Central Administrative Tribunal - Delhi
Shri R.P.S. Panwar vs Union Of India on 3 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 4089/2011
Reserved on:07.10.2013
Pronounced:03:12.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Shri R.P.S. Panwar
S/o Shri Bihari Lal
R/o House No.86-A,
Radhey Shaym Park,
Gali No.2,
Parwana Road,
Delhi-110051. Applicant
By Advocate: Shri R.P. Kapoor.
Versus
1. Union of India,
Ministry of Communication and
Information Technology
Department of Telecommunications,
Through its Secretary,
Sanchar Bhawan,
New Delhi-110017.
2. The Disciplinary Authority,
Through Under Secretary to the
The Government of India (Respondent No.2),
Sanchar Bhawan,
20, Ashok Road,
New Delhi-110017.
3. Shri A.K. Garg,
Inquiring Authority,
Through Secretary to the
Government of India,
Department of Telecommunications,
Sanchar Bhawan,
20, Ashok Road,
New Delhi-110 017.
4. The Union Public Service Commission,
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi-110069.
5. The Central Vigilance Commission,
Through its Director,
Satarkta Bhawan,
GPO Complex,
Block-A, INA,
New Delhi-110023. Respondents
By Advocate: Shri Krishan Kumar.
ORDER
G. George Paracken,Member (J) The present Original Application under Section 19 of the Central Administrative Tribunals Act, 1985 is directed against Annexure A-4 Memorandum of Charges dated 15.03.2007, the Annexure A-5 CVCs advice dated 31.12.2008, the Annexure A-2 advice of the UPSC dated 11.03.2011, Annexure A-4 report of the Inquiry Officer dated 13.10.2008 and the Annexure A-1 order of the Disciplinary Authority dated 04.04.2011 holding him guilty of grave misconduct and withholding 25% of his pension for 5 years.
2. The brief facts of the case are that the Applicant, while working as GMTD, Muzaffarnagar under the Respondent No.1, namely, the Department of Telecommunications, was placed under suspension under Rule 10 of CCS (CCA) Rules, 1965 with effect from 18.09.2003. While he continued under suspension, he retired on superannuation on 30.04.2006. Thereafter, in terms of Rule 9 (6) of Central Civil Services (Pension) Rules, 1972, departmental proceedings deemed to have continued against him. The Articles of Charges levelled against him were as under:-
Article-I That Shri R.P.S. Panwar was posted and functioning as GMTD Moradabad (MRD) during 2000 to 2003 During June 2000, he failed to get the NIT and tender documents for U/G cable laying vetted by IFA/DFA and violated the instruction of DOT, lr.No.51-5-96/MUC-MMC dated 06.11.1997.
Article-II That during 2000 Shri R.P.S. Panwar, while functioning as GMTD Moradabad at the time of approving the NIT for calling of tender of U/G Cable laying in Moradabad SSA, failed to object to the irregularities like calling of tender without collecting the anticipated quantity and without preparing estimate of works. In spite of this approximate quantity of work was imagined in the office of GMTD Moradabad which resulted in the declaration of exorbitant high cost of tender. In this manner, DOT instruction No.760-16/95-TPS (G) XP, dated 15.07.1997 was violated.
He also failed to object to increase of zones unnecessarily by splitting MRD City and other SCDAs in two or more zones without any justification, i.e., without consideration of present capacity of exchange and area of town and development work.
Article-III That during the aforesaid period, the said Shri R.P.S. Panwar while functioning as GMTD Moradabad failed to make vide publicity of NIT for calling tender for U/G cable laying and NIT was floated in less new papers which delayed the tendering procedures by about 4 months.
He also failed to get processed the case for calling tender second time as per tendering procedures and promptly.
Article-IV That during the aforesaid period, the said Shri R.P.S. Panwar while functioning as GMTD Moradabad failed to get mentioned the specifications of items logically in the tender documents of U/G Cable laying in accordance with Para E(c ) of DOT letter No.60-8/99-MMS/11 dated 30.01.2000 but the items were divided into sub items to increase the rate of single item which resulted in receipt of unnecessary exorbitantly high rate of such items.
He also failed to get mentioned in tender documents the quantum of work involved in each Zone which in accordance with Para III of DOT Instruction No.760-22/95-TPS (Genl)/XP dated 15.05.1996, approximate quantity should have been mentioned.
Article-V That during the aforesaid period, the said Shri R.P.S. Panwar while functioning as GMTD Moradabad failed object to the shortcomings of TOC and TEC report of J/G cable laying tender, and approved tender to the unqualified bidders. He also failed to get prepared TEC report while calculating cost of bids received by multiplying quantity of terms with rates in accordance with Para III of DOT instruction No.760/22/95-TPS (Genl)/CON/27, dated 15.05.1996.
He has also failed to direct the TEC/TNC for negotiation of exorbitantly high rates received in tender while in accordance with Instructions No.CE/CON/27, dated 18.08.1955 reasonableness of rates should have been checked before approving of rate.
Article-VI That during the aforesaid period, the said Shri R.P.S. Panwar while functioning as GMTD Moradabad failed to object to the allotment of work of one zone to the Contractor of the other zone and violated the GFR Rule 6(1)(iv). No penalty in accordance with terms and conditions No.24 of tender documents of U/G cable laying was imposed wherefrom tenderer could not execute the satisfactory work. In spite of that, he also allotted himself cable to the Contractors without proposal of subordinates. He also failed to take financial concurrence while doing so.
Further, he also failed to direct the subordinate staff for processing for fresh tender when the cost of tender had been exceeded more than the declared cost of tender while in come zones of estimates, prepared between December-2000 to March 2001 had also reached much more than the declared cost of tender. He also failed to direct the subordinate staff to negotiate rated in accordance with the instruction No.410-16/85-TPS ( C), dated 04.02.1993 when the work had been executed more than 25% in excess of earlier declared estimated cost of tender. In this manner, he extended undue favour to Contractors.
Article-VII That during the aforesaid period, the said Shri R.P.S. Panwar while functioning as GMTD Moradabad failed to object to the payment of RCC pipe laying of much more quantity than the provision made in estimate. The bill was also inflated from 06 meter to 306 and accordingly amount was also fabricated from Rs.876/- to Rs.44676/- by overwriting Rs.43,800 (Rs. Forty three thousand and eight hundred only) was made to the Contractor in excess. He also failed to check preparation of Measurement Book (MB) for this bill.
Along with the aforesaid Article of Charges, he was served with a list of 121 documents by which the aforesaid Articles of Charges were to be sustained. However, there was no list of witnesses to sustain those charges. The IO, after a detailed enquiry into the matter on 13.10.2008 holding that all the aforesaid charges have been proved against the Applicant. The relevant part of the said report reads as under:-
Article-I The allegation in this charge is that the CO failed to get the NIT and tender documents vetted by IFA/DFA and thus violated the instructions contained in Ex.S-105, Ex. S-91 which is the relevant file in this case shows that no financial concurrence of IFA/DFA was taken before floating the tender for underground cable laying. This is a violation of the DOT instruction as contained in Lr. No.51-5/96-MUC-MMC dated 06.11.1997 (Ex.S-105). This charge is, therefore, proved against the Charged Officer.
Article-II From the scrutiny of file marked as Ex. S.93 it is seen that the GMTD approved the NIT for calling of tender of U/G cable laying in Moradabad without collecting the estimated quantity and without getting the estimates of works prepared. In a note recorded in the above file it is mentioned the quantity was estimated in the chamber of GMTD in a meeting where NIT conditions for inviting tender were discussed in the presence of DGM and DFA and a draft NIT was approved by the CO. This resulted in declaration of exorbitant high cost of tender. In this manner DOT instruction which provide that estimates should have tender. Estimate files show that in majority of the cases, estimates were prepared much after the date the NIT calling 2008. There are a number of other irregularities of imputations of misconduct under articles-III or Officer has failed to put up any defence in this regard. In view of this, Article-II of the charge stands proved against the CO.
Article-III As per Ex.S-91 it is noticed that the NIT was not published in Regional/National News papers. The NIT was published in the News Papers like Danik Aaj, Rashtriya Sahara, New Delhi and Hukumant Express (Urdu), Moradabad. It is thus evident that wide publicity was not given. This NIT which was published in June, 2000 was cancelled on 03.08.2000 and was again floated on 13.11.2000. The delay in publishing the NIT second time was not objected to by the CO being head of the Telecom District. Due to the limited publicity, most of the reputed firms could not participate in the tender. CO has failed to put up any defence though he was given more than reasonable opportunity to do so. In view of this I hold that this charge is fully proved against the CO.
Article-IV Presenting Officer in his written brief has stated that as per Ex.S-93, S-107 and S-108, and various estimate files, the items in tender documents were divided into sub items which has increased that rates of single item and resulted in unnecessary exorbitantly high rates. He has further stated that the total quantum of work in each zone was not mentioned. According to the P.O. the Charged Officer should have objected to these at the approval stage. Charged Officer has not submitted any defence to rebut the allegations. However, I have gone through the tender documents available in Exhibit S-91 and Exhibit S-93 and I have not been able to find any deviation in the arrangement of items and the same being divided into sub items. The tender documents in both the cases mentioned above were approved by the CO. In the absence of any defence to rebut the allegation made under this charge, I have no option but to hold that the charge stands proved against the CO.
Article-V PO has submitted that as per Ex.S-93 that only single firm for zone 01, 03, 05, 07, 10 & 16 had fulfilled the prerequisite conditions of NIT and terms and conditions of tender, but the tender was not awarded to the firm of remaining zones to the contractors who had not fulfilled the required conditions of NIT. The Charged Officer also did not notice the irregularities in the bids as mentioned in the statement of imputations under the article of charge and awarded the work to ineligible firms. Since exorbitantly high rates were quoted for some items as compared to the rates available in the neighbouring Meerut SSA, the CO did not ask the TEC/TNC to negotiate the rates and did not see the reasonableness of the rates while approving the report of TEC. CO has not submitted any defence in support of this case. The charge stands fully proved.
Article-VI The allegation against the CO is that he approved the allotment of work of one zone contractor to the contractor of the other zone in a number of cases mentioned in statement of imputations of misconduct or misbehaviour and also failed to levy the penalty as per clause 24 of the contract contained in Ex.S-93 for unsatisfactory work. Since the work in many cases exceeded more than 25% above the estimated cost, CO did not suggest for negotiating the rates which was required to be done under the existing instructions. The Charged Officer did not suggest retendering when the cost had exceeded the bid values of tender. CO has failed to put up any defence against the above said allegations though ample opportunity was provided to him to do so. This article of charge, therefore, stands proved against the CO.
Article-VII The allegation against the CO is that he passed bill No.78 dated 10.04.2000 of M/s Styam Constructions Amroha in which 306 meters of laying of RCC pipe was charged. The quantity of RCC pipe was inflated from 6 metres and also the amount was charged from Rs.876/- to Rs.44,676/- by over writing and the signatures of the officers who verified this bill were not available on the overwriting of the amount. Thus a sum of Rs.43,800/- was paid in excess to the contractor. No revised estimate was got prepared to know the actual location of the RCC pipes. No MB was prepared in this case. Due to negligence of the CO a fraudulent excess payment was made to the contractor. CO thus failed to maintain absolute integrity, devotion to duty and exhibited a conduct unbecoming of a Government servant. CO has failed to put any defence in spite of opportunity having been provided to him to do so. This article of charge stands proved against the CO.
3. Thereafter, the Disciplinary Authority, vide its impugned order dated 04.04.2011, imposed the penalty of withholding of 25% monthly pension for a period of 5 years upon the Applicant. The relevant part of the said order reads as under:-
2. As the charge were not admitted by Shri R.P.S. Panwar, an oral inquiry was ordered. Shri A.K. Garg, PGM (MM), BSNL, Corporate Office, New Delhi was appointed as the Inquiring Authority. The Inquiring Authority has submitted its report dated 13.10.2008 holding the Articles of the charge as proved. A copy of the IOs report along with the advice of CVC, duly accepted by the Competent Authority, was furnished to the CO for making representation, if any. The CO submitted his representations dated 29.04.2009 and 02.05.2009 which were considered by the President. Thereafter, the case records were referred to the UPSC for the Commissions statutory advice in the matter.
3. The UPSC have tendered their advice in the matter vide their letter No.F.303/2009-SI dated 11.03.2011. The Commission have analysed the case and have tendered a detailed advice. The Commission have found that all the seven articles of charge against the CO are proved. After taking into account all the aspects to the case, the Commission note that the charges established against the CO, constitute grave misconduct on his part and consider that ends of justice would be met in this case if the penalty of withholding of 255 of admissible monthly pension for a period of 5 (five) years is imposed on Shri R.P.S. Panwar. The gratuity may be released to him if not required otherwise.
4. The President has carefully considered the records of inquiry, the findings of the Inquiring Authority, the submissions made by Shri R.P.S. Panwar, the advice tendered by UPSC, and all other facts and circumstances relevant to this case. Considering the circumstances in totality and on an objective assessment of the entire case, the President has accepted the advice tendered by the UPSC. The President accordingly orders the penalty of withholding of 25% of admissible monthly pension for a period of 5 (five) years is imposed on Shri R.N.S. Panwar. The gratuity shall be released to him now.
5. The receipt of the Order shall be acknowledged by Shri R.P.S. Panwar.
By order and in name of the Honble President.
4. The Applicant challenged the aforesaid Articles of Charge, Inquiry Officers report and the order of the Disciplinary Authority in this OA on various grounds. The first ground taken by the learned counsel for the Applicant is that even though there are 121 list of documents by which the aforesaid charges were proposed to be sustained, there was not a single witness to examine them. He has, therefore, submitted that the contention of the IO that the aforesaid charges have been proved is absolutely wrong. In this regard he has relied upon the judgment of the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 wherein it has been held as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
5. He has also submitted that the decision of the Disciplinary Authority to withhold 25% of his pension is against Rule 9(1) of the CCS (Pension) Rules, 1972 and, therefore, it is illegal and wrong because there was no finding against him that he had committed any grave misconduct. The aforesaid rule, which reads as under:-
9(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
6. Further, he has submitted that he came to know about the UPSCs advice dated 11.03.2011 which was considered by the President for the first time when the impugned order dated 04.04.2011 holding him guilty of grave misconduct and withholding 25% cut in pension for 5 years was imposed upon him. According to the learned counsel for the Applicant Shri R.P. Kapoor, the finding of the UPSC that the Applicant has committed grave misconduct is absolutely against the rule as the decision as to whether a charge is grave or not is to be taken by the Disciplinary Authority and not by the UPSC. He has also submitted that the procedure adopted by the Disciplinary Authority is in violation of principles of natural justice inasmuch as he has never been given the UPSCs advice before the impugned penalty was imposed upon him. In this regard he has invited our attention to the UPSCs advice and the impugned order of the Disciplinary Authority. He has stated that the Disciplinary Authority did not apply its mind and has simply followed the advice of the UPSC. In this regard he has relied upon the judgment of the Apex Court in the case of Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589 wherein it has been held that if any material is to be relied upon in departmental proceedings then its copy must be supplied in advance to charge sheeted employee so that he may have chance to rebut the same. Further, it has been stated therein that if the authorities consult UPSC and rely upon its report for taking disciplinary action, then copy must be supplied in advance to the employee concerned, otherwise it would amount to violation of principles of natural justice. However, if the disciplinary authority does not rely on the UPSCs advice copy of the same need not be supplied to the employee concerned. The relevant part of the said judgment reads as under:-
5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
XXX XXX XXX
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
7. The Respondents have filed their reply stating that the Applicant did not attend the enquiry despite having given him ample opportunities by the IO. They have also sated that the allegations made by him against the CVC and the findings of the IO are baseless. Further, according to them, the Disciplinary Authority has considered the entire facts before imposing the punishment upon him. Hence, the allegation that the authorities did not apply its mind is not correct. They have also stated that the allegation made by the Applicant against the UPSC is incorrect. Its advice has been tendered keeping in view the specific allegations as brought out in the Articles of Charges and the Statement of Imputation of Misconduct which give a full and precise recitation of specific and relevant omissions and commissions committed by the Applicant. He has also submitted that the Applicants interpretation of the term grave misconduct is wrong. According to them, whether any conduct is grave or not will depend on the nature of conduct and no exhaustive definition can be given.
8. They have further stated that the advice of the UPSC and CVC are guiding factors for the Disciplinary Authority who has to apply its mind and arrive at his own conclusion regarding the quantum of punishment to be imposed upon the delinquent official. In this case the Disciplinary Authority has exercised his own wisdom and arrived at his own conclusion that the lapses committed by the Applicant warrant imposition of penalty, as advised by the UPSC. Accordingly, the Disciplinary Authority took the decision to impose the penalty upon the Applicant. They have also stated that there was no violation of principles of natural justice or any provisions of the statutory rules, as alleged by the Applicant.
9. We have heard the learned counsel for the Applicant Shri R.P. Kapoor and the learned counsel for the Respondents Shri Krishan Kumar. Admittedly, the Applicant was proceeded under Rule 9 (6)(a) of the CCS (Pension) Rules, 1972. The said rule reads as under:-
Rule 9(6) (a) For the purpose of this rule, -departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date.
However, under sub-rule (1) of the Rule 9 (ibid) the Presidents power to withhold pension or gratuity or both is not absolute. Only in such cases where the pensioner was found guilty of grave misconduct or negligence during the period of service, action can be taken under the aforesaid rule which reads as under:-
9(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
10. In the Articles of Charges against the Applicant extracted above, there is no mention that they were grave in nature. After holding the enquiry against the Applicant, the Enquiry Officer also does not say that the charge proved against the Applicant was grave. It is only the UPSC says that the charge established against the Applicant constitutes grave misconduct. The President, being the Disciplinary Authority, has simply accepted the aforesaid advice and imposed the penalty of withholding of 25% of admissible monthly pension for a period of 5 years. The Apex Court in its judgment in D.V. Kapoor Vs. Union of India and Others 1990 (4) SCC 314 wherein it was held as under:-
6. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60/-.
7. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must he correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the. President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.
8. In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved. Accordingly the appeal is allowed and the impugned order dated November 24, 1981 is quashed but in the circumstances parties are directed to bear their own costs.
11. Again as rightly pointed out by the learned counsel for the Applicant, the IO has not held the enquiry in the matter in accordance with the provisions contained in CCS (CCA) Rules, 1965. Even though the Respondents have given a list of 121 documents by which Articles of Charges were to be proved, there was not even a single witness to prove those charges. The principles of natural justice demands that the documents have to be proved by the witness and the Applicant should have been given an opportunity to cross examine them. In the absence of witnesses to prove the charges, it cannot be held that there was any proper enquiry at all. The Apex Court in Modula India Vs. Kamaksha Singh 1988 (4) SCC 619 held as under:-
(b) It is well established that mere absence of defence cannot make the plaintiff entitled to a decree straightway. Defence or no defence, the plaintiff in a suit has to satisfy the Court that he has a case which deserves to be decreed. In particular, in an eviction suit, under the rent laws, the Court has to be satisfied that the statutory conditions justifying eviction are fulfilled. This the plaintiff can establish only by leading evidence and such evidence will not be worth anything unless tested by cross-examination.
Again, the Apex Court in Roop Singh Negis case (supra) has held very clearly that mere production of documents is not enough. On the other hand, the contents of the documentary evidence has to be proved by examining the witness.
12. Further, the learned counsel for the Applicant argued that the Disciplinary Authority has not followed the principles of natural justice while imposing the punishment upon the Applicant inasmuch as the CVCs and UPSCs report have never been supplied to him before the punishment was imposed upon him. Regarding non-supply of CVC report, the Apex Court in State Bank of India and Others Vs. D.C. Aggarwal and Another AIR 1993 SC 1197 posed the question, Can Disciplinary Authority while imposing punishment, major or minor, act on material which is neither supplied nor shown to the delinquent and answered as under:-
The order is vitiated not because of mechanical exercise of power or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of rule 5. But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. From letter produced by the respondent, the authenticity of which has been verified by the learned Additional Solicitor General, it appears the Bank turned down the request of the respondent for a copy of CVC recommendation as, 'The correspondence with the Central Vigilance Commission is a privileged communication and cannot be forwarded as the order passed by the Appointing Authority deals with the recommendation of the CVC which is considered sufficient'. Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order. Non-supply of the vigilance report was one of the grounds taken in appeal. But that was so because the respondent prior to service of the order passed by the Disciplinary Authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned Addl. Solicitor General that CVC recommendations are confidential copy, of which, could not be supplied cannot be accepted. Recommendations of Vigilance prior to initiation of proceedings are different that CVC recommendation which was the basis of the order passed by the Disciplinary Authority.
It is seen that in S.N. Narula Vs. Union of India and Others 2011 (4) SCC 591 decided on 30.01.2004, the Apex Court has again held that if the authorities do consult the UPSC and rely on its report for taking disciplinary action, then the principle of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Any decision of the Disciplinary Authority contrary to that procedure is arbitrary and hence not sustainable. The relevant part of the said judgment is as under:-
6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in Paragraph 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.
Thereafter, the very same issue came up for consideration in Union of India & Another Vs. T.V. Patel 2007 (4) SCC 785. In the said judgment, the Apex Court took a different view and held that supplying a copy of the UPSCs report along with the Disciplinary Authoritys order is sufficient. The relevant part of the said judgment is as under:-
17. As already noticed, Rule 32 of the Rules deals with the supply of a copy of Commision's advice. Rules as read as it is mandatory in character. Rule contemplates that whenever a Commission is consulted, as provided under the Rules, a copy of the advice of the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance shall be furnished to the Government servant along with a copy of the order passed in the case, by the authority making the order. Reading of the Rule would show that it contemplates two situations; if a copy of advice is tendered by the Commission, the same shall be furnished to the government servant along with a copy of the order passed in the case by the authority making the order. The second situation is that if a copy of the advice tendered by the Commission has not been accepted, a copy of which along with a brief statement of the reasons for such non-acceptance shall also be furnished to the government servant along with a copy of the order passed in the case, by the authority making the order. In our view, the language employed in Rule 32, namely "along with a copy of the order passed in the case, by the authority making the order" would mean the final order passed by the authority imposing penalty on the delinquent government servant.
18. Article 320 of the Constitution deals with the functions of Public Service Commission and provides that it shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
19. Article 320(3)(c ) reads:-
320.(3)(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
20. A Constitution Bench of this Court in the case of State of U.P. vs Manbodhan Lal Srivastava, 1958 SCR 533, considered the question as to whether the consultation of the Commission under Article 320(3)(c) is mandatory and binding on the appropriate authority.
21. The arguments that the non-compliance of Article 320(3)(c) vitiates the order passed by the appropriate authority have been repelled by the Court at SCR.pp 543-544:-
"7. Perhaps, because of the use of word "shall" in several parts of Art. 320, the High Court was led to assume that the provisions of Art. 320(3)(c) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. In the first place, the proviso to Art. 320, itself, contemplates that the President or the Governor, as the case may be, "may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted."
The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. If the provisions of Art. 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary.
If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted.
Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services.
It is, therefore, incumbent upon the Executive Government, where it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but, with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed.
If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government.
9. Thirdly, Art. 320 or the other articles in Chapter II of Part XIV of the Constitution deal with the constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a public servant.
Chapter II containing Art. 320 does not, in terms, confer any rights or privileges on an individual public servant nor any constitutional guarantee of the nature contained in Chapter I of that Part, particularly Art. 311. Article 311, therefore, is not, in any way, controlled by the provisions of Chapter II of Part XIV, with particular reference to Art. 320."
Finally, at page SCR p.547 it was held as under: (AIR p.918, para 12) "12. We have already indicated that Art. 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ.
On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has hot been contended at any stage that they had not been complied with - he has no remedy against any irregularity that the State Government may have committed.
Unless, it can be held, and we are not prepared to hold, that Art. 320(3)(c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer."
22. The decision of the Constitution Bench in Srivastava (supra) was reiterated by a three Judge Bench of this Court in the case of Ram Gopal Chaturvedi vs. State of Madhya Pradesh, 1969 (2) SCC 240, it was held in paragraph 7 of the judgment as under:- (SCC p.243) "7. It was argued that the impugned order was invalid as it was passed without consulting the State Public Service Commission under Article 320(3)(c) of the Constitution. There is no merit in this contention. The case of State of U.P. v. M.L. Srivastava 1958 SCR 533 decided that the provisions of Article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action."
23. Counsel for the respondent contended that non-supply of a copy of the advice tendered by the UPSC before the final order was passed deprived the delinquent officer of making an effective representation and therefore it vitiates the order. To support his contention he referred to the decision of this Court rendered in the case of State Bank of India v. D.C. Aggarwal, (1993) 1 SCC 13, where this Court held that the disciplinary authority, while imposing punishment, major or minor, cannot act on material which is neither supplied nor shown to the delinquent. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, cannot be countenanced. Procedural fairness is as much essence of right and liberty as the substantive law itself.
24. He also referred to the decision of this Court in the case of Managing Director, ECIL, Hyderabad vs. B.Karunakar, (1993) 4 SCC 727, where this Court dealt with the non-furnishing of the inquiry report to the delinquent officer. The facts of the aforesaid decision are distinguishable from the facts of the case at hand. The aforesaid decisions are not relevant for the purpose of adjudication of the case at hand.
25. In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.
Thereafter, the said issue came up before the High Court of Delhi in the case of Union of India Vs. Mr. Lalit Kumar W.P. ) 11396/2005. While deciding the said petition on 10.03.2011, the High Court took note of the aforesaid judgment in T.V. Patels case (supra) and held that the finding of the Tribunal to the extent of non-serving of copies of advice of UPSC and recommendations of CVC to the Respondents is not sustainable in the eye of law. Immediately thereafter, the issue came up for consideration before the Apex Court again in the case of S.K. Kapoor (supra) decided on 16.3.2001. In the said judgment, the Apex Court followed its earlier judgment in S.N. Narula (supra) and not the one in T.V. Patel (supra). While doing so the Apex Court stated that both those judgments were of the co-ordinate Bench and in such a situation, the earlier judgment has to be followed. The relevant part of the said judgment is as under:-
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs.
However, the High Court of Delhi has again considered the issue in the case of Union of India and Another Vs. Shri Biswabijoyee Panigarihi and Another WPC No.4539/2012 and connected cases decided on 15.07.2013 and held that it is not necessary that the advice of the UPSC be given to the delinquent before Disciplinary Authority passing its order in the disciplinary proceedings. The relevant part of the said order is as under:-
2. The common point in all the three writ petitions pertains to whether advice obtained from UPSC by the Competent Authority before levying penalty was required to be supplied to the charged officer when report of the Inquiry Officer was forwarded to him and not along with the order levying penalty.
3. In a short decision, which incidentally does not note Rule 32 of the CCS (CCA) Rules, 1965, decided on January 30, 2004, but reported in the year 2011, as (2011) 4 SCC 591 S.N.Narula Vs. UOI & Ors. a two Judge Bench of the Supreme Court held that the advisory opinion obtained from UPSC had to be communicated to the charged officer before the Disciplinary Authority inflicted the punishment and not after inflicting the punishment. In other words the requirement would be to forward advice received from UPSC along with the report of the inquiry while seeking response of the charged officer to the report of the Inquiry Officer.
4. In a reasoned decision, taking note of Rule 32 of the CCS (CCA) Rules, 1965 and noting the decision reported as AIR 1957 SC 912 State of U.P. Vs. Manbodhan Lal Srivastava which considered Article 320 of the Constitution of India, reported as (2007) 4 SCC 785 UOI & Anr. Vs. T.V.Patel, a two Judge Bench of the Supreme Court held that advice received from UPSC was not to be sent to the charged officer when report of the Inquiry Officer was forwarded for his response and that as per the mandate of Rule 32 of the CCS (CCA) Pension, 1965 it would be sufficient compliance with law that the advice received from UPSC was sent along with a copy of the order levying penalty passed by the Competent Authority.
5. Probably for the reason the earlier decision in S.N.Narulas case (supra) was not published when T.V.Patels case was decided on April 19, 2007 the attention of the Bench which decided T.V.Patels case was not drawn to the decision in S.N.Narulas case.
6. Deciding Civil Appeal No.5341/2006 on March 16, 2011, an opinion reported as (2011) 4 SCC 589 UOI & Ors. Vs. S.K.Kapoor, noting the conflicting destinations reached by two co-ordinate Benches of the Supreme Court in S.N.Narulas case (supra) and T.V.Patels case (supra) a two Judge Bench of the Supreme Court observed that it being well-settled that if a subsequent Co-ordinate Bench of equal strength wants to differ with a view taken earlier on it has to refer the matter to a Larger Bench otherwise the prior decision of the Co-ordinate Bench has to be treated as binding on subsequent Bench of equal strength.
7. Only on aforesaid reasoning in S.K.Kapoors case (supra), law declared in T.V.Patels case was not followed.
8. In the three impugned decisions the Tribunal has applied the law declared in S.N.Narulas case.
9. Rule 32 of the CCS (CCA) Rules, 1965 which deals with supply of copy of advice received from UPSC reads as under:-
32. Supply of copy of Commissions advice Whenever the Commission is consulted as provided in these Rules, a copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the government servant concerned along with a copy of the order passed in the case by the authority making the order. XXX XXX XXX
18. It may not be the province of a High Court to comment on the judgment of the Supreme Court which are entitled to respect and in the interest of justice it would be the duty of the High Court to respectfully follow a law declared by the Supreme Court. But faced with conflicting judgments the correct approach by a High Court would be to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgments.
19. Now, the constitutional vision pertaining to the role of UPSC is to confer upon it an advisory jurisdiction pertaining to disciplinary matters, which is evidenced from the use of the expression may in sub-Article 3 of Article 320 of the Constitution of India. Opinions by UPSC on disciplinary matters are not binding on the Disciplinary Authority which has to apply its own independent mind as was explained in T.V.Patels case (supra). Now, logic and commonsense guides us that where an opinion has to be sought after Inquiry Officer records evidence and pens a report it would better serve the purpose of the person likely to be affected by such an opinion i.e. the charged officer, if before seeking the opinion his version is obtained and placed before the opinion maker. This would also be a better compliance with the principles of natural justice. That natural justice demands that it be made known to a person whose interest is in issue as to what is the material which would be used by the decision maker would not be attracted in a situation of the kind i.e. the decision maker who is seized with the report of an Inquiry Officer seeks advice of UPSC and the said advice sought is on the report of the Inquiry Officer without the response of the charged officer thereon.
20. This would be our additional reason to go by the law declared by the Supreme Court in T.V.Patels case which we find is a reasoned opinion.
13. As explained in the aforesaid judgments, under Article 320 (3)(c) of the Constitution of India, 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, the UPSC shall be consulted. Now the question is in a disciplinary matter, at what stage before communication of the final order of the Disciplinary Authority, the UPSC has to be consulted. Under Rule 9(1) of the CCS (Pension) Rules, 1972 and other identical rules also, UPSC shall be consulted before any final orders are passed by the President as Disciplinary Authority withholding pension, gratuity etc. The said rule reads as under:-
9(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
Provided that the Union Public Service Commission shall be consulted before any final orders are passed.
According to Article 311(1) of the Constitution, (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. Under section (2) ibid No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. As regards the reasonable opportunity mentioned in Article 311 (2), before the 42nd amendment in the said Article, as held by the Apex Court in Union of India Vs. Jeevan Ram AIR 1958 SC 965 and a catena of other cases included: (a) an opportunity to a Government servant to deny his guilt and establish his innocence which he can do only if he is told what charges leveled against him are and the allegations as such, charges are based; (b) an opportunity to defend himself by cross-examining the witness in support of his defence; and finally (c ) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him. The opportunity to make representation against the proposed penalty had arisen only when Disciplinary Authority, after considering the enquiry report and the representation of the Government servant against it passed a tentative order proposing to inflict one of the three punishments, namely, dismissal, removal and reduction in rank and communicate the same to the Government servant. Such a proposal was again based on the gravity or otherwise of the charges proved against the Government servant. Thus, the final order to be passed by the Disciplinary Authority was the one passed after having considered the representation of the Government servant against the proposed penalty. However, by the 42nd amendment, the second right of the Government servant to plead for, either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted, has been taken away (Reference: Managing Director, ECIL, Hyderabad Vs. B. Karunakar AIR 1994 SC 1074). It is important to note that both Article 311 and Article 320 fall in Part XIV of the Constitution. While the former is in Chapter-I, the later is in Chapter-II of the same part. Even though, with the 42nd amendment, the second right available to the Government servant to plead for either no penalty or for a lesser penalty has been taken away, there is no change with regard to the duty of the disciplinary authority to arrive at the proposed punishment. Only thing is that the proposed penalty need not be communicated to the Government servant. As the proposed penalty fall within disciplinary matters affecting a person serving under Government as envisaged in Article 320(3)( c), the Disciplinary Authority has to consult the UPSC on it. In other words, even after the aforesaid amendment, consultation with the UPSC includes consultation on the proposed penalty arrived at by the Disciplinary Authority independently. Therefore, the Disciplinary Authority cannot leave it to the UPSC to determine the penalty to be imposed upon the Government servant. In the judgment of Manbodhan Lal Srivastava (supra) also, the Apex Court has clearly stated that consultation with UPSC has been specifically provided for to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. Therefore, it is incumbent upon the Executive Government, where it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
14. However, in this case, it is seen that Inquiry Authority submitted its report on 13.08.2008. The Disciplinary Authority furnished a copy of the said report along with the CVCs advice dated 31.10.2008 to the Applicant and the Applicant submitted his representation against them on 21.04.2009 and on 02.05.2009. Thereafter, the Disciplinary Authority did not consider them at all. It simply referred the entire records to the UPSC for its advice and the UPSC tendered its advice on 11.03.2011. Thereafter, it was the UPSC which has decided what punishment had to be inflicted upon the Applicant. The relevant part of the advice of the UPSC dated 11.3.2011 says the Commission note that the charges established against the CO, constitute grave misconduct on his part and consider that the ends of justice would be met in this case if the penalty of withholding of 25% of admissible monthly pension for a period of 5 (five) years is imposed on Shri R.P.S. Panwar. The gratuity may be released to him if not required otherwise. They advice accordingly. The Disciplinary Authority has simply reproduced the said advice in its order and imposed the very same penalty upon the Applicant. The relevant part of the Disciplinary Authoritys order dated 04.11.2012 reads as under:-
The Commission have analysed the case and have tendered a detailed advice. The Commission have found that all the seven articles of charge against the CO are proved. After taking into account all the aspects to the case, the Commission note that the charges established against the CO, constitute grave misconduct on his part and consider that ends of justice would be met in this case if the penalty of withholding of 255 of admissible monthly pension for a period of 5 (five) years is imposed on Shri R.P.S. Panwar. The gratuity may be released to him if not required otherwise.
Such a finding was given to the Applicant for the first time. He had no opportunity to dispute the said findings. The Disciplinary Authority has also not given any reason as to why the aforesaid advice alone was acceptable and not any of the submissions made by the Applicant. Therefore, the aforesaid order of the Disciplinary Authority is vitiated because it is the result of mechanical exercise of power. When the UPSCs report was the foundation of the decision of the Appellate Authority, denial of opportunity to get a copy of the same before impugned penalty order was issued so that the Applicant could make a representation against it, is violative of the principles of natural justice. It is a well settled law that the requirement to record reason is regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The said principle has been reiterated by the Supreme Court in State of Uttranchal Vs. Sunil Kumar Negi 2008 (4) SCALE 22. The relevant part of the said judgment is as under:-
8. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made.
15. Therefore, in our considered view, it is the statutory duty of the Disciplinary Authority to consider the Enquiry Report and representation of the Government servant against it and, after due application of its mind, to arrive at its own conclusion as to what punishment has to be imposed upon the Government servant, though it still remains as a tentative one and not the final order. Thus, record of the enquiry forwarded to the UPSC by the Disciplinary Authority for its advice shall contain the proposed penalty also. Likewise, the advice of the UPSC also should include its advise on the proposed penalty. The Disciplinary Authority shall take the advise so tendered by the UPSC into consideration before the final order imposing any such penalty on the Government servant is passed. In other words, consultation with the UPSC on all disciplinary matters affecting the person serving under the Government referred to in Article 320(3)( c) includes the proposed penalty by the Disciplinary Authority to be inflicted upon the Government servant and the UPSC is only to advise the Disciplinary Authority whether the punishment proposed by it is the right one or not. However, the Disciplinary Authority has the discretion to accept or reject the advice of the UPSC as it is not mandatory for the Government to accept all advises of the UPSC. As held by the Apex Court in Pradayan Kumar Bose Vs. Honble Chief Justice of Calcutta High Court AIR 1956 SC 285, consultation with UPSC in every case is not necessary. While constitutional safeguards under Article 311 of the Constitution are available to every person, the safeguard in Article 320(3)( c) is one capable of being taken away. Apex Court also held in State of U.P. Vs. Manbodhan Lal Srivastava AIR 1957 SC 912, Article 320(3)( c) of the Constitution does not confer any rights on a public servant so that the absence of consultation should not afford him a cause of action in a court of law. Again in Ram Gopal Chaturvedi Vs. State of M.P. AIR 1970 SC 158, the Apex Court has held that it is not mandatory to consult State Public Service Commission. In this regard, sub-rules (3) and (4) of Rule 15 of the CCS (CCA) Rules, 1965 regarding action on the inquiry report are relevant and they are reproduced as under:-
(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.
16. In the above facts and circumstances of the case, we have no doubt in our mind to say that the Enquiry Officers report is not based on any valid evidence, therefore, it is perverse. The Disciplinary Authoritys order based on the aforesaid report is also not maintainable. Further, we see that the Disciplinary Authoritys order is violative of the principles of natural justice for reasons given above. It is also in violation of Rule 9(1) of CCS (Pension) Rules, 1972 as there were no findings in the Article of Charges or the Enquiry Officers report that the Applicant was found guilty of grave misconduct or negligence. Accordingly, we allow this OA and quash and set aside Annexure A-3 Memorandum of Charges dated 15.03.2007, Annexure A-4 report of the Inquiry Officer dated 13.10.2008, Annexure A-5 CVCs advice dated 31.12.2008, Annexure A-2 advice of the UPSC dated 11.03.2011 and Annexure A-1 order of the Disciplinary Authority dated 04.04.2011. Further, we direct the Respondents to restore the pension of the Applicant and pay the arrears to him with interest as applicable at the GPF rates. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
17. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh