Central Administrative Tribunal - Delhi
Dr.P.S. Nain vs Union Of India on 9 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.366/2013
Reserved On:30.06.2015
Pronounced On:09.07.2015
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Dr.P.S. Nain
S/o Shri Rishal Singh Nain
R/o Flat No.604, Retech Society,
Sector-21C, Faridabad
Haryana. ..Applicant
By Advocate: Shri M.K. Bhardwaj with Shri Sankalp
Goswami.
Versus
Union of India
Through Secretary,
Ministry of Agriculture,
Department of Agriculture &
Cooperation,
Krishi Bhawan,
New Delhi. Respondents
By Advocate: Shri Ashok Kumar.
ORDER
G. George Paracken, Member(J) The Applicants grievance is against the minor penalty proceedings initiated against him culminated in the order of the Disciplinary Authority imposing upon him the penalty of reduction of pay.
2. The brief facts of the case are that the Applicant was proceeded under Rule 16 of the CCS (CCA) Rules, 1965 vide Memorandum No.F.13011/40/2010-AVU dated 06.07.2011. The statement of imputation of misconduct or misbehavior on which the action was taken is reproduced as under:-
On the basis and after verification of a complaint, a joint surprise check was conducted by a team of ACB, New Delhi in the office of NPQS, New Delhi on 26.05.2010.
At the time of joint surprise check conducted by CBI, the said Dr. P.S. Nain, the then Deputy Director (PP) while posted as In-charge of NPQS, Rangpuri, New Delhi, was present in his room. He was apprised with the purpose of the visit. Thereafter, Dr. P. S. Nain was requested to provide the list of certificates issued on 26.05.2010, which he provided through Sh. Mahalingam, Stenographer. The list containing three sheets have the details of Import Release Order (16 Nos) and Export Phytosanitory Certificates (31 Nos). It was revealed that total of 47 certificates were issued/printed on 26.05.2010. Thereafter, his office chamber was searched after observing codal formalities in the presence of independent witnesses. However, Rs.1900/- was found in his purse. Thereafter, the team conducted search of the Office Room of Sh. Mahavir Sharma, SSA-III in the presence of independent witness and officials of NPQS. Before initiating the search, Shri Mahavir Sharma, SSA-III claimed having Rs.1900/- as his personal money and Shri Vijay Kumar claimed having Rs.1150/- as his personal money. Dr. Salim claimed having Rs.200/- only and Shri Janaki Saran Singh claimed having Rs.400/-, Rs.500/- as his personal money. All the officers/officials claimed that they are not having any extra money except claimed above. Thereafter, personal search of above officers/officials of NPQS was conducted in the presence of witnesses and it was found that Shri Mahavir Sharma was having Rs.1310/-, Dr. Salim was having Rs.500/- which were returned to the concerned officers/officials by the CBI team.
After this, thorough search was conducted of the office room of Shri Mahavir Sharma. The available documents in the room were also looked into by CBI. During search, the CBI team has found that currency notes of Rs.1000/-, Rs.500/-, Rs.100/- and Rs.50/- were lying in the carton which appeared to be used as dustbin and miscellaneous rough papers were also kept nearby. The carton was lying in the corner of the room, where some papers were also lying. On enquiry, none of the four NPQS Officials claimed that the money belonged to them. With the assistance of witnesses, the currency notes were picked up and counter, as per details given as under:-
1) Rs.1000 X 7 = Rs.07,000/-
2) Rs.500 X 34 = Rs.17,000/-
3) Rs.100 X 42 = Rs. 04,200/-
4) Rs. 50 X 11 = Rs. 550/-
_____________
Total =Rs.28,750/-
_______________
Since nobody claimed the amount, it was taken in the custody of CBI.
During further search, three sheets having details of some persons, amount, NOC, dates etc. were found from the floor of the room, (i.e. under the steel almirah) of Shri Mahavir Sharma, SSA-III. None of the four officials/ officers accepted that these papers were in their handwriting. Therefore, the same was taken into the police possession, after obtaining signatures of the independent witnesses. The search of the office carry bag of Shri Mahavir Sharma, SSA-III was also conducted in the presence of independent witness and officers of NPQS. In his bag, eleven loos sheets having date wise details of September, November, December 2009 and January, 2010 and name of persons etc. were found. Shri Mahavir Sharma claimed that page No. 2, 4, 5, 6, 10 & 11 are in his hand writing in which he stated that he has mentioned the details of containers against the name of representatives of the clearing agencies. On enquiry Dr. Salim stated that no official order was issued to Shri Mahavir Sharma for maintaining such details. The sheets have been taken in CBI possession. Thereafter search of the bag of Shri Vijay Kumar, Mali was conducted and it was found that some deposit slips for the amount of Rs. 40,000/-, Rs. 4,000/- and Rs.3,000/- of IDBI Bank dated 28.10.2009; 11.05.2010; 21.05.2010 respectively in the name of Shri Vijay Kumar and PSC No. 57969 dated 26.05.2010 were kept in the bag. On enquiry, Shri Vijay Kumar stated that he used to deliver the certificate to the concerned representative of the firm. Dr. P.S. Nain stated that he should not keep the certificate in his possession but to deliver the same to the concerned party. The paper has been taken after obtaining his signature of the witnesses. It was found that an amount of Rs. 5350/- (Rupees Five Thousand three hundred and fifty) was kept in the bag of Shri Vijay Kumar, Mali. He denied that the amount belongs to him. The said amount was also taken into police possession.
CBI submitted a detailed report stating that Dr. P.S. Nain was present in his Office Room at the time of joint surprise check. In the room of Shri Mahavir Sharma, SSA-III, his associate Shri Vijay Kumar, Mali, was also present, wherefrom unclaimed cash and suspicious handwritten papers were recovered from CBI. The above acts revealed corrupt practices in NPQS, New Delhi which was under the charge of Dr. P.S. Nain who also failed to properly supervise the scrutiny of the documents and deployment of inspectors for inspection etc. which led to corruption in the NPQS, New Delhi. Dr. P.S. Nain is responsible to check the details of the documents and then only, he is supposed to sign the certificates. He is supposed to check the system or working on his office. Importantly, he failed to stop the practice of bribery/speed money in his office. It was revealed during CBI inquiry that Inspectors seldom visit the sites for the purpose of inspection of agricultural commodities. Instead, they demand and receive bribe and then, prepare/submit inspection reports without visiting the sites. It was also learnt that the rates of every object are almost fixed. It was revealed during the inquiry by CBI that some regular exporters/importers/clearing agents pay bribe to the officials/officers of NPQS on fortnightly/monthly basis also. It was revealed that corruption exists in the Office of NPQS since unclaimed cash of Rs.28,750/- was recovered from the dustbin lying in the room of Shri Mahavir Sharma, SSA-III and unclaimed cash of Rs. 5350/- and some suspicious hand written papers were also recovered from the office carry bag of Shri Vijay Kumar, Mali who used to deliver the certificate to the concerned representatives of the firm.
By the above act the said Dr. P.S. Nain, Dy. Director (PP) exhibited negligence in supervision and failed to ensure the integrity and devotion to duty of his subordinates and thereby violated 3(2) (I) of the Central Civil Services (Conduct) Rules, 19664.
3. In order to make a representation, as desired by the Disciplinary Authority in the said Memorandum, the applicant, vide his letter dated 30.07.2011, requested the Disciplinary Authority to provide him the copies of some of the documents including the copy of (the) Joint Surprise Check Memo. dated 26.5.2010 signed by Officers of CBI, Assistant, DAC(AVU), on independent witness and officials of NPQS, Rangpuri, New Delhi (6 pages). As the disciplinary authority did not provide him copy of the documents sought for, he made another representation dated 20.10.2011 stating that during the personal search by the team of ACB, CBI, New Delhi, nothing incriminating was found from him but some papers and currency notes were seized by them from the office room built on the large hall on the ground floor of Shri Mahavir Sharma, Senior Scientific Assistant-III (SSA-III for short) where Dr. Salim, Assistant Director, Shri Janaki Saran Singh, SSA-III and Shri Vijay Kumar, Mali were present, along with them, 6 to 7 agents/importers/exporters were also present outside the said office room in the hall, no misconduct on his part has been alleged in the charge sheet issued to him but he was unnecessarily implicated with the charge of negligence in supervision and failure to ensure the integrity and devotion to duty of his subordinates, even though for the misconduct, if any, on their part, they themselves were entirely responsible under the law of the land. Therefore, he has submitted that the allegation of supervisory negligence and failure to ensure the integrity and devotion to duty of his subordinates on his part are absolutely baseless, unjustified and unwarranted.
4. On receipt of the aforesaid representation, the Respondents, vide their letter dated 09.02.2012 referred the same to the UPSC for their advice to decide the quantum of penalty to be imposed upon the Applicant. The UPSC, vide their letter dated 07.06.2012, gave its advice that it was clearly established from the evidences on record that the Applicant being in-charge of NPQS office, Rangpuri exhibited negligence in supervision and failed to ensure the integrity and devotion to duty of the subordinate staff working under his control and thus violated Rule 3(2)(i) of CCS (Conduct) Rules, 1964. Hence his misconduct stood substantiated. The Commission has also advised that the ends of justice would be met in the case of the Applicant, if the penalty of reduction of pay of one stage in the time scale of pay for a period of three years, without cumulative effect and not adversely affecting his pension was imposed upon him.
5. The Respondents, vide their Memorandum dated 26.10.2012, furnished a copy of the aforesaid advice to the Applicant and he made a representation against it on 01.11.2012 stating that in order to submit his defence statement he had earlier requested the Respondents to supply him the certain documents but they have been furnished thereby denied him the reasonable opportunity to defend his case. He has also submitted that he was dismayed at the advice of the UPSC (para 4.6 of UPSCs advice dated 6.7.2012) that the charge of supervisory negligence and failure to ensure the integrity and devotion to duty of the subordinate staff has been established, without considering his logical and pithy submissions made in his representation dated 20.10.2012 with reasons while but it was mandatory on the part of the UPSC to give reasons for rejecting his submissions before holding him guilty. The applicant has specifically referred to the following observations of the UPSC and stated that a reasonable person would inevitably agree that it was absolutely baseless to hold him responsible for the misconduct, if any, on the part of his then subordinates, without any evidence to indicate any specific instances of his supervisory negligence :-
The above acts revealed corrupt practices in NPQS, New Delhi which was under the charge of Dr. P.S. Nain who also failed to properly supervise the scrutiny of documents and deployment of inspectors for inspection, etc. which led to corruption in the NPQS, New Delhi. Dr. P.S. Nain is responsible to check the details of the documents and then only, he is supposed to sign the certificates. He is supposed to check the system or working of his office. Importantly, he failed to stop the practice of bribery/speed money in his office.
XXX XXX XXX It was revealed during inquiry by CBI that some regular exporters / importers / clearing agents pay bribe to the officers/officials of NPQS on fortnightly/monthly basis also. It was revealed that corruption exists in the Office of NPQS since unclaimed cash of Rs.28,750/- was recovered from the dustbin lying in the room of Sh. Mahavir Sharma, SSA-III and unclaimed cash of Rs.5,350/- and some suspicious handwritten papers were also recovered from the office carry bag of Sh. Vinay Kumar, Mali who used to deliver the certificate to the concerned representative of the firm.
He has also referred to following observations of the UPSC and submitted that the CBIs Team arrived in the Office of the NPQS, Rangpuri, New Delhi, at about 5.00 P.M., by which time the work of issuance of certificates to the parties was over. However, several importers, exporters and/or their representatives were waiting to receive the certificates. At that time, he was in his room on the extreme corner of the first floor of office building whereas the rooms of Dr. Salim, Assistant Director/Duty Officer, Shri Mahavir Sharma, SSA-III and other staff were located on the ground floor and as such he could not keep a physical watch of the activities of his staff. Further, he has stated in his representation that in order to blame him for his supervisory negligence, there should have been some evidence indicating the specific instances where he did not take action despite the fact that they came to his knowledge. Otherwise, in law, it would be construed that he was punished without any evidence and without any gross illogicality. He has also submitted that the UPSC has not bothered to look into his complaint that the Respondents have not furnished him the requisite documents. Further, according to him, the advice of the UPSC was perfunctory as it, while holding that the charge of supervisory negligence and failure to ensure the integrity and devotion to duty of his subordinate staff was established, did not consider his representation dated 20.10.2012. He has also stated that it was mandatory on the part of the UPSC to give reasons before holding him guilty. Further, according to the Applicant, it is a settled law that suspicion cannot be held to be a substitute for legal proof. In this regard he has relied upon the judgment of the Apex Court in the case of Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others 2006 (4) SCC 713 wherein it has been held that suspicion or presumption cannot take the place of proof even in a domestic enquiry. He has also relied upon the judgment of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 wherein it has been held that Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
6. The learned counsel for the Applicant has also relied upon a judgment of the Apex Court in the case of State of U.P. Vs. Shatrughan Lal and Another 1998 (6) SCC 651 wherein it has been held that if the statement recorded during the preliminary enquiry is not furnished to the charged official, he will be deprived of the opportunity to make an effective defence. The relevant part of the said order reads as under:-
10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge- sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the Tribunal was justified in coming to the conclusion that the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the respondent in defending himself.
7. Further he has relied upon the judgment of the Apex Court in the case of Commissioner of Police, Delhi and Others Vs. Jai Bhagwan 2011 (6) SCC 376 wherein it has been held that there was no such direct and reliable evidence produced by the appellants in the departmental proceedings which clearly prove and establish that the respondent demanded and received an illegal gratification of the said denomination.
8. However, the Disciplinary Authority, vide its order dated 07.01.2013, followed the advice of the UPSC and imposed upon the Applicant the same punishment. The operative part of the said order reads as under:-
3. AND WHEREAS, the representation of CO and facts and circumstances of the case, has been considered carefully and it has been found that the submission by CO does not have any merit in view of the result of surprise inspection by CBI in the office of NPQS, Delhi were during surprise inspection on 26-05-2010 unclaimed cash was seized by CBI. In his explanation he stated that he neither had knowledge about the activities of Shri Vijay Kumar, Mali and other subordinates, nor had received any complaint or report from any quarter about corrupt activities in his office. He further stated that being a scientist, he did not have the expertise in gathering information about corrupt activities of the staff. His contention that there was no evidence to link recovery of unclaimed money to any corrupt practices in NPQS is not tenable in view of the circumstances in which the unclaimed cash and suspicious documents like handwritten papers were detected by CBI during inspection of office premises, on 26.05.2010. While there was no evidence to link these suspicious document of unclaimed cash to CO, but it is evident that as the officer in charge of NPQS, New Delhi, he was not aware of the activities of his subordinates in the office premises due to which the staff/subordinates indulged in such suspicious activities right under the nose of CO. Hence, the charge of negligence in supervision and failure to ensure integrity and devotion to duty of his subordinates stood established and it was decided with the approval of the Disciplinary Authority to send the case to Union Public Service Commission (UPSC) to decide the quantum of minor penalty.
4. AND WHEREAS, the case records were forwarded by DA to UPSC for seeking their advice on 09.02.2012. UPSC, after examining the case records, vide their letter No.F.3/320/2011-S.I. dated 07-06-2012 (copy enclosed), have advised that in light of their findings as discussed in their above letter and after taking into account all other aspects relevant to the case, have advised that the ends of justice would be met in this case, if the penalty of reduction of pay by one stage in the time scale of pay for a period of three years, without cumulative effect and not adversely affecting his pension, is imposed on the CO.
5. AND WHEREAS, the UPSC advice was sent on 26-10-12 to the CO for according him a final opportunity to make a representation on the findings of UPSC and their advice. The CO has submitted his representation on 05-11-2012. The President, as Disciplinary Authority, found that the CO has mostly reiterated his earlier submissions, which have been delved upon at pre-paras of this order. Few additional points made by him are that the charges are based on mere suspicion that the authority for deployment of staff has been entrusted on the duty officer/administrative officer, no complaint of occurrence of pests and disease in the consignment exported from India, were reported by the importing countries and that UPSC also not considered the circumstances and have advised a harsh penalty.
6. AND WHEREAS, Disciplinary Authority found that CBI was conducted in the O/o NPQS Rangpur, New Delhi in which CO, was the in-charge. Unclaimed cash as well as incriminating documents were seized from the office premises and on person of 01 employee. Therefore, the contention of the CO that the charges were on mere suspicion does not have merit. Although he was authorized his subordinate staff for deployment of employees on PQ duties, the ultimate supervision of their deployment rested with CO. The rest of the contentions are not related to the charges of lack of supervision.
7. AND WHEREAS, disciplinary authority after taking into consideration representation of CO and the facts and circumstances of the case is satisfied that the allegations against the CO are correct and has, therefore, decided in accordance with UPSC advice to impose the penalty of reduction of pay by one stage in the time scale of pay for a period of three years, without cumulative effect and not adversely affecting his pension on the CO.
8. NOW THEREFORE, the President as the Disciplinary Authority in exercise of powers conferred by Rule II (iii)(A) of CCS (CCA) Rules, 1965, imposes on the CO the penalty of reduction of pay by one stage in the time scale of pay for a period of three years, without cumulative effect and not adversely affecting his pension.
9. Receipt of this order may be acknowledged by Dr. P.S. Nain.
9. The Applicant has challenged the aforesaid disciplinary proceedings and the order of the Disciplinary Authority in this OA on the grounds that Disciplinary Authority has not applied its mind in initiating the enquiry proceedings against him also issuing its order of punishment later. The learned counsel has also submitted that there was no evidence whatsoever to link him with the charges levelled against him. Further, he has stated that the alleged discovery of currency notes was not made from his room but it was from another room which was situated quite far away from his room. He was also not present in the said room. Again, he has stated that the Disciplinary Authority has initiated the enquiry against him without following the principles of natural justice. In this regard he has stated when the enquiry was based on the CBI report, the copy of said report was not given to him thereby denied him an opportunity to refute the findings of the CBI against him.
10. He has also relied upon the instructions of the Department of Personnel and Training issued vide OM No.25/2/72-Ests.(A) dated 10.01.1973 wherein it has been stated that under Rule 3(2)(i) of the CCS (Conduct) Rules, 1964, every government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all government servants for the time being under his control and authority and clarified further that the said rule shall be invoked only in cases where there is failure on the part of the superior officer concerned to take all reasonable and necessary steps to ensure integrity and devotion to duty under his control and authority. However, no instances of failure on the part of the Applicant have been pointed out by the Disciplinary Authority. The relevant part of the said Memorandum is reproduced as under:-
Term possible steps interpreted to mean all reasonable and necessary steps Under rule 3(2)(i) of the Central Civil Services (Conduct) Rules, 1964, every government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all government servants for the time being under his control and authority.
2. The National Council set up under the Machinery for Joint Consultation and Compulsory Arbitration in its meeting held on 28th July, 1972 adopted a recommendation of the committee set up by the Council to consider the time Amendment of the Central Civil Services (Conduct) Rules, 1964 to the effect that clarification may be issued that sub-rule (i) of rule 3(2) is intended to be invoked only in cases where there has been a failure on the part of supervisory officer concerned to take all reasonable and necessary steps to ensure the integrity and devotion to duty of government servants under his control and authority.
3. The Ministry of Finance etc. are requested to bring the clarification given in paragraph 2 above about the intention of Rule 3(2)(i) to the notice of all concerned for guidance.
11. The Respondents have filed their reply stating that the Applicant was working as Deputy Director (PP) and incharge of NPQS, Rangpuri, New Delhi at the relevant time. On the basis and after verification of a complaint, a joint surprise check was conducted by a team of ACB, CBI, New Delhi in the said office on 26.05.2010 where unclaimed cash was found in a carton in the room of one of the subordinate of the Applicant and incriminating documents were also recovered from the same room. Thereafter, the CBI submitted a self contained note on 26.05.2010 and the same was sent to the CVC on 02.02.2011 for their first stage advice and the CVC on 21.03.2013 advised to initiate common major penalty proceedings against S/Shri Mohd. Salim, AD, Janki Saran, SSA-III, Mahavir Sharma, SSA-III and Vijay Kumar, Mali and minor penalty proceedings against the Applicant for lack of supervision and for not ensuring maintenance of integrity of the aforementioned subordinates. According to them, seizure of illegal money and incriminating documents from office as well as the on person of subordinate of the Applicant during CBI raid, prima facie, established the charge of negligence by the Applicant in supervision and failure to ensure integrity and devotion to duty of his subordinates.
12. They have also stated that the Applicant has submitted a representation against the Memorandum of Charge and the Disciplinary Authority, after considering the same, came to the conclusion that, prima facie, there was negligence in supervision and failure to ensure integrity and devotion to duty of his subordinates on the part of the Applicant and it stood established against him. Therefore, the Appellate Authority tentatively recommended imposition of minor penalty upon him. Thereafter his case was referred to the UPSC for their advice. After considering the case, the UPSC observed that it was clearly established from the evidence on record that the Applicant exhibited negligence in supervision and failed to ensure the integrity and devotion to duty of the subordinates staff working under his control and thus he has violated Rule 3 (2)(i) of CCS (Conduct) Rules, 1964. Therefore, the UPSC advised that a penalty of reduction of pay by one stage in the time scale of pay for a period of three years without cumulative effect and not adversely affecting his pension be imposed on the Applicant. Again, they have stated that in order to give final opportunity to the Applicant to make a representation, he was furnished with a copy of the UPSCs advice and the Applicant has submitted his representation against the same. It was only thereafter, the impugned punishment was imposed upon the Applicant.
13. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj with Shri Sankalp Goswami and the learned counsel for the Respondents Shri Ashok Kumar. The misconduct alleged to have been committed by the Applicant was that there was corrupt practices in NPQS which was under the charge of the Applicant and he failed to properly supervise the scrutiny of the documents and deployment of inspectors for inspection etc. which led to corruption in the said office. Further, he was responsible to check the details of the documents and only then to sign the certificates. He was also supposed to check the system or working on his office but he failed to stop the practice of bribery/speed money in his office. Further, the Inspectors seldom visit the sites for the purpose of inspection of agricultural commodities. Instead, they demand and receive bribe and and the rates of every object were almost fixed and some regular exporters/importers/clearing agents pay bribe to the officials/officers of NPQS on fortnightly/monthly basis. The aforesaid allegations have been made against the Applicant on the basis of the report of the CBI after having conducted a surprise check and the seizure of illegal money and incriminating documents from the subordinates of the Applicant, namely, S/Shri Mohd. Salim, AD, Janki Saran, SSA-III, Mahavir Sharma, SSA-III and Vijay Kumar, Mali. According to the CBIs report, they conducted a search of the office room of Shri Mahavir Sharma and looked into the available documents in the room. During search, the CBI team found that currency notes of Rs.1000/-, Rs.500/-, Rs.100/- and Rs.50/- were lying in the carton which appeared to be used as dustbin and miscellaneous rough papers were also kept nearby. At the time of the check, the Applicant was present in his office which was different from the room of Shri Mahavir Sharma and his associate Shri Vijay Kumar, Mali. There was no allegation by the CBI that they have recovered any currency notes or any incriminating documents from the room of the Applicant. But they have held that he has exhibited negligence in supervision and failed to ensure the integrity and devotion to duty of his subordinates working under his control and thereby violated Rule 3(2)(i) of the CCS (Conduct) Rules, 1964 which reads as under:-
3(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority
14. The aforesaid charge against the Applicant is quite vague. It only says that he has exhibited negligence in supervision and failed to ensure the integrity and devotion to duty of his subordinates. As clarified by the DOP&T, vide their OM dated 10.01.1973 (supra), in order to invoke the provisions contained in sub-rule (i) of Rule 3(2) of the CCS (Conduct) Rules, 1964 against any supervisory officer, it has to be established that there was failure on his part to take all reasonable and necessary steps to ensure the integrity and devotion to duty of government servants under his control and authority. It is incumbent upon the Disciplinary Authority to specify in what way the supervisory officer has failed to do so. While making allegation against the Applicant that he has violated the aforesaid rule, the Respondents have not given a single instance of that kind. A vague allegation cannot be considered as a misconduct. During the raid, if the illegally collected currency notes and other incriminating documents were recovered from his subordinates, it cannot he held without any valid proof that the Applicant as the supervisory officer has failed in his duty to supervise them. Until any clear link was established between the subordinates who indulged themselves in committing the misconduct and the Applicant, the Disciplinary Authority could not have claimed that the charge has been proved. Moreover, it is the finding of the Disciplinary Authority itself that there was no evidence to link the suspicious documents or unclaimed cash to the Applicant but its only finding was that the Applicant was not aware of the activities of his subordinates in the office premises due to which the staff/subordinates indulged in such suspicious activities right under his nose.
15. Again, it is seen that the Applicant in his representation submitted the following points as mentioned by the Disciplinary Authority itself in his order:-
(i) CO was not present in the room from where the cash was recovered by CBI during the surprise inspection.
(ii) CO was not responsible for misconduct on part of subordinates without any evidence to indicate any specific instance of supervisory negligence on his part. It is baseless to blame him without any evidence for not taking any action to stop practice of bribery in the office.
(iii) Regarding seizure of unclaimed currency notes amounting to Rs.28,750/- in NPQS, New Delhi, it might belonged to any of the persons including the six or seven private persons present in the room, particularly since nobody claimed the seized cash. It is possible that any of the private person had thrown the money in the room for fear of the CBI. CO has nothing to do with the unclaimed cash.
(iv) From the joint surprise check memo of CBI, it is not established that cash recovered in the room was related to bribe money of any of the official.
(v) Blaming CO for supervisory misconduct without indicating specific instance where he did not act despite the fact that it came to his notice is baseless.
(vi) He had no knowledge that Shri Vijay Kumar, Mali, had kept or was keeping the certificate in his possession and he would have taken corrective action if he had known about such instance. It was the responsibility of the Administrative Officer who had assigned the duty to Shri Mali to ensure that the duty was honestly performed by Shri Mali.
(vii) From the joint Surpirse Check Memo dated 26.5.2010, it would be reasonable to conclude that amount of Rs.5350/- found in the bag of Shri Vijay Kumar was related to bribe money. Similarly, it would be unreasonable to infer that unclaimed cash was bribe money for any official on NPQS.
(viii) By no stretch of imagination, he had anything to do with the money found in the bag of Shri Vijay Kumar Mali or had any knowledge about it.
(ix) He had not received any complaint/report of any harassment of any agent/importer/exporter or demand of bribe by any official. Had it come to his knowledge, he would have been taken appropriate remedial measures. He had not received any non-compliance regarding interception of pests and diseases from any of the importing countries.
(x) He being an agricultural scientist does not have the special skill of gathering intelligence or information on the alleged wrong doings in NPQS or about corruption. No complaint has been brought to his notice from any quarter.
But the Disciplinary Authority did not consider any of those points in his order before imposing the punishment upon the Applicant.
16. Further, it is a well settled position of law that procedural fairness and regularity are of the indispensable essence of liberty and if relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. (Refer State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) SCC 772). In the case of Trilok Nath vs. Union of India 1967 SLR 759 (SC) it was held that non-supply of the documents amounted to denial of reasonable opportunity. The relevant part of the said order reads as follows:
"Had he decided to do so, the document would have been useful to the appellant for cross- examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."
In the same judgment, it was also held as under:-
the public servant so requires for his defence he has to be furnished with copies of all the relevant documents, i.e., Documents sought to be relied upon by the IO or required by the public servant for his defence. The rationale for making available the documents required by the delinquent officer is that it is indispensable for putting forward effectively his defence. Failure to supply these materials would tantamount to denial of reasonable opportunity to the applicant to defend himself and vitiates the entire proceedings.
In Kashinath Dikshita vs. Union of India (1986) 3 SCC page 229, it has held that without supplying relevant documents, reasonable opportunity to defend the case cannot be said to have been given. The relevant part of the said judgment reads as under:-
"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question:
"What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
17. However, it is seen that along with the Memorandum dated 06.07.2011, the Disciplinary Authority has not supplied him the copy of the CBI report dated 26.05.2010 based on which the statement of imputation was framed against the Applicant. However, it is a different matter that the Applicant could obtain a copy of the said report then and he made his representation dated 20.10.2011. Further, it is seen that the aforesaid report of the CBI was sent by the Respondents to the CVC on 02.02.2011 for its first stage advice and the CVC on 21.03.2011 advised to initiate common major penalty proceedings against S/Shri Mohd. Salim, AD, Janki Saran, SSA-III, Mahavir Sharma, SSA-III and Vijay Kumar, Mali and minor penalty proceedings against the Applicant for lack of supervision and for not ensuring maintenance of integrity of the aforementioned subordinates. But the Respondents have never furnished a copy of the aforesaid advice of the CVC to the Applicant to enable him to make any representation. In State Bank of India and Others Vs. D.C. Aggarwal and Others 1993 (1) SCC 13 their Lordships of the Supreme Court considered the effect of non-supply of CVC recommendations and observed as follows:-
The order is vitiated not because of mechanical exercise of power or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of rule 5. But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry..
Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order..
The submission of the learned Addl. Solicitor General that CVC recommendations are confidential copy, of which, could not be supplied cannot be accepted. Recommendations of Vigilance prior to initiation of proceedings are different that CVC recommendation which was the basis of the order passed by the Disciplinary Authority.
18. Admittedly, the Applicant was proceeded against under the Rule 16 of the CCS (CCA) Rules, 1965. Sub-rule (1) thereof reads as under:-
(1) Subject to the provisions of sub-rule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) recording a finding on each imputation or misconduct or misbehaviour; and (e) consulting the Commission where such consultation is necessary.
From the aforesaid rule, it is clear that UPSC is to be consulted before imposing any minor penalty upon a Government servant. The manner in which the Disciplinary Authority acted upon the advice of the UPSC is also illegal and against the principles of natural justice. In Article 320(3) of the Constitution of India, it is provided that the UPSC shall be consulted in all disciplinary matters affecting a person serving under the Government of India in a civil capacity. The Disciplinary Authority has to independently apply its mind and propose the punishment to be imposed upon the Government employee and then that advice was to be considered by the Disciplinary Authority. In other words, consultation with the UPSC includes the proposed penalty to be imposed upon the Applicant also. The Commission is not a substitute for the Enquiry Authority or Disciplinary Authority. The said provision reads as under:-
Article 320(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor, of the State, may refer to them:
Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
19. However, in this case, the Disciplinary Authority abdicated its duty and left it to the UPSC to decide the quantum of punishment. The Commission also did not restrain itself to remain within its jurisdiction. Instead, it has assumed the role of the Disciplinary Authority and dictated the penalty to be imposed upon the Applicant to the Disciplinary Authority. Its advice was that, to meet the ends of justice, the penalty of reduction of pay by one stage in the time scale of pay for a period of three years, without cumulative effect and not adversely affecting his pension was to be issued on the Applicant. From the departments file also it is seen that the Disciplinary Authority has approved the proposal to refer the case to the UPSC to decide the quantum of penalty to be imposed upon the Applicant. Again, when the advice was received, it was submitted to the Disciplinary Authority for its acceptance and the Disciplinary Authority simply appended his signature in token of his acceptance. In other words, the Disciplinary Authority has not applied its mind neither at the initial stage of initiating the minor penalty proceedings against the Applicant nor at the stage of imposing the penalty upon him. The Apex Court in the case of CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. Vs. ANANTA SAHA & ORS. 2011 (5) SCC 142 held as under:-
28. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
20. We are, therefore, of the considered view that not only the allegations made against the Applicant have not been established but the entire enquiry proceedings also have been vitiated. We, in the above facts and circumstances of the case, allow this OA and quash and set aside the charge memo dated 06.07.2011 and the order of the Disciplinary Authority dated 07.01.2013 with all consequential benefits. The respondents shall also pass appropriate orders in compliance of the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh