authority has appointed a Presenting Officer. However, in the enquiry which was earlier conducted against the present applicants, the CBI Inspector, who had looked into the criminality aspect of the case, and had failed to find any aspect of criminality in the case against the applicants, suo-motu became the Presenting Officer before the Enquiry Officer. This is entirely abhorrent to the settled principles of administrative law, and ought not to have been allowed to happen by the Disciplinary Authority.
49. Also, as has been reproduced by us in Paragraphs 13, 14 & 15 above, the Sub-Inspector of CBI, Anti Corruption Branch, Shri Lalit Kaushik, had given his brief as a Presenting Officer as if he was the officer concerned with arriving at conclusions regarding the delinquency of the applicants, which again is totally abhorrent under law. He has gone to the extent of saying that he has examined 25 witnesses as PW-1 to PW-25, but, as is apparent from the report of the Enquiry Officer himself, none of these Prosecution Witnesses appear to have been produced before the Enquiry Officer for giving their evidence. It is only with the statements of 25 Prosecution Witnesses, recorded by the Anti Corruption Branch of the CBI, which had been treated as a part and parcel of the disciplinary enquiry proceedings against the applicants, which is totally abhorrent to the principles of natural justice.
50. It is quite obvious that the applicants before us were not at all given any opportunity to cross-examine any of those 25 witnesses PW-1 to PW-25, in front of the Enquiry Officer, the Medical Superintendent of Safdarjung Hospital, which right of cross-examination of PW is the very core and crux of the principles of natural justice which are required to be followed in the conduct of the disciplinary enquiry. As has been reproduced at para-15 above, the said Shri Lalit Kaushik, SI, Anti Corruption Branch of CBI, had the cheek to state that during the enquiry proceedings, no defence witnesses were produced by any Charged Officer, while it is not clear as to whether any such disciplinary enquiry proceedings were ever conducted at all in a fair manner in front of the Enquiry officer, the Medical Superintendent of Safdarjung Hospital.
51. Further, as is apparent from the report of the Enquiry Officer, as reproduced in Paras-16 & 17 above, the Enquiry Officer has chosen only to examine and comment upon the written brief submitted by the SI of Anti Corruption Branch of CBI, who had himself chosen to be the so-called Presenting Officer, as he could not have been appointed as a Presenting Officer in a disciplinary enquiry case. Neither the applicants nor the respondents have filed any paper whatsoever, which may go to show that the said SI Shri Lalit Kaushik, or his predecessor Shri Azad Singh, had ever been appointed by the Disciplinary Authority to be the Presenting Officer in the disciplinary enquiry case, which is not possible to be done in view of the Paragraph-71 of the judgment of the Jodhpur Bench in Prem Prakash (supra).
52. It is also very strange that the Enquiry Officer has held that the Articles of Charges against all the officers have been held to have been proved only on the basis that the self-appointed Presenting Officer has in his report affirmed that none of the Charged Officers had produced any evidence to prove anything contrary to the Articles of Charges. It is apparent from this that no formal enquiry proceedings were properly conducted before and by the Enquiry officer, by recording day to day order sheet of any such disciplinary enquiry, and allowing the applicants before us to cross-examine any of the 25 so-called PWs, PW-1 to PW-25, all of whom appear to have been examined by the SI of Anti Corruption Branch of CBI only in the CBI office. This conclusion of ours is further strengthened by the fact that it has come in the pleadings that some of the so-called Prosecution Witnesses had also retracted from the statements that they had given earlier before the CBI, when they were called to the CBI office later on, which fact has been recorded by the Disciplinary Authority, while disagreeing with the finding of the Enquiry Officer. The Enquiry Officer himself also has, even after holding all the Articles of Charges to have been proved, stated as follows:-
However, proper staffing at all levels is critically essential to maintain records. There has been poor staffing at CJH, Tihar, during the period under inquiry.
(Emphasis supplied).
53. This mitigating circumstance was not at all taken by him into account while coming to a conclusion regarding the guilt of the delinquent Government officials, some of whom are applicants before us. Even when the Enquiry Officer had come to the conclusion that there had been poor supervision, lack of maintenance of proper records, and the indents and supplies were managed on verbal orders, still he had held that the articles of charges against each of the COs, stand proved. In the very next paragraph, he has gone on to once again say, as reproduced below, that while managing hospitals and emergencies, it is sometimes essential to keep extra stock of drugs and materials to tide over exigencies, and, therefore, the procurement of drugs/materials in excess of the budget may be justified by stating as follows:-
However, it is not possible to comment on any misappropriation because total recording system is wanting. While managing hospitals and emergencies, it is sometimes essential to keep extra stock of drugs and materials to tide over exigencies. Therefore, procurement of drugs/materials in excess of the budget may be justified and the inward claims cleared in the next annual budget, while keeping the full records and its justification for such procurement. This has been fairly proved by the witnesses and the available records, as detailed above.
(Emphasis supplied)
54. The Enquiry Officer concluded his report by stating that there is a dire need for Staff Inspection Unit (SIU), and looking at the entire system of procurement, both at CJH as well as at MSO, to avoid such mismanagement, and resultant systems failure. Thus, when it was his conclusion that it was a systems failure, the Enquiry Officer had thereby failed in his duties to fix individual delinquency of the delinquent Government officials who were before him, when he was functioning as the Enquiry Officer. In any disciplinary enquiry, unless and until the Enquiry Officer is able to fasten any particular delinquent act to a delinquent Government official, and to hold him responsible for having indulged in such a delinquent act knowingly, willfully and deliberately, a finding of guilt cannot be arrived at in a disciplinary enquiry. System failures cannot fasten delinquency upon the delinquent Government officials. Systems failures can only act to absolve the delinquent Government officials from any charges of delinquency that may have been brought against them, because if the systems had failed, and it was beyond their powers, or they could not have set right the system by themselves, they cannot, therefore, be held to be responsible for any events which were the results of the systems failure.
55. Here, further irregularities have occurred in the form of the Disciplinary Authority having been literally forced by the CVC, through its first stage advice, to start or initiate major penalty disciplinary proceedings against the applicants. It was not an independent application of mind on the part of the Disciplinary Authority by which a decision was taken to initiate major penalty disciplinary proceedings under Rule-14 of the CCS (CCA) Rules, 1965, against the applicants before us. Therefore the first so-called departmental proceedings against the applicants before us were themselves vitiated on this account.
56. Secondly, even after receiving the so-called report of the Enquiry Officer, the Disciplinary Authority came to the conclusion that no disciplinary action should be taken against them. However, as has been reproduced above, the 2nd stage advice tendered by the CVC again came to a conclusion, without giving any reasoning, logic or interpretation of any evidence brought on record, for imposition of a major penalty upon the applicants before us as delinquent Government officials. This was a classic case of the application of a 5th mind, that of CVCs Office, that too twice, which is not permissible under the CCS (CCA) Rules, 1965, as has been clarified and laid down in detail in the Jodhpur Bench judgment in Prem Prakash (supra).
57. The fact still remains even after the 2nd stage advice of the CVC, the Disciplinary Authority was still not convinced about the applicants before us having committed any delinquency, and since it even then disagreed with even the 2nd stage advice tendered by the CVC, it chose to refer the matter to the DoP&T. The DoP&T then, put together, became a 6th mind applied to the facts of the case, where also, once again without appreciating in detail any portion of the evidence brought out on record against the applicants, or consideration of any points submitted by the delinquent officials in reply to the Presenting Officers report, the DoP&T forced the Disciplinary Authority to change its earlier conclusion to let go of the applicants before us, and thus the DoP&T put the last nail in the coffin of the principles of natural justice, which coffin was prepared in this case by the respondents under CVCs influence, for the applicants before us.
58. The Disciplinary Authority was thereafter forced to seek advice from the UPSC on the basis of the available material on records. The Constitutional role of UPSC regarding deciding regarding the quantum of punishment, which can be imposed after conclusion of any disciplinary enquiry proceedings has been discussed in detail in the judgment of the Jodhpur Bench in Prem Prakash (supra). Here in this case, UPSC travelled beyond its Constitutional mandate, but, acting purportedly in the interest of justice, and also in the interest of principles of natural justice, the UPSC declined to issue any advice regarding the quantum of punishment, and pointed out the flaws and errors in the conduct of the disciplinary enquiry, which is not otherwise its Constitutional role.
59. However, the respondents have once again used the U.P.S.Cs advice as a handle to conclude as if the UPSC had ordered for a de novo disciplinary enquiry to be conducted against the delinquent Government officials, which had led to the impugned order being issued. After having gone through the UPSC advice, it is clear that the UPSC had not advised any de-novo enquiry. In fact, once the disciplinary enquiry proceedings have already been concluded, only a further enquiry by the same Enquiry Officer can be ordered by the Disciplinary Authority, and there is no provision for the scrapping altogether of an enquiry report already finalized and submitted before the Disciplinary Authority, without the latter taking any decision upon that, and to order for a de-novo enquiry to be conducted, through a fresh Memorandum and Articles of Charges, by appointing a new Presenting Officer, and a new Enquiry Officer.
60. The only course of action open to the Disciplinary Authority, after the Enquiry report had been submitted to it, is either to accept it, or reject it, and issue a note of disagreement or to order for a further enquiry. If the recommendation of the Enquiry Officer is for letting off the delinquent Government officials, and the Disciplinary Authority disagrees with it, it would issue a Note of Disagreement. Here, it was not that case. Even though an erroneous process, but the Enquiry Officer had recommended the charges against the delinquent Government officials having been proved, with which the Disciplinary Authority rightly disagreed, and was of the view that the charges were not proved against the applicants. In such a scenario, it was not necessary for the Disciplinary Authority to issue any Note of Disagreement also, and it could have just taken a decision to close the very enquiry itself, as is apparent from the language of the reference and recommendation made by the Disciplinary Authority to the CVCs office. It was only the 2nd stage advice of the office of the CVC, which forced the hands of the Disciplinary Authority to first approach the DoP&T for clarification, and to then refer the matter to the UPSC. In our eyes, the CVC had no business whatsoever to decide regarding the delinquency of the applicants, behind their backs, and without a proper role being assigned to it for giving such an advice, under the CCS (CCA) Rules, 1965.
61. Therefore, it is quite clear that in the instant case, there have been irregularities, illegalities and violations of the principles of natural justice at every stage of the conduct of the earlier disciplinary enquiry, and the Disciplinary Authority concerned has not been allowed to apply his mind independently, as is absolutely essential for the Disciplinary Authority to do, in a quasi judicial capacity, under the CCS (CCA) Rules, 1965. Therefore, the whole process of 2nd stage CVC advice, the DoP&T advice thereupon, and the UPSCs advice going beyond its Constitutional mandate, are all set aside as being illegal, and against the principles of natural justice, and against the Rules for conduct of disciplinary enquiries, as laid down in CCS (CCA) Rules, 1965. When the Disciplinary Authority has twice come to the conclusion earlier that no case of delinquency is made out against the applicants before us, the impugned order for conducting a de novo enquiry, on the same facts, without taking a decision on the earlier Enquiry Report, is also illegal, and against the CCS (CCA) Rules, 1965, and, therefore, the impugned order, ordering for conduct of a de-novo enquiry against the applicants is also set aside as being illegal and irrational.
62. Therefore, once again strongly reiterating the Jodhpur Bench decision in Prem Prakash (supra), it is once again held that the CVC has no role whatsoever to play in the conduct and conclusion of any disciplinary enquiry proceedings, for the officers of any level of seniority whatsoever, and that the CVCs entire self prescribed role of its 1st stage advice, or 2nd stage advice, is totally and absolutely contrary to the Law, Rules and Regulations, as prescribed under the CVC Act, 2003, itself, read with the CCS (CCA) Rules, 1965, both of which do not mention each other in the body of the Act of 2003, and the body of the Rules, 1965, as discussed in detail in the Jodhpur Benchs judgment also.
63. It may, however, be mentioned here that the judgment and order of the Jodhpur Bench of this Tribunal dated 14.12.2011 has been appealed against by the Department of Telecommunications against the orders of restoration of pension of the applicant therein. CVC has not filed any appeal against the said order, and neither has DoP&T. Therefore, firstly since the judgment has not yet been set aside, and has only been stayed, it is still a valid judgment, and can be cited and relied upon by us. Secondly what is challenged before the Honble High Court of Rajasthan at Jodhpur is the restoration of the order of cut in pension of the applicant therein, Shri Prem Prakash, and not the position of law as regards consultation with the CVC is concerned. Therefore, we would be fully within our rights to totally rely on those observations in this order.
64. The Constitutional role of UPSC is limited and confined only to give an advice regarding the quantum of punishment, When such an advice is sought in respect of a Group A officer by his Disciplinary Authority, since UPSC is the statutory/Constitutional body created for selection/recruitment and recommending appointments of Group A officers, and this is a Constitutional protection available to the group A officers. However, the Constitutionally prescribed role of UPSC does not at all allow or enable it to comment upon the merit of the enquiry conducted, and to opine for either a further enquiry, or a de novo enquiry to be held. If the enquiry has been defective, and such defects in the conduct of the disciplinary enquiry have not been noticed by the Enquiry Officer, and also the Disciplinary Authority, the UPSC can, under the Constitutional powers given to it, simply state that since the departmental enquiry itself was not conducted with the proper procedure having been followed, and as per the principles of natural justice, and therefore it does not recommend the imposition of any penalty whatsoever upon the delinquent Government officials. But, it does not lie within the Constitutional powers of the UPSC to suggest to the Disciplinary Authority that since there has been a lacuna or illegality or irregularity in the conduct of the disciplinary enquiry, a further disciplinary proceeding, or a de novo/fresh disciplinary proceedings, should be initiated against the delinquent Government officials. Any such recommendation or advice is beyond the pale of the Constitutional powers of the UPSC.
65. In the instant case, we find that the Enquiry Officer has himself given an elaborate conclusion as to how there were procedural lapses in the procedure prescribed regarding issuance of medicines from the GMSD, which need to be rectified, so that the type of over drawal of medicines which took place in the year 1993-1994, and impacted the budget of 1994-95 also, does not recur. We are not convinced that the delinquent Government officials might have been fully innocent, and it is quite possible that they may have taken delivery of excess medicines worth crores of rupees, nearing their date of expiry, from the suppliers who wanted to dump such medicines nearing their date of expiry, for some extraneous considerations or reasons. But this can only be a conjecture, as such charges have not been brought against the applicants before us, and have never been proved against the applicants before us. And, in the absence of any such charges having been brought and proved against them, we have to uphold their rights as delinquent Government servants, in whose cases the department had miserably failed to prove their alleged delinquency.
66. We also must uphold their right for the aspect of their delinquency to be considered only by the three/four minds as authorized under the CCS (CCA) Rules, 1965, i.e., the Enquiry Officer, the Disciplinary Authority, the Appellate Authority, and the Review/Revisional Authority, if it is so prescribed (which does not appear to have been prescribed in the case of the applicants). Therefore, the minds of any other individuals or organizations whatsoever, other than the three who could have considered the aspect of delinquency of the present applicants, could not have been applied to the facts of their case, and they could not have considered and opined upon the aspect of delinquency of the applicants before us behind their backs. In this case, both the Director of CVC, the DoP&T, as well as the UPSC, have taken it upon themselves to perform this task, which no Act, Rule or Regulation, whatsoever, or the Constitution, prescribes to be performed by them.
67. Even without the claimed equity with the case of P.B. Mondal (supra), who already stands acquitted of all the charges, as per the proceedings which took place at Guwahati Bench of this Tribunal, and then before the Guwahati High Court, as already reproduced above, but still whose name the respondents have chosen to include in the impugned order dated 18.04.2012, for ordering for a de-novo departmental enquiry, which perhaps amounts to a contempt of this Tribunal, as well as the Honble Guwahati High Court, we have no hesitation in stating that after having gone through the whole process of conduct of the disciplinary enquiry, as was conducted supposedly, and having perused the report of the Enquiry Officer, the fact of the Disciplinary Authority having initially itself held that the applicants were not at all guilty, that was the stage at which the disciplinary enquiry against the applicants ought to have been completed and concluded. The cryptic and non-speaking opinion of the Director, CVC, thereafter, was illegal and abhorrent in the eyes of law.
68. Further, even after that, the respondents chose to bring a 6th mind in the picture, by referring the whole case for the opinion of the Department of Personnel and Training also. The CCS (CCA) Rules, 1965, provide that the functions of the Enquiry Officer, the Disciplinary Authority, the Appellate Authority and the Review/Revisional Authority are all quasi-judicial in nature. Quasi-judicial functions have to be performed only by those sitting in the chair concerned in substantive capacity. Quasi-judicial functions cannot be performed by them by seeking opinions of outside authorities or persons, who are not concerned with the quasi-judicial proceedings, and who do not have a stake, or capacity, or legal standing, to perform any such quasi-judicial functions. Therefore, consultations with both CVC and DoP&T are categorically held to have been illegal in this case. We have already mentioned above that the UPSC had exceeded its Constitutional mandate in giving an opinion otherwise than on the quantum of punishment.
69. It may once again be reiterated that the quasi-judicial functions of the Disciplinary Authority, and the Appellate Authority, can be performed only by those persons who are posted in the substantive capacity in the chair concerned. In this context, in the case of Paresh Chandra Datta v. Collector of Calcutta and Ors. 1979 (1) SLR 44 (Cal.), the Honble Calcutta High Court had clearly laid down, in the context of CCS (CCA) Rules, 1965, itself, that an officer who is only acting in the place of the appointing authority, as a stop gap arrangement, while the former is on leave, is also not competent to perform the statutory functions, and a charge sheet issued by him is illegal. The Honble Calcutta High Court had further held that a charge-sheet issued by an officer holding concurrent charge, by way of stop-gap arrangement, had resulted in vitiating the departmental enquiry proceedings.
70. Further, the CCS (CCA) Rules, 1965, prescribe that if the Disciplinary Authority is not satisfied with the way that his delegatee, the Enquiry Officer, has conducted the disciplinary enquiry, the Disciplinary Authority may remit the matter back for further enquiry to his same delegatee, i.e, the Enquiry Officer. But when once the enquiry has been completed by the Enquiry Officer, and a copy of that Enquiry Report has been supplied (strangely with the copy of the CVCs opinion also, which opinion in itself was illegal) to the delinquent Government officials, and the delinquent Government officials concerned have given their representations against the enquiry report, and the Disciplinary Authority has thereafter decided, after considering the same, to drop the enquiry proceedings, the departmental proceedings ought to have attained a finality. But the CVCs Office has, thereafter, recommended for imposition of severe penalty, behind the backs of the delinquent Officers, and the DoP&T had also opined to go with the CVCs opinion, again behind the backs of the delinquent officials, and the UPSC has also crossed its Constitutional mandate in further going to point out flaws in the conduct of the departmental enquiry itself, and even thereafter, no final decision was arrived at by the Disciplinary Authority regarding imposition of any penalty, against which the delinquent Government officials could file an appeal to the Appellate Authority, we find that the Disciplinary Authority is now estopped from reopening the whole issue at this stage, and is estopped from ordered any de-novo enquiry whatsoever.
71. In any case, since the CCS (CCA) Rules, 1965, only provide for a further enquiry, and not a de novo enquiry, therefore, we have no hesitation in setting aside the impugned order dated 18.04.2012, ordering for a de novo enquiry to be conducted against the 07 delinquent Government officials, including the applicants before us, as being wholly illegal and abhorrent in the eyes of law.
72. Actually the process now started appears to be in the nature of a contempt of the Guwahati Bench of this Tribunal, and of the Honble Guwahati High Court also, inasmuch as it has tried to theoretically re-name P.B. Mondal also as a delinquent Government Official, who had stood fully exonerated by way of orders of the Guwahati Bench of this Tribunal, and the later orders of the Honble Guwahati High Court. For that reason also, the impugned orders cannot be sustained.
73. Therefore, we have no hesitation in allowing this O.A. The O.A. is, therefore, allowed, and the impugned order dated 18.04.2012 is stuck down as being illegal, and contrary to the provisions of Law, Rules and Regulations. But there shall be no order as to costs.
(V. Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) cc.