Central Administrative Tribunal - Delhi
Shri Y. P. Kataria vs Union Of India Through on 25 August, 2011
Central Administrative Tribunal Principal Bench OA No.2066/2008 New Delhi, this the 25th day of August, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Y. P. Kataria R/o 395, Sector-15 A, Noida (UP). . Applicant. (By Advocate : Sh. P. P. Khurana, Sr. Advocate with Ms. Sumita Tiwari) Versus Union of India through : 1. The Secretary Government of India Ministry of Communications and Information Technology, Department of Telecommunications, Sanchar Bhawan, 20, Ashoka Road, New Delhi. Respondent. (By Advocate : Shri R. N. Singh) : O R D E R : Dr. Ramesh Chandra Panda, Member (A):
Shri Y. P. Kataria, the applicant herein, is an officer of Indian Telecom Service (ITS) and was initially posted as Telecom District Manager (TDM), Guwahati during 1989 to 1992. He was promoted as General Manager in June 1997. On 9.10.2003, he was issued a Memorandum of Charges (Annexure-A2) alleging certain misconducts which were alleged to have been committed by him when he was Telecom District Manager, Guwahati during 1992. The Statement of Article of Charge reads as follows:-
STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI Y. P. KATARIA, THE THEN TDM, GUWAHATI NOW GENERAL MANAGER, HARYANA TELECOM CIRCLE Shri Y. P. Kataria while posted and functioning as TDM, Guwahati during 1992 committed gross misconduct in as much as he approved purchase of 278 kms of non-standard, non-DOT approved PVC insulated twin galvanized steel drop wire on three occasions from M/s B. R. Electricals, new Delhi at an exorbitant rate of Rs.6999/- per km as against the DOT assessed rate of Rs.1956.76 per km, without inviting tender, in excess of his delegated financial powers and passed defective bills, thereby causing huge loss to the tune of Rs.14,01,742/- to the Department.
Shri Y. P. Kataria, by his aforesaid acts, failed to maintain absolute integrity, devotion to duty and behaved in a manner unbecoming of a Govt. servant, thereby contravening Rule 3 (1) (i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
2. The applicant submitted his written reply vide his letter dated 7.06.2004 denying the charges. Consequently, the Disciplinary Authority conducted enquiry by appointing the Enquiry Officer and Presenting Officer. After a detailed enquiry, the Enquiry Officer vide his report dated 17.04.2007 (Annexure-A3 colly) held the charges as Not proved. The relevant part of the assessment of the case on the basis of evidence adduced during the enquiry and the ultimate finding arrived at, reads as follows:-
8.0 ASSESSMENT OF THE CASE ON THE BASIS OF EVIDENCES ADDUCED DURING THE INQUIRY:
8.1 It has been stated in the charge-sheet that the said PVC insulated twin galvanized steel drop wire purchased from M/s B. R. Electricals was non-standard unapproved item, non-evaluated by TEC/QA Wing of DOT. In this connection CO has pleaded that open tenders were invited by GMT, Kashmir who ensured that the wire to be supplied by M/s B. R. Electricals was tested and certified by an independent testing center working under the Ministry of Industry who had issued the test report which is available at Ex-D-39. the usefulness of the wire in hilly areas and jungle track was tested by J& K Circle before approving the same. The wire was not prone to theft because it did not have copper content which was the main cause of disruption of telecom services. C.O. has further submitted that this wire was purchased on the basis of tender approved by J&K Circle throughout the length and breadth of the country which goes to prove the usefulness of the item,Ex.D.1 to Ex.D-24 are the purchase orders placed on M/s B.R.Electricals by various CGMs, GMs, TDMs and TDEs. Ex. D-32 shows that a meeting was conducted by MOS ) in which the use of PVC insulated twin galvanized wire was favourably mentioned . On the basis of the above said meeting, CGMT Tamil Nadu circle vide his circular letter (Ex.D-32) directed all CMs/TDMs/TDEs in his circle to procure the said wire for their requirements. Similarly, GM (Dev), Bombay directed all field units to purchase PVC insulated twin galvanized steel Drop-wire because of the following benefits:-
It can be erected on a single insulator on the existing alignment.
It is suitable for opening Public Telephones.
It is suitable for hilly terrain and congested areas.
Possibility of theft will be reduced since it is not copper.
Fault incidence will come down since the wire is insulated.
Similar letters have been issued by the other Telecom circles as per Ex.D-34 to Ex.D-36 and Ex.D-38. Usefulness of the wire is fully established. This is further supported by Ex.D-41 to Ex.D-53. In view of the above evidence and the fact that the above said wire was put to use all over India by the various Telecom Circles and Districts, it can not be said to be non-standard. Even though it has not been tested by the QA Wing; but this is more than compensated by the fact that it was tested by an independent test center under the Ministry of Industry and certified by it. This part of charge is not proved.
8.2. The next part of the charge is that the C.O. did not obtain the non-availability certificate from C.T.S.D. and did not follow the tendering procedure. It has come ton the record of the inquiry that non-availability Certificate is required in respect of those store items which are stocked. That the above said wire was not a stocked item has been certified by the Divisional Engineer (Store), circle Telecom Store Depot, Assam Circle vice Ex.S-62/2. SW-4 has also confirmed that for non-stocked items non-availability certificate is not required. In view of the above, this part of the charge is not approved. As regards the allegation that the C.O. did not follow the tendering formalities before placing order for the purchase of the above said wire, COs contention is that he had purchased the above said wire on the basis of the rate approved by open tender by J&K Circle during 199 when there was no such order. The contention of the C.O. has force because a large number of field units purchased the above said wire, on the rates approved by J&K Circle by open tender, by placing orders on M/s B.R. Electricals. It is not only the above said wire but P.C.O. sign-boards were also purchased throughout the country during 1991-92 on the rates approved by MTNL. Thus it is established that the practice of purchasing need based items on tenders finalized by other Circles/Units, was in vogue in DOT throughout India. The order barring such purchases was issued on 12-01-1993 which is subsequent to the purchase actions taken by the CO. Thus the C.O. did not commit any irregularity in not tendering by himself but working on the tenders finalized by another circle.
8.3 As regards the purchase bring on exorbitant rate as compared to the assessed rate of Rs.1956.76 per Km., C.O. has shown that the cost of PVC coating of twin conductors with bonding alone, on the basis of the contract entered into by the DOT in November, 1989 as per Ex.D-44 (1-8) where the G.I. wire was supplied by the department, came to Rs.3900/-per Km. and therefore the assessed cost by DOT of Rs.1956.76 per Km including the G.I. wire is wrong SW-7, Shri Asim Abbas, who had done the costing in DOT, admitted that production records was an important element for working out the pricing of the material or equipment. He also admitted that in the absence of the production record, it was not possible to do costing due to non-availability of actual details relating to the capital cost of land, building, machinery etc. C.O. in his written brief has worked out the cost of PVC insulated twin Galvanized steel Drop-wire at around Rs.7000/- per Km. Considering all this, it can not be concluded that the rate assessed by DOT, in the absence of required records, is correct and the rate approved by GMT Kashmir on the basis of the open tenders is in-correct. The benefit of doubt in this particular matter goes to the CO.
8.4. As regards the allegation that C.O. passed bill Nos. 237,238 and 239, all dated 05-3-1992, without delivery challans and before sanction of estimates. C.O. has also passed bill Nos. 348dated 09-05-1992 and 349, 350,351 & 352 all dated 11-05-1992 which were accompanied by defective challans i.e. on letter-head of the firm without receipt/acknowledgement by the consignee and without mentioning truck Nos. without valid estimates and much beyond his financial powers. The bill No. 237, 239 & 238 are available as Ex.S-22 to Ex.S-24 respectively. All these bills contain an endorsement by the consignee that the quality is good, rate is competent and quantity is correct. Ex. S-43/2 shows that the detailed estimate was sanctioned by TDM on 01-04-1992, though as per Ex.S-43/20 an advance number was allotted much earlier so that the work may not suffer. The bills were passed on 01-04-1992. It cannot therefore, be said that the bills were passed before the estimate was sanctioned. The bills were passed after getting the certificate of receipt of goods in full quantity and in good condition. As regards the bill Nos. 348 to 352, the same are available as Ex.S-34 toEx.S-38, P.O. has alleged that the bills have been split when there was one purchase order and one consignee. On going through the charge-sheet, I find that there is no charge against the C.O. that he had split the bills. On all these bills, the consignees have certified that stores have been received in full quantity, in good condition and entered in the stock register. Thus all the formalities were completed before passing the bills. It has been stated that truck Nos. have not been mentioned. Ex.S-45 shows that truck Nos. by which the goods were dispatched have been mentioned in the letter. The challans are available in Ex.S-29 to Ex.S-33. These are on the letter-head of the firm. The consignees have already certified that goods have been received in full quantity and in good condition, which fully meets the requirement before passing the bills. The mere fact that the challans are on firms letter-head is not a material factor. It is also noticed that SDO Dispur was the consignee, had forwarded the bill Nos. 348 to 352 to the O/o TDM for further necessary action vide his letter ar Ex.S-39. In view of the above I hold that this charge is not proved against the C.O. 8.5. In view of the discussion of evidence in the preceding paras, my finding is that the charge leveled against Shri Y.P.Kataria, the then TDM, Guwahati and presently working as DDG (SW), BSNL Corporate Office, New Delhi vide charge-sheet Memorandum No. 8-205/2001-VIG-II dated 9th October, 2003 is not proved.
9.0 FINDINGS:
On the basis of oral and documentary evidences adduced before me during the inquiry and in view of the reasons given, my findings are as follows:
Charges not proved.
3. It is appropriate to note that the Disciplinary Authority vide letter dated 25.05.2007 submitted the papers to the Central Vigilance Commission (CVC) along with representation of the applicant and sought advice which was responded to by the CVC in its letter dated 13.06.2007, wherein the CVC concurred with the findings of the Administrative Authority holding the Articles of Charge as Proved and advised for the imposition of suitable major penalty upon the applicant. Pursuant to the said advice, the Disciplinary Authority disagreeing with the findings of the IO, submitted a tentative finding holding the charge as Proved vide Memorandum dated 26.07.2007 (Annexure-A3). The applicant submitted his representation dated 14.08.2007. The Disciplinary Authority after considering the whole matter sought the advice of the UPSC in the matter. The UPSC in its letter dated 12.03.2008 tendered its advice in the following manner:-
4. The Commission observe that Deptt. of Communications letter No.9-102/97-Vig.I dated 28.6.99 (Exh. S-60) addressed to CBI, ACB Guwahati and DOTs letter No.101-69/92-MMS.1 dated 29.10.92 (Esh. S-68) addressed to CGM Telecom, Assam Circle on the matter explain the policy of Deptt. of Telecommunication regarding procurement of PVC insulated twin galvanized iron dropwire. These letters clearly mention that being a non-standard item it is not procured. Being neither stocked item nor regular item of the Department, the question of authorization does not arise. There is no rule and nor any persmission is granted to allow any circle to adopt the rate of material approved by particular telecom circule. Thus acceptance of such rate contract by Area Director may not be proper. Being non-standard item, telecom circles are not authorized to procure it. DOT accepts only TEC evaluated items for newly introduced items which are related to telecom network and the inspection by the QA is mandatory in those items. The Commission also observe that DOTs letter dated 29.10.92 (Exh.S-68) further mentions that the case of procurement uncertain quantity of this item by GMT, Kashmir from M/s B. R. Electrical at exorbitant rates itself is under investigation.
5. The Commission thus observe that the main issue involved in this case is that the policy was very clear that no telecom circle was empowered to make a purchase of this item, for the reasons cited in the letter dated 28.6.1999 of DOT (Exh. S/60/1). As TDM, the CO was supposed to be in the know of the extant rules/instructions involving purchase of such items. However, the Commission observe that, as is evident from the noting on the concerned file (Exhibit. S-17), the CO did not apply his mind and without making any queries accepted the recommendations of the IFA that the purchase proposal may be approved on the rates approved by the GMT, Kashmir. The Commission, therefore, observe that the charge is proved against the CO.
6. In light of their findings as discussed above and after taking into account all other aspects relevant to the case, the Commission observe that the charge proved constitute grave misconduct on the part of the CO, Shri Y. P. Kataria the then TDM, Assam Circle, Guwahati presently DDG (SW), BSNL and consider that ends of justice would be met if he is compulsorily retired and further a penalty of 20% cut in his monthly pension for a period of three years is imposed on him. His gratuity may also be withheld permanently. The Commission advise accordingly.
4. The Disciplinary Authority after considering the advice of the CVC, UPSC and the representation of the applicant on the Enquiry Officers report and the Disagreement Note considered the entire gamut of the case and holding the charge as Proved imposed the penalty of compulsory retirement from service on the applicant vide order dated 28.03.2008 (Annexure-A1). Further, it was also ordered that his gratuity would be withheld permanently and 20% cut in monthly pension for a period of 3 years was also imposed. Feeling aggrieved by the said order of the Disciplinary Authority, the applicant is before the Tribunal in the present OA praying to quash and set aside the said penalty order and to grant him the consequential benefits.
5. Shri P. P. Khurana, Sr. Advocate assisted by Ms. Sunita Tiwari, learned counsel for the applicant, would contend that the penalty imposed on the applicant is de hors the CCS (CCA) Rules, 1965. The enquiry was initiated against the applicant for major penalty proceeding and while imposing the penalty of compulsory retirement, the Disciplinary Authority under Clause (vii) of Rule 12 of CCS (CCA) Rules can impose only one penalty. On the other hand, the respondents have also imposed another penalty under Rule 40 of CCS (Pension) Rules by forfeiting the entire gratuity and imposing 20% cut in pension for 3 years. It is contended that the major penalty under Rule 11 of CCS (CCA) Rules, compulsory retirement, if imposed, the applicant should be entitled to full pension and retirement gratuity admissible on the date of such compulsory retirement. But when the applicant was imposed cut in pension and withholding permanently of the full gratuity this was the second punishment under CCS (Pension) Rules. Hence, the applicant was punished twice for the same misconduct and, therefore, on this score of double jeopardy, the entire penalty order is liable to be quashed.
6. It is further contended that the charge sheet was issued after 11 years of the incidence which took place in 1991-1992 and charges were framed in the year 2003. It is settled law that delay if not explained which may cause prejudice to an employee may be fatal. The respondents did admit about the delay in issuance of charge sheet and initiation of disciplinary proceedings against the applicant. Shri Khurana would place his reliance on the judgment of Honble Supreme Court in the cases of; (i) P. V. Mahadavan versus M. D. T. N. Housing Board reported in 2005 (6) SCC 636; (ii) State of M. P. versus Bani Singh [1990 (Suppl) SCC 738]; (iii) Meera Rawther versus State of Kerala [2001 (5) SLR 518] and judgment of this Tribunal in the case of Ram Kumar versus Union of India [OA No.624/2006 decided on 19.02.2007]. He would carry forward his above contention that in a similar case relating to one Shri Ram Kumar who was TDM, Guwahati during 1992 and charges of similar nature were levelled in the purchase of 500 kms of PVC insulated Twin Galvanised Steel Drop Wire which was a non-standard item and not approved by DOT was only visited with a minor penalty of reduction to a lower stage in the time scale of pay for a period of 3 years without cumulative effect. The same on challenge by Shri Ram Kumar in OA No.624/2006, this Tribunal in its order dated 19.02.2007 quashed and set aside the charge sheet on the ground of delay.
7. One more contention raised relates to discrimination. Shri Khurana would contend that many other officers who were issued charge memo on similar charges were ultimately exonerated in their disciplinary cases, he cited the case of Shri A. N. Rai and Shri Manjit Singh who were involved in the purchase of quantity of wire far more in the quantity than the applicant purchased. But they were exonerated whereas the applicant was visited with a severe major penalty of compulsory retirement, coupled with forfeiture of entire gratuity and 20% cut in pension. Shri Khurana terms the same as hostile and invidious discrimination against the applicant.
8. Non application of mind by the Disciplinary Authority while imposing penalty is yet another contention raised by the counsel for the applicant. He would submit that the Disciplinary Authority acted blindly on the advice of the Central Vigilance Commission while recording its disagreement with the findings of the Enquiry Officer and that being so, the impugned order would not stand the legal scrutiny. In this regard, he placed his reliance on the judgments of Honble Supreme Court in R. L. Rathore versus Delhi Power Supply Co. Ltd. [2004 (2) SLR 265]. It is further contended that the respondents have passed the penalty order on the last date of applicants service i.e. on 31.03.2008 whereas the EOs report was available with the respondents as far back as in April, 2007. Shri Khurana would further submit that the applicant did not commit any misconduct as he was buying the wires on the rates approved by the other circles on the basis of open tender. Further, UPSC advised on the basis of certain policy decision of 1999 whereas the incident of purchase took place in the year 1992. This would indicate that certain standards which were prescribed much after the purchase having been cited as the ground to punish the applicant, is legally non maintainable as such standards did not exist at the time of purchase and, therefore, the applicant did not commit such misconducts in violation of the standards/policy. He, therefore, submits that on the above grounds the OA is liable to be allowed and full pensionary benefits and retirement dues must be released to the applicant with cost.
9. Shri R. N. Singh, learned Counsel for the respondents, on the other hand, vehemently opposed the contentions raised by Shri P. P. Khurana. He would submit that the respondents while imposing punishment on the applicant took into account that the applicant was due to retire and, therefore, compulsory retirement would have no effect on the applicant unless the Rule 40 of the CCS (Pension) Rules of 1972 could be used and accordingly appropriate orders were passed. This is not double jeopardy. The applicant has been trying to misguide the Tribunal on this count. The charge sheet was issued against the applicant after the DOT came to know from the CBI about the irregularities committed by him. As per Rules, the serving officer can be proceeded against for the irregularities committed at any point of time in his service period and as such the grounds of delay in initiating the disciplinary proceedings against the applicant would not be right as the prescribed procedure would need consultation with CVC, UPSC and the irregularities were as such that it would take lot more time to frame the charges. Disagreement note has been tentative in nature while issuing to the applicant to seek his representation and only on consideration of the representation the competent authority decided the matter. Further, the punishment of compulsory retirement and withholding of gratuity permanently and 20% cut in pension for 3 years was as per Rule 40 of CCS (Pension) Rules. Shri Singh submits that applicant cannot claim similarity as other officers who were dealt with similar set of charges and were exonerated as the facts and circumstances of the case would differ from each other. He submits that the punishment imposed on the applicant was proportionate and the principles of natural justice have been followed while passing the penalty orders. It is submitted that as per the well settled principle, the respondents have enclosed the advice of UPSC along with the punishment order. He, therefore, urges that the OA is a fit case to be dismissed.
10. Having heard the learned counsel for the parties, with their assistance, we very carefully perused the pleadings. The short question is whether the penalty order imposed on the applicant is sustainable in the eyes of law, and more specifically, whether initiating the disciplinary case after a long lapse of 11 years would be legally maintainable.
11. We may at this stage take up the issue of delay which has been claimed to have prejudiced the applicants case. It is not in dispute that the alleged misconduct took place in the year 1992 and the charge memo was issued against him on 9.10.2003. The period that the respondents have taken is no doubt very long, more than about 11 years to frame charges and penalty order was passed in March, 2008 which means after 16 years of the alleged misconduct.
12. At this juncture, we would like to refer the well settled position in law whether delay in framing charges against the applicant has prejudiced him. In a disciplinary proceeding, the nature of charge and the alleged misconduct generally holds the field. There are 2 types of misconducts-viz. serious, and grave misconducts involving misappropriation, embezzlement, corruption, moral turpitude etc. and the second type are minor procedural and supervisory lapses. In case of the grave charges, the Courts and Tribunals would generally tend not to prevent the disciplinary proceeding to move on against the delinquent. Honble Supreme Court in catena of judgments like B. C. Chaturvedi versus Union of India (1995 (6) SCC 749), Secretary to Government Prohibition & Excise Department versus L. Srinivasan (1996 (3) SCC 157) and Food Corporation of India versus V. P. Bhatia [JT 1998 (8) SC 16], held that delay in serious and grave misconducts was considered not fatal since collecting and collating entire evidence to establish the essential links between the public servant and sources of pecuniary benefit would be time consuming process. In such cases, the long hand of law would need considerable time to link the nexus. On the other hand, the Honble Supreme Court in set of judgments held that in case of minor administrative and procedural lapses, if there was no justification as to the inordinate delay in initiating enquiry, framing charges and imposing penalty which would prejudice the delinquent employee, the departmental proceeding and the penalty so imposed would be illegal. We may refer to the judgments in the cases of P. V. Mahadevan versus M. D. T. N. Housing Board (2005 SCC (L&S) 861), M. V. Bijlani versus Union of India and Others (2006 (3) SLR SC 105), and the State of Andhra Pradesh Versus N. Radhakrishnan (1988 (4) SCC 154) where Honble Apex Court held that no predetermined principles would be possibly laid down or applicable for all cases. In Radhakrishnans case (supra) the following ratio was laid:-
The essence of the matter is that the court has to take into consideration all the relevant facts and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice than an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
13. Delay prejudices one in the matters of defence when the charges are framed after long lapse of 11 years, more specifically, when the delay has not been reasonably explained. The applicant has been confronted with the charge that he purchased materials at high rates in 1992. At the time of purchase, he seems to have adopted the price followed by others and no policy and standards were existing. Policy and standards were set by DOT much after the procurement. We wonder how can such policy be the basis of the charge? This reflects non application of mind and arbitrary action. In the present case, we do not find any valid and reasonable explanation by the respondents for delay in both (a) framing charges and (b) finalization of disciplinary case. This case is a simple one. The applicant has not been charged of any corruption or misappropriation, or embezzlement or moral turpitude. The alleged misconducts are supervisory and procedural in nature. Delay in the instant case has no doubt prejudiced the applicant.
14. In view of the discussions, we find that the respondents have not been in a position to explain the grounds of delay and why they have taken long period of time, first to initiate the disciplinary proceedings against the applicant in October, 2003 when the alleged misconduct took place in 1992 and later on long period to finalise the same. On this ground alone the respondents case is not legally sustainable.
15. There are other legal infirmities which have been brought out during the hearing. We may refer to two more grounds. One of the grounds is discrimination. The applicant has been punished whereas his other two colleagues have been exonerated. These similar cases have been brought in the rejoinder of the OA. Though full facts of those two cases are not available but a close scrutiny of the final orders enclosed gives us a reasonable comfort to conclude that the applicant is similarly placed as those two officer. It is true that on same nature of misconduct, same period and same finding of Not Proved by the Enquiry Officer two charged officers [Shri Manjeet Singh and Shri A. N. Rai] have been fully exonerated by the same Disciplinary Authority on 18.11.2008 and 19.08.2008 respectively. We are at loss to know the reasons for which the applicant has been punished. The respondents contend that facts are different but the facts as available from the pleading are same in those cases and in the instant OA. Thus, we find that the applicant has been discriminated.
16. The next legal infirmity we notice relates to the non-supply of UPSC advice to the applicant in advance to defend himself. It is well settled principles of natural justice that if any material is to be relied upon in a disciplinary case, a copy of the same must be given in advance to the delinquent officer in order to provide him an opportunity to rebut. In the present case, the Disciplinary Authority has relied heavily on the report of UPSC but a copy of the said report was not made available to the applicant in advance. Hence, such an omission is violation of the principles of natural justice and the penalty order is liable to be quashed. We draw our strength from the latest judgment of Honble Supreme Court in the case of Union of India & Others versus S. K. Kapoor [2011 STPL (Web) 277 SC] wherein the following law was laid:-
11. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employees, otherwise, there will be violation of the principles of natural justice.
17. Considering the totality of facts and circumstances of the case and guided by the well settled positions in law, we come to the considered conclusion that (i) the applicant has been prejudiced by delay in initiating the disciplinary action; (ii) the applicant has been discriminated and (iii) by non supply of UPSC report to the applicant the principles of natural justice have been violated. In the result, for the foregoing reasons, we allow the OA. Impugned penalty order dated 28.03.2008 and the Charge Memo dated 9.10.2003 are quashed and set aside. The applicant is entitled to all consequential benefits. Resultantly, we direct the respondents to allow the applicant to retire on superannuation and grant him all consequential benefits, like pension, gratuity and other retirement dues as admissible as per law. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/